European Commission proposes Directive to enhance damage claims by victims of antitrust infringements

Antitrust infringements, such as cartels or abuse of dominance conducts, can be harmful to the economy considered as a whole, but also to private entities, such as consumers and economic agents. The case-law of the European Union Court of Justice has recognized in several judgments¹ that victims of an antitrust infringement have the right to be compensated for the harm they suffered.

In this context, the European Commission considers that victims of antitrust practices currently face several practical hurdles to judicially claim the damages they have endured – such as procedural obstacles and legal uncertainty – when trying to obtain a fair compensation. According to the Commission, in the last seven years apparently only 25% of its antitrust infringement decisions led the victims seek to obtain compensation.

One of the main reasons for such unsatisfactory results is related to the fact that there are very different national procedural rules governing antitrust redress claims. Thus, according to the Commission, in the majority of cases the probability of the victims being duly compensated for the damage suffered due to an antitrust infringement is greatly dependent upon the Member State in which the claimant happens to be located.

Hence, the Commission has now proposed a new Directive [COM(2013) 404 final, of 11 June 2013] with the aim of discontinuing several procedural obstacles and facilitating damage claims by victims of antitrust breaches. The proposed Directive would apply to legal claims in EU Member States and comprehends the following non-exhaustive measures:

• Easier access to evidence – the victims shall obtain a court order for the disclosure by other parties or third parties of the documentation necessary to sustain a claim;
• Clarification of rules on limitation periods in order to reduce the uncertainty regarding the period of time within which plaintiffs can bring an action for damages (it is proposed a period of at least five years to file a claim from the date in which the victim acknowledges that it has suffered harm);
• Possibility to obtain full compensation, including lost profits (lucrus cessans);
• Clarification of defendants liability rules on passing on defense;
• Provision of a rebuttable presumption that cartels cause harm, with the aim of easing the quantification of the damage the plaintiffs suffer;
• Joint liability of the infringers for the harm caused to the victims – exceptions may apply, for instance when the wrongdoers cooperate with the investigation and obtain immunity from the application of fines they shall only, as a rule, compensate the respective customers;
• Measures aimed to enhance consensual settlements in order to allow a faster resolution of disputes and reduce the costs for the involved parties.

In addition to the proposed Directive, the Commission has also adopted a Communication on quantifying antitrust harm [C(2013) 3440, of 11 June 2013] and a Practical Guide [SWD(2013) 205, of 11 June 2013] in order to assist the courts and parties in antitrust damage actions.

Furthermore, in order to improve access to justice for victims of such antitrust breaches, the Commission has also issued a Recommendation [C(2013) 3539/3] addressed to EU Member States on the implementation of collective redress mechanisms.

Despite the foregoing, we deem, as considered by the Commission, that the proposed Directive does not seek to implement a new system in which the punishment and deterrence shall be left to private plaintiffs. Competition authorities, both EU and national, will continue to play an important and unique role in the investigation and sanction of antitrust infringements. The proposed Directive should, thus, from our perspective, be viewed as aimed to enhance the use of damage actions by private parties, ensuring that fair compensation is granted to those who are victims of antitrust infringements.

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