As of mid-2018, the Damages Directive (Directive) has been incorporated across all European Union (EU) Member States. The European Commission (EC) has closed its previous probes against Member States for failing to implement the Directive by the original December 27, 2016 deadline, but is continuing to assess whether certain transposing national laws are sufficient. In the meantime, a multitude of claims have been and continue to be brought across the EU. The extent to which this trend will continue or whether the landscape of EU antitrust litigation will change is yet to be seen.
By the end of 2017, 98 cartel damages claims were reported as having been brought across 12 EU countries, 94 of which were follow-on claims (71 from national competition authority decisions and 23 from EC decisions) and the remaining four of which were brought on a stand-alone basis.1 According to public sources, 2018 has seen at least approximately 25 cartel damages claims brought across Europe, largely constituting claims in the U.K. following on from the EC’s Trucks decision as well as additional claims against Visa and MasterCard regarding their multilateral interchange fees (MIFs). The appetite for pursuing damages claims is therefore continuing.
THE UNITED KINGDOM
The U.K. has been one of the most active jurisdictions in antitrust litigation in the last year. In October 2018, the U.K. High Court (HC) made its first award of damages in a follow-on cartel claim in BritNed v. ABB based on ABB’s involvement in the Power Cables cartel. Following subsequent review, €11.7 million worth of damages were granted to BritNed, only a fraction of the original €180 million claim (suggesting close scrutiny of the economic evidence presented). The award is nonetheless promising to the multitude of claimants who have brought similar follow-on claims in the U.K. in the last few months.
U.K. courts have also been active in ordering broad disclosures of the EC file to claimants in follow-on claims, a trait which has traditionally made the U.K. an attractive damages claim forum. In two separate judgments relating to follow-on proceedings for Trucks, the HC ordered disclosure of: (i) the entirety of the EC’s file into a confidentiality ring, running to approximately 32,000 documents out of a total set of 39,000 (save for leniency and privileged material); and (ii) a redacted confidential version of the EC’s decision as well as other documents from its file. Permission to appeal the approach in (i) to the U.K. Court of Appeal (CA) was subsequently denied, suggesting that the U.K.’s reputation for permitting broad disclosures is here to stay.
The MIFs-related litigation against Visa and MasterCard has also dominated the U.K. antitrust litigation sphere for a number of years, resulting in three contradictory first instance decisions from the U.K. courts: (i) a July 2016 U.K. Competition Appeal Tribunal (CAT) judgment granting £69 million in damages to Sainsbury’s against MasterCard; (ii) a January 2017 HC judgment finding that MasterCard’s MIFs did not infringe competition law (and would in any event have satisfied the conditions of Article 101(3) Treaty on the Functioning of the European Union (TFEU)); and (iii) a November 2017 HC judgment denying Sainsbury’s damages claim on the basis that the U.K. MIFs did not amount to a restriction of competition by effect.
After hearing appeals related to all three claims, the CA held in July 2018 that the use of default MIFs without bilaterally agreed interchange fees breached Article 101(1) TFEU and confirmed that the claimants were not required to prove the unlawful level of the MIFs. Instead, relevant EU competition law provisions should be applied to determine whether the default MIFs were either wholly or partially unlawful before quantifying the applicable damages to award. All three cases were remitted to the CAT for determination on this basis, rather than the HC, given the CAT’s specialized nature and ability to better deal with complex competition law issues. The outcome of the CAT’s determination, as well as of the continuing multitude of claims brought in relation to Visa and MasterCard’s MIFs in the last few months, is likely to shed more light on the scope of this already long-running dispute.
COLLECTIVE CLAIMS: NEW FRONTIERS?
MIFs-related claims against Visa and MasterCard may potentially even continue on a collective basis, following the CA’s November 2018 confirmation that it is able to review the CAT’s July 2017 rejection of an attempted MIFs-related collective claim brought on behalf of 46 million U.K. consumers. Three separate collective actions have also recently been filed in the U.K. following on from Trucks — the outcome of the pending approvals of such claims may provide long-awaited guidance on the possibility for collective antitrust damages actions, provision for which is ultimately left open to Member States in paragraph 13 of the Directive’s preamble. Participants in the Trucks cartel were otherwise reported to have faced collective damages claims in the Netherlands and Sweden at the end of 2016.
Collective actions may also be more greatly encouraged following approval of the EC’s suggested collective consumer claims regime, formally proposed in April 2018 to allow qualified entities to launch collective claims for damages on consumers’ behalf from businesses breaking the law. The proposal has been progressing slowly through the necessary reviews before finalization, and has recently been reported as facing significant delays due in part to pre-existing similar mechanisms across at least 19 Member States. The scope of the specific harms in respect of which the proposal will apply is also yet to be determined — although antitrust infringements are not specifically referenced, it has been suggested that the proposal be broadened to accommodate this. The proposal’s continuing progression and its eventual adoption may in any case have an encouraging impact on collective claims within the antitrust sphere.
CONCLUSION: WHERE NEXT?
2018 has seen a strong continuation of damages actions across Europe. Whether this will continue, particularly in light of the completed implementation of the Directive, is yet to be seen.
In particular, the U.K.’s current status as a popular jurisdiction for damages claims may well change following its exit from the EU. The U.K. government for example has made it clear from materials published in October 2018 that in a ‘no deal’ Brexit scenario, claimants will no longer be able to base followon damages claims on EC decisions issued post-Brexit. The November 2018 draft Brexit Agreement also does not explicitly address the status of EC decisions for the purposes of such claims, despite including some competition law provisions. As a result, claimants may be limited to bringing stand-alone actions based on U.K. Competition and Markets Authority infringement decisions — however, in practice, it remains to be seen whether EC decisions still have some persuasive or evidential weight in U.K. damages actions post-Brexit.
In any case, these developments could lead to a decline in the U.K.’s popularity as a key damages forum and encourage claimants to look to other jurisdictions for their claims. The scope of such a ‘forum shopping’ exercise is likely to be elaborated on further by the Court of Justice in the pending preliminary request submitted by DAF Trucks (related to a follow-on claim brought in Hungary where DAF has asked, among other questions, whether indirect purchasers can bring claims in jurisdictions where harm has been suffered, despite the harmful event not occurring nor the cartel participant being based in such jurisdiction).2
Finally, despite the predominantly cartels-focused nature of current EU antitrust litigation claims, claims based on other competition infringements may come to the fore. The pending U.K. action filed by Unlockd against Google in April 2018 on the basis of abuse of dominance, together with the Commission’s recent dominance enforcement trend, may well encourage a more diverse set of EU antitrust claims in the near future.