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Antitrust damages actions in Europe

All Member States have now implemented the 2014 Directive on Antitrust Damages in Europe that removes the main obstacles to effective compensation, and guarantee minimum protection for citizens and enterprises, everywhere in the EU.

Overview

Infringements of Articles  101 and 102 of the Treaty on the Functioning of the European Union (TFEU) can take various forms. Such as price fixing and the abuse of dominance. They can cause concrete harm to direct and indirect customers and end consumers in the form of higher prices and/or loss of profits.

In 1973, the Court of Justice of the European Union (CJEU) held that the EU antitrust rules “create direct rights in respect of the individuals concerned which the national courts must safeguard” (Case C-127/73, BRT v SABAM). In later rulings, such as Courage and Crehan (Case C-453/99) or Manfredi (C 295/04 to C 298/04), the CJEU laid the foundation for the right of any individual, citizen or business, to claim full compensation for the harm caused to them by an infringement of EU antitrust rules.

However, victims, particularly small and medium enterprises (SMEs) and consumers still faced practical challenges to obtain this compensation because the exercise of the right to receive compensation under EU law depended on the varied legal frameworks of the Member States, which made the exercise of such rights highly complex.

In 2013, the Commission proposed a Directive, which would remove the main obstacles to effective compensation, and guarantee minimum protection for citizens and enterprises, everywhere in the EU. Following its adoption in accordance with the ordinary legislative procedure, Directive 2014/104/EU on Antitrust Damages Actions entered into force on 26 December 2014.

All Member States implemented the Directive into their legal systems by 2018. The Commission published a report on the implementation of the Antitrust Damages Directive in December 2020.

The Commission also amended Regulation 773/2004 and four related Notices (Access to the File, Leniency, Settlements and Cooperation with National Courts) to align them with the Directive. These amendments concern mostly the disclosure and use of information included in the Commission’s files.

The Commission has also adopted A Communication on the protection of confidential information for the private enforcement of EU competition law by national courts. The Communication seeks to help national courts when they deal with requests for the disclosure of evidence in private enforcement actions by identifying measures to protect confidential information.

Complementary guidance to the Directive are the Commission’s Passing-on Guidelines and Practical Guide on quantifying antitrust harm in damages actions.  They aim to help national courts, parties to antitrust damages actions and other stakeholders to quantify damages caused by antitrust infringements.

The Damages Directive does not require Member States to introduce collective redress mechanisms however they are, in principle, possible. In those Member States where the Damages Directive applies also to collective actions, the Directive makes collective redress more effective. For example, through its disclosure rules, the Directive can ensure that a consumer representative gets access to the necessary data to make its case before the national judge.

Victims of infringements of the antitrust rules of the European Economic Area (EEA) can also bring actions for damages caused by such infringements. The EFTA Court established that Articles 53 and 54 EEA, which are equivalent to Articles 101 and 102 TFEU, could be invoked in a dispute between individuals to claim compensation for a violation of the rights recognised thereof. The EFTA Court provided guidance to the national courts concerning damages actions for competition law infringements on several occasions (see case E-6/17, Fjarskipti hf. V Síminn hf. and case E-10/17, Nye Kystlink AS and Color Group AS and Color Line AS).

 

The amendments to Regulation 773/2004 and the four related notices: