Today, the European Commission (Commission) has adopted legislative proposals for private antitrust damages actions and collective redress, along with practical guidance on quantifying harm caused by breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union (TFEU).
Private antitrust damages actions
The legislative proposals in respect of private antitrust damages actions are contained within a European Parliament and Council Directive on damages actions. This sets out rules in relation to disclosure, limitation periods, limitations of liability for immunity recipients, the passing on defence and the quantification of damages (the Damages Directive).
Arguably, the most interesting component of the Damages Directive is an absolute protection against national courts ordering the disclosure of leniency corporate statements and settlement submissions.
In this respect, the Commission's proposals aim to strengthen and protect the public enforcement of competition law and the integrity of the Commission and national competition authorities' leniency regimes: an issue which has been of considerable concern to the Commission since the 2011 European Court of Justice (ECJ) judgment in Pfleiderer AG v Bundeskartellamt (Case C-360/09) which held that it was for national courts to determine on a case-by-case basis whether to disclose leniency materials to damages claimants.
The timing of the Commission's proposals is also particularly noteworthy in light of the ECJ's judgment last week in Bundeswettbewerbsbehörde v Donau Chemie AG and others (Case C-536/11) which leans towards support of private antitrust damages actions rather than protecting leniency regimes. Donau Chemie AG builds upon Pfleiderer with a finding that national law provisions which prevent a third party from accessing documents relating to national antitrust proceedings (including leniency documents), without the consent of the parties to proceedings, are not compatible with EU law because they prevent national courts from weighing up the interests involved on a case-by-case basis.
By contrast, the Damages Directive indicates that the Commission wishes the law to evolve in the opposite direction by protecting leniency corporate statements and settlement submissions from disclosure to third parties.
The Commission has also adopted a proposed non-binding Commission recommendation and a Commission communication in relation to establishing a European horizontal framework for collective redress. This proposal has been produced despite the widespread concern that facilitating collective redress would bring in US-style litigation.
The Commission is clear in both the recitals to the recommendation and the communication that an abusive litigation culture should be avoided and, as such, the safeguards in the recommendation should be espoused (for example, the avoidance of punitive damages and intrusive pre-trial disclosure).
Guidance on quantifying harm
Finally, the Commission has today issued guidance to assist national courts in quantifying the financial harm suffered by a claimant following an infringement of Article 101 or 102 TFEU. The Commission sets out relevant economic methods and techniques for quantifying the harm in damages actions in antitrust cases and the considerations to take into account in order to choose the optimum method in the particular circumstances.
The Commission's guidance is not binding on national courts. Its utility will depend on the extent to which national courts, and indeed claimants and defendants, are willing to make use of the guidance in proceedings. It may nonetheless prove useful in facilitating national proceedings which are on the increase.
What happens next?
Although the Commission's legislative proposals in respect of private antitrust damages actions and collective redress have been anticipated for some time, they raise important questions as to the desired balance of increasing private redress while maintaining the protection of public enforcement regimes.
It remains an open question, therefore, as to whether the Commission will succeed in persuading the EU Member States to set aside the clear jurisprudence of the Community Courts aimed at facilitating, where appropriate, the disclosure of leniency documents.