EU adopts antitrust damages directive

United Kingdom

On 26 November 2014, the European Parliament signed into law the new EU Antitrust Damages Directive, which has now been published in the OJEU. The aim of the Directive is to facilitate citizens and companies pursuing damages claims for breaches of EU competition law before their national courts.

It is already well established that EU competition law has direct effect, meaning that anyone can claim compensation before national courts for harm caused to them by an infringement such as a cartel or an abuse of a dominant market position. However, procedural aspects of individual national legal systems have made this difficult and marked differences in the different countries have led to uncertainty and the uneven enforcement of the right to compensation across the EU. The new Directive aims to remove a number of these procedural obstacles to obtaining compensation and the geographic disparities in the enforcement of the right to compensation.

The Directive applies to all damages actions, whether individual or collective, which are available in the Member States. It also seeks to strike an appropriate balance between encouraging follow-on damages claims without prejudicing leniency programmes and other aspects of public enforcement by the European Commission and national competition authorities.

Member States need to implement the Directive in their legal systems by 27 December 2016.

The main changes brought about by the Directive

  • National courts will be able to require the disclosure of evidence relevant to a claimant’s claim for compensation (excluding leniency statements and settlement submissions produced under leniency programmes and settlement procedures).
  • The finding of an infringement by a competition authority or court should not be ‘re-litigated’ in a subsequent damages action. Where the claim is brought in the same Member State as the authority or court that made the finding, that finding will be full proof of an infringement. Where the action takes place in a different Member State, the finding will be deemed to be prima facie evidence of an infringement.
  • Claimants will have at least five years to bring damages claims, with the limitation period starting to run from the time the claimant is aware, or can reasonably be expected to be aware, of: i) the behaviour and the fact it constitutes an infringement; ii) the resulting harm; and iii) the identity of the infringer.
  • A clarification of the ‘passing-on’ rules. Where a defendant seeks to show that a claimant has offset an overcharge resulting from an infringement by passing it on to its own customers, the burden of proving the pass-on shall be on the defendant. Where the end-customer wishes to bring its own claim for damages in relation to the overcharge it has incurred by way of pass-on, the burden of proving the existence and scope of the pass-on will be on that end-customer claimant.
  • A claim can be made for actual loss and for loss of profit, plus interest from the time the harm occurred.
  • There is a rebuttable presumption that cartels cause harm, lessening the evidentiary burden on claimants.
  • Where more than one undertaking participates in an infringement, they will be jointly and severally liable for the harm caused, with the exception of infringers who have obtained immunity from fines as part of a leniency programme.

Next steps

The Directive will enter into force on 27 December 2014, following which Member States will have two years to implement it. It is anticipated that the implementation of the Directive will lead to an increase in private damages actions in the EU, although it remains to be seen how the changes outlined above will operate in practice, particularly as regards disclosure and the recognition of infringement decisions by other Member States.

The European Commission has started drafting changes to its antitrust procedures to take account of the Directive, in the form of minor amendments to the rules on whistleblowers, settlements and access to evidence. The Commission will want to ensure that the rules are clear as to the types of documents in respect of which claimants can seek disclosure, and that the effectiveness of its leniency programme is not compromised by any uncertainty surrounding the Directive. The Commission is expected to announce a three month consultation on the draft changes shortly.