Actions for Damages > Proposal for a Directive on Antitrust Damages Actions
The Commission's proposal for a Directive on Antitrust Damages Actions
On 11 June 2013, the European Commission adopted a proposal for a Directive
on damages actions for breaches of EU Competition law (see
The proposed Directive aims at removing all practical obstacles to
compensation for all victims of infringements of EU Competition law. The
provisions of the Directive will therefore apply to all legal actions, whether
individual or collective, which are available in the Member States.
The proposed Directive contains the following main provisions:
- Parties will have easier access to evidence necessary in
actions for damages. In particular, if a party needs specific documents that are
in the hands of other parties or third parties to prove a claim or a defence, it
may obtain a court order for the disclosure of those documents. The judge will
have to ensure that disclosure orders are proportionate and that confidential
information is duly protected.
- Decisions of national competition authorities, like
the Commission's decisions, will constitute
full proof before civil courts that the infringement occurred.
- Clear limitation period rules are
established, so that parties have sufficient time to bring an action.
In particular, from the moment a victim has the possibility to discover that
he or she suffered harm from an infringement, that
victim should have a period of at least five years to bring a claim. This period
is suspended if a competition authority starts proceedings, so that victims can
decide to wait until the public proceedings are over before they bring a claim.
- Victims should obtain full compensation for the actual loss suffered
but also for lost profits.
- The proposal clarifies the legal consequences of the 'passing on'.
Direct customers of an infringer sometime offset the increased price they paid
by raising the prices they charge to their own customers (indirect customers).
When this occurs, the infringer can reduce compensation to direct customers by
the amount they passed on to indirect customers. Compensation for that amount is
in fact owed to indirect customers, who in the end suffered
from the price increase. However, since it is
difficult for indirect customers to prove that they suffered this pass-on, the
proposed Directive facilitates their claims by establishing a rebuttable
presumption that they suffered a part of the price increase, to be estimated by
- The proposal establishes a rebuttable presumption that cartels cause
harm. This will facilitate compensation,
given that victims often have difficulty in proving
the harm they have suffered. The presumption is based on the finding that more
than 90% of cartels cause a price increase (as found by an external study). In
the very rare cases where a cartel does not cause price increases, infringers
can still prove that their cartel did not cause harm.
- Any participant in an infringement should
be responsible towards the victims for the whole harm caused by the
infringement, with the possibility
of obtaining a contribution
from other infringers for their share of responsibility. However, this should
not apply to infringers who cooperated with an investigation and obtained
immunity from fines before a competition authority; these companies should
compensate only their own purchasers (see below).
The proposal is submitted for adoption to the Council of the European Union and the European Parliament under the ordinary legislative procedure (Article 294 TFEU).
On 2 December 2013 the Council adopted its general approach on the Commission's proposal, which gives the Council Presidency the mandate to start negotiations with the European Parliament and the European Commission with a view to reaching an agreement in the first reading.
For further developments in the legislative process, please check the Parliament's website.
Once the Directive has
been adopted by these institutions, Member States will have two years to
implement the provisions of the Directive in their national legal systems.