Actions for Damages > Proposal for a Directive on Antitrust Damages Actions
Proposal for a Directive on Antitrust Damages Actions
On 17 April 2014, the European Parliament adopted a text of the Directive on antitrust damages actions which was agreed between the European Parliament and the Council during the ordinary legislative procedure. The agreed text of the Directive has been sent to the EU Council of Ministers for final approval. Once the Directive is adopted, Member States will have two years to implement the provisions of the Directive in their national legal systems. See the Commission press release and memo.
The text adopted by the Parliament is based on the Commission proposal for a Directive on damages actions for breaches of EU Competition law, which was adopted on 11 June 2013 (see press release and FAQ).
The agreed text of the Directive aims at removing practical obstacles to compensation for all victims of infringements of EU antitrust law. The provisions of the Directive will apply to all damages actions, whether individual or collective, which are available in the Member States. The proposal also seeks to optimise the relationship between private enforcement of the EU antitrust rules through damages actions and public enforcement of those rules by the Commission and national competition authorities.
The agreed text of the Directive contains the following main provisions:
- Parties will have easier access to evidence necessary in actions for damages in the antitrust field. In particular, if a party needs 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. Disclosure of categories of evidence, described as precisely and narrowly as possible, will also be possible. The judge will have to ensure that disclosure orders are proportionate and that confidential information is duly protected.
- Similarly as a Commission infringement decision, a final infringement decision of a national competition authority will constitute full proof before civil courts in the same Member State that the infringement occurred. Before courts of other Member States, it will constitute at least prima facie evidence of such infringement.
- Clear limitation period rules are established so that victims have sufficient time to bring an action. In particular, victims will have at least 5 years to bring damages claims, starting from the moment when they had the possibility to discover that they suffered harm from an infringement. This period will be suspended or interrupted if a competition authority starts infringement proceedings, so that victims can decide to wait until the public proceedings are over. Once a competition authority's infringement decision becomes final, victims will have at least 1 year to bring damages actions.
- The agreed text clarifies the legal consequences of the 'passing on'. Direct customers of an infringer sometimes 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 agreed text of the Directive facilitates their claims by establishing a rebuttable presumption that they suffered a part of the price increase, to be estimated by the judge. The agreed text of the Directive contains provisions to avoid that claims by both direct and indirect purchasers lead to overcompensation.
- Victims should obtain full compensation for the harm suffered, which covers compensation for actual loss and for loss of profit, plus payment of interest from the time the harm occurred until compensation is paid.
- The agreed text of the Directive 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 (joint and several liability), with the possibility of obtaining a contribution from other infringers for their share of responsibility. However, this will not apply to infringers which obtained immunity from fines in return for their voluntary cooperation with a competition authority during an investigation; these companies will normally be obliged to compensate only their own customers. Furthermore, a narrow exception from joint and several liability is foreseen under certain conditions for SMEs that would go bankrupt as a consequence of the normal rules on joint and several liability.
Ordinary legislative procedure
The Commission proposal was submitted for adoption to the European Parliament and the Council of the European Union 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 of reaching an agreement in the first reading.
- On 27 January 2014, the ECON Committee of the European Parliament adopted its Report on the Proposal and provided the Rapporteur with a mandate to start trilogue negotiations with the Council and the Commission in view of reaching an agreement in first reading.
- In February and March 2014, three political trilogues and several technical meetings took place in order to reach an agreement on the text. This agreement was reached on 20 March 2014.
- On 26 March 2014, COREPER endorsed the agreed result of the trilogues.