While continuing to defend its position on barring access to leniency applications, the EC continues otherwise to support the ability of private claimants to recover damages for infringements of competition law in the EU. Its latest move in this direction is the publication on June 17, 2011, for consultation of a draft guidance paper on quantifying harm in actions for damages for breaches of the EU competition rules. The consultation closes on Sept. 30, 2011.
The draft guidance covers any type of infringement of Article 101 of the Treaty on the Functioning of the European Union (TFEU) (the basic ban on anti-competitive agreements in the EU) and Article 102 TFEU (the ban on abuse of dominance in the EU). It is not limited to cartels. The principles would also equally apply to actions under national competition law rules in the EU, which generally follow Articles 101 and 102.
The principal purpose of the paper is to “present the main methods and techniques currently available to quantify … harm [caused by infringements of the EU competition law rules].” It will encourage, as is the intention, the further development of the nascent “plaintiff bar” in the EU competition law field.