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Antitrust

Actions for Damages > Directive on Antitrust Damages Actions

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Damages Directive: Main changes brought by the Directive

Directive 2014/104/EU on antitrust damages actions was adopted on 26 November 2014 and published in the Official Journal of the European Union on 5 December 2014.

The Directive pursues two complementary goals. First, it removes practical obstacles to compensation for all victims of infringements of EU antitrust law. Second, the Directive fine-tunes the interplay between private damages actions and public enforcement of the EU antitrust rules by the Commission and national competition authorities.

Main changes:

  • The Directive clarifies that victims are entitled to full compensation for the harm suffered due to an infringement of competition law, which covers compensation for actual loss and for loss of profit, in addition to the payment of interest from the time the harm occurred until compensation is paid.
  • Parties have easier access to evidence they need 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, is also possible. Disclosure orders must be proportionate and national courts are required to duly protect confidential information.
  • Similarly to the effects of a final infringement decision of the Commission, a final infringement decision of a national competition authority constitutes full proof of the infringement before the civil courts in the same Member State. Before courts of other Member States, it must constitute at least prima facie evidence of the infringement.
  • The Directive establishes clear limitation period so that victims have sufficient time to bring an action. In particular, victims 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 is suspended or interrupted if a competition authority starts infringement proceedings, so that victims can decide to wait until the public proceedings are over. In such case, once a competition authority's infringement decision becomes final, victims have at least 1 year to bring damages actions.
  • The Directive clarifies the legal consequences of "passing-on". Direct customers of an infringer sometimes offset the artificially increased price they paid by raising the prices they charge to their own customers (indirect customers). Subject to the commercial practices in a particular industry, indirect customers may typically be those that in the end suffer from the artificial price increase. At the same time, it may typically be difficult for indirect customers to prove that they suffered harm due to the passing-on. To address this difficulty, the Directive facilitates claims of such indirect customers in that it establishes a rebuttable presumption that they suffered harm. Furthermore, national courts have the power to estimate the effects of passing-on and the Directive contains provisions to avoid that claims by both direct and indirect purchasers lead to overcompensation. The Directive establishes a rebuttable presumption that cartels cause harm. This facilitates compensation, given that it has often been difficult for victims of cartel infringements to prove that they have actually suffered harm as a result of a cartel. The presumption is supported by the finding that more than 90% of cartels cause a price increase (as found by a study). Of course, infringers are free to show that in a specific case the cartel did not cause harm.
  • Infringers are responsible vis-à-vis 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, to safeguard the effectiveness of leniency programmes, this does not apply to infringers who obtained immunity from fines in return for their voluntary cooperation with a competition authority during an investigation. These immunity recipients will normally be obliged to compensate only their (direct and indirect) customers but not those of other infringers. Furthermore, a very narrow exception from joint and several liability is provided for SMEs that would otherwise go bankrupt.
  
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