Today the EU Damages Directive has been formally adopted by the Council of the European Union. Further information about the Directive is available on our website. The Directive has been a long time in the making and the European Commission hopes that it will encourage and facilitate the bringing of antitrust damages claims, particularly compensation claims by business and consumers who have suffered loss as a result of cartel conduct. The EU Member States have two years to implement the Directive, but it is anticipated that Courts in the Members States will begin to apply its provisions in the meantime to the extent that they are able to do so.
Does the Directive matter to my business?
The Directive will create risks and opportunities for all businesses. The Directive matters to you if:
- You have been involved in an antitrust infringement or are currently subject to an antitrust infringement investigation. The Directive is intended to make it easier to enforce rights and get compensation for anyone who may have suffered a loss as a result of unlawful anti- competitive conduct.
- Anyone in your supply chain has been involved in an antitrust infringement.You may be able to bring a claim if you believe you have suffered loss, and you may become involved in disputes between other companies in your supply chain if any overcharge was arguably passed through you or down to you.
- There are disputes in your industry around antitrust law issues such as alleged dominance, exclusivity, exclusionary conduct and foreclosure. Although primarily focused on compensation for victims of cartels , the Directive will also make it easier for the victims of antitrust law infringements to recover losses suffered.
How does the Directive change things?
The Directive will mean change for all the EU’s domestic systems, in some cases significant change. Some key changes include:
- The introduction of presumptions in favour of claimants, including a presumption that any cartel infringement has caused loss. This will mean a shifting of the burden of proof.
- Limitation periods for antitrust damages claims will be a minimum of five years in all Member States, and will not run until at least one year after the competition authority finalises its proceedings. Some Member States currently have shorter periods.
- Even those Member States which do not currently have a document disclosure regime as part of their civil litigation system will be required to introduce powers to order disclosure in antitrust damages cases.
- The rules on joint and several liability will change, with a successful immunity applicant having some exceptional protection from joint and several liability.
What should I do about the Directive?
You should consider the following issues in relation to any actual or potential antitrust dispute in which you are or may be involved:
- Do you have the right resources in place to assess your risk and devise an overall strategy to deal with the increased likelihood of claims across multiple jurisdictions and multiple levels of the supply chain?
- Can you avoid a proliferation of claims, with the resulting long-lasting impact on contingent liabilities, cost in money and management time, disruption to the business, damage to ongoing customer relationships and impact on your overall bottom line?
- How will you deal efficiently and effectively with claims that are threatened or brought, particularly with regard to the increasing burden in terms of disclosure, increased limitation periods in many jurisdictions and an increasingly sophisticated claimant bar, often with global reach?
- If you feel that you are a victim of antitrust infringement, for example an abuse of dominance or an exclusionary practice, are there any developments you can take advantage of to help remedy the problem?