A Commission decision concluding that EU competition law was infringed is considered to be binding proof that the illegal behavior took place. Based on this presumption, injured citizens and companies can claim damages before the national courts. In order to facilitate such private, or collective, damages, and to harmonize national laws in this field, the Commission has proposed legislation in a Directive on Antitrust Damages Actions (Directive), for claims by victims of EU competition law violations.1 The Directive is intended to optimize the relationship between private enforcement of EU competition law through damages actions and public enforcement of those rules by the Commission and national competition authorities (NCA). The European Union is set to approve the Directive shortly, and the Member States will have two years to enact their respective implementing regulations.

The rules contained in the Commission Directive deal with evidence, the effect of NCA decisions, the nature and extent of liability, limitation and settlements in order to remove any practical obstacles when injured pasrties seek compensation for infringements of EU Competition law.

In order to remedy information asymmetry, which typically exists in antitrust proceedings, the Directive also provides for the possibility of disclosure of evidence and therefore for easier access to necessary evidence. A “reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of a claim for damages” will have to become the legal standard to obtain a disclosure order, or any other national equivalent like a provisional judgment. Disclosure requests must be specific and proportionate. The scope, confidentiality, and cost of gathering the information requested is to be taken into consideration by a court. Any failure to comply with disclosure obligations may be sanctioned, e.g., by giving the court the possibility to draw adverse inferences from withholding such information. Leniency corporate statements and settlement submissions will be excluded from disclosure. However, other information collected in administrative proceedings, as well as withdrawn settlement submissions, may be disclosed if the authority has closed the proceedings.

The Directive empowers national courts to estimate the harm caused by anticompetitive infringements on the basis of the available evidence. In the case of cartel agreements, claimants will benefit from a rebuttal presumption that they have suffered harm. Furthermore, any participant in an infringement is held (jointly and severally) liable for the harm caused to injured parties. This does not apply to infringers who have received immunity pursuant to the Commission’s Leniency Notice.

Injured parties will have at least five years to bring damages claim. This time period will start from the moment that the injured party discovers that it has suffered harm from the infringement. In the event that a NCA commences infringements proceedings, the five-year period will be suspended in order to provide the party a choice of waiting until the public proceedings are over, after which the injured party will have  one year to bring a damages action.