Today, there is a concentration of activity in some jurisdictions outside the US – notably the UK, the Netherlands, Germany and Italy. Claims can be brought on a stand-alone basis by private individuals or business as well as following on from findings of competition infringement by regulators. Claims also are often supplemented by other grounds – from contractual breach, through to infringement of consumer law and other claims including rights of access to data or claims to conspiracy. Both US claimant law firms and litigation funders are establishing local presence in the EU with a view to pursuing claims from US class recovery through to collection in the EU. Their ability to do so is likely to continue to be facilitated by reform at a national and EU level. Historically, difficulties in recovery extended to lack of information and disclosure, uncertainty of core issues such as jurisdiction, applicable law and limitation, as well as the overarching question of how to demonstrate causation and degree of harm.
The European Commission has pressed for reform in this area for many years and continues to do so before the European Parliament. EU Directive 2014/104/EU on antitrust damages actions issued on 26 November 2014 required all member states to enable recovery by introducing a consistent minimum standard on procedural matters such as time periods for limitation and disclosure of documents and on evidential points such as the presumption that cartels cause harm (and that indirect harm results where the direct customer passes its loss onto others in the supply chain). Article 4 of the Directive requires that member states must ensure that all national rules and procedures concerning claims for damages are designed and applied in such a way that they do not make it impossible or excessively difficult to exercise the legal right to full compensation. This is supplemented by practical tools to make recovery a reality – including by making regulatory findings binding on the national courts of the member state concerned and prima facie evidence of an infringement before the courts of other member states, as well as introducing a minimum level of access to the evidence needed by parties to prove their claim (while continuing to preserve categories of evidence created in the context of the European Commission’s leniency and settlement programmes).
Further guidance can be derived in jurisdictions where litigation is actively pursued as the national courts consider the application of these standards in practice. The English courts alone have issued judgments recently that analyse principles attaching to jurisdiction (Claim No. HC17-000682 Vattenfall and Others v Prysmian SpA and others  EWHC 1694 (Ch)) applicable law (Case HC-2012-000196 Deutsche Bahn AG and Others v Mastercard Incorporated and Others), limitation (Case A3/2014/3813 Arcadia Group Brands Limited and others v Visa Inc and others) and quantification of harm (Case HC-2015-000268 BritNed Development Limited v ABB AB and another).
The European Commission’s broader initiative on collective redress (announced on 11 April 2018) is likely also to boost the volume of competition litigation claims by promoting consumer recovery. (See COM(2018) 183: Communication on the New Deal for Consumers, https://ec.europa.eu/info/law/law-topic/consumers/review-eu-consumer-law-new-deal-consumers_en and also COM(2018) 184 on representative actions COM(2018) 185 on unfair terms in consumer contracts.) Member states are expected to introduce their own initiatives on collective recovery. Opt-in is recommended but solutions might range across a spectrum from wholesale opt-out actions along US class-action lines to more constrained models led by representative bodies or requiring claimant opt-in basis. Some member states have already taken the idea up with enthusiasm – with the UK, Italy and the Netherlands introducing a form of opt-out collective action. (This was introduced in the UK with section 47B of the Competition Act (governed by Rules 73–98 of the CAT Rules, with further guidance in section 6 of the 2015 Guide to Proceedings). UK-domiciled entities must opt out; entities in other member states may opt in. There were five applications for a collective proceedings order filed with the UK Competition Appeal Tribunal for approval to date: (Case 1257/7/7/16 Dorothy Gibson v Pride Mobility Products Limited; Case 1266/7/7/16 Walter Hugh Merricks CBE v Mastercard Incorporated and Others; Case 1289/7/7/18 Road Haulage Association Limited v Man SE and Others; Case 1282/7/7/18 UK Trucks Claim Limited v Fiat Chrysler Automobiles NV and Others; Case 1305/7/7/19 Justin Gutmann v London & South Eastern Railway Limited). From these it appears that the UK will be relatively generous on commonality of issues and qualities of representative with a focus on the quality of expert evidence and whether an aggregated model of damage is viable. This certainly will be so if the precedent set by a court of appeal stands, effectively allowing a collective proceedings order to proceed on certification if the economic theory of harm proposed is arguable (a low burden to discharge) (Walter Hugh Merricks CBE v Mastercard Incorporated and Others  EWCA Civ 674). The Dutch class-actions law will also be an opt-out model for Dutch domiciled claimants and opt-in for others. It had been expected to come into force in July 2019 but is more likely to be in place by September 2019. Italy already has consumer class recovery but sweeping reform has recently been announced and is expected to be in force by 2020.
These developments taken together indicate that the volume of competition litigation – and recovery – for claims in the EU will only continue to increase. Available data on the level of damages paid in competition damage cases remains limited. The majority of claims for competition damage brought in the EU currently settle or are litigated for many years without public resolution. The degree of litigation risk and cost of pursuing these cases has meant that generally settlements are agreed at only a small percentage of the sums claimed. That may well change as the procedural reform and access to litigation funding makes pursuit of claims less daunting and the continued flow of judgments on procedural issues as well as quantification and passing on of loss gives greater clarity on what an appropriate measure of recovery should be in any particular case. Certainly, the level of investment by firms and funders with a business model pegged to claims activity indicates that this is anticipated by the market.
The practical take-away for in-house counsel is that they should consider both sides of the coin (ie, briefing and defending claims):
stress test the supply chain to determine if the business may have been affected adversely by competition law infringements and should seek to recover that damage; and
assess exposure and strategic response where conduct could be criticised from a competition perspective and determine how to manage a consistent and contained response to regulatory investigation and the threat of civil litigation progressing at different speeds across multiple jurisdictions at the same time.
The size of claims and number of parties interested in these cases may make resolution difficult to achieve with a single swoop. Pursuit of clarity over the issues, deployment of evidence and the value of claims will pave a route to effective management of claims and finality in outcome.