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Antitrust

Actions for Damages > Overview

Overview: Antitrust damages actions in Europe

Articles 101 and 102 TFEU of the Treaty on the Functioning of the European Union (TFEU) are the core antitrust rules of the EU. Infringements of these Articles can take various forms. Such antitrust infringements include price fixing and the abuse of dominance. They are not only detrimental to the economy at large but they can also cause concrete harm, in the form of e.g. higher prices and/or loss of profits. Victims, namely direct customers, indirect customers, and not least consumers suffer this harm.

As early as 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, subsequently, victims, particularly small and medium enterprises (SMEs) and consumers still faced practical challenges to obtain this compensation. The reason for these challenges was not least because the exercise of the right to receive compensation under EU law depended to a great extent on the legal frameworks of the Member States. The rules of these frameworks also varied from one Member State to another, making the exercise of such right more complex.

That is why 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 (hereafter the “Directive”) entered into force on 26 December 2014. The deadline for transposing the Directive into Member States' legal systems expired on 27 December 2016. All Member States have now implemented the Directive in their legal systems. The Commission is currently monitoring the application of the new rules in practice, and will submit a report to the European Parliament and Council by 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.

Moreover, following a public consultation, the Commission has adopted 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 ("Practical Guide"). 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 for infringements of EU competition law. In a large majority of the Member States, however, collective damages actions for infringements of EU competition law are, in principle, possible. In such Member States, the Damages Directive applies also to collective actions. It therefore renders collective redress more effective in those Member States. 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.

Apart from the above legislation and complementary measures, the Commission is committed to providing assistance to national courts in the application of Articles 101 and 102 TFEU. Upon request, the Commission can transmit information or give its opinion on questions regarding the application of the EU competition rules. It can also act as amicus curiae and submit observations to national courts at its own initiative. Moreover, understood more broadly, the cooperation also includes a funding programme for training of national judges in EU competition law and judicial cooperation between national judges.

Finally, 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).