After a very long period of gestation, on 11 June 2013, the EC published two documents that together make up its private antitrust enforcement package and two further documents that deal with collective redress mechanisms in the EU Member States.
The private antitrust enforcement documents are a proposal for legislation on certain rules governing antitrust damages actions (such as claims following a decision by the EC to fine a cartel) and a communication on how to quantify harm caused by infringements of the EU antitrust rules. The legislative proposal contains specific measures that would apply in each Member State of the EU to improve the national legal frameworks governing actions for damages. The communication specifically addresses the problem of determining the specific amount of harm suffered as a result of a competition law infringement, which is currently one of the main obstacles to obtaining effective compensation.
The collective redress documents are a non-binding recommendation on common principles for collective mechanisms to be put in place in each EU Member State for violation of EU law (not just antitrust law) and a communication called “Towards a European horizontal framework for collective redress”. The recommendation and communication on collective redress set out a series of common, non-binding principles to apply in the Member States, intended to assist citizens and companies in the enforcement of the rights granted to them under EU law (of all types). The EC is keen to point out that this needs to be clearly distinguished from U.S.-style “class actions”.
The area of antitrust damages actions continues to develop rapidly in the EU and the EC’s proposals will serve to facilitate this. The EC also wants collective redress to develop in the EU, but it remains to be seen to what extent the non-binding principles will gain traction amongst the widely differing legal regimes and litigation cultures in the EU.