The EU antitrust damages directive was published today in the Official Journal of the EU, which means that the directive will enter into force on 25 December 2014. EU Member States now have two years to implement the directive within their own national legislation, although the impact of the directive is likely to be felt sooner than that.
Now that the clock for implementation has officially started, businesses as a priority need to assess the opportunities and challenges that this new legislation raises. In particular, businesses need to be aware that:
- If you have been involved in an antitrust infringement, the directive is designed to make it easier for those harmed to claim compensation from you.
- If you have suffered as a result of an antitrust infringement, the directive introduces elements which may make it easier for you to bring a successful claim.
Whilst the directive will require only limited changes to the national legislation in the UK, it will bring significant change in other EU Member States (in particular those Members States which currently have no disclosure regime). Businesses now need to prepare for the opportunities and challenges raised by the increased likelihood of claims across multiple jurisdictions. However, the key jurisdictions for bringing antitrust damages claims are likely to remain the UK, Germany and the Netherlands. The courts in these three jurisdictions are increasingly used to hearing antitrust damages claims and they now have an established body of law and judicial precedent, developed over the last 10 years. This is likely to give potential claimants some comfort to the extent that they will have a greater understanding of what to expect when they bring a claim before those courts.
The key elements of the directive are as follows.
- The directive provides national courts with extensive rights to order the disclosure of evidence when those harmed by an antitrust infringement claim compensation. The courts must ensure that such disclosure orders are proportionate (to avoid fishing expeditions) and that confidential and privileged information is duly protected.
- A finding of liability by a national competition authority will constitute full proof before the court of that EU Member State that the infringement occurred. Although the finding of liability by the competition authority of another EU Member State will be at least prima facie evidence of an infringement of antitrust law, that presumption is rebuttable.
- Potential claimants will in most cases have many years after an investigation commences in which to claim damages, and, in some cases, as many as 6 years after the decision of a competition authority has become final. The directive requires all EU Member States to allow the passing-on defence, and thereby to exclude compensation being paid to claimants that have passed on their loss to others, such as their own customers.
- Leniency programmes are specifically protected. National courts cannot at any time order the disclosure of leniency corporate statements and settlement submissions.
- Those harmed by an antitrust infringement will be able to obtainfull compensation for the harm suffered. This should cover the right to compensation for actual loss and for loss of profit, plus payment of interest. However, full compensation should not lead to overcompensation, whether by means of punitive, multiple or other types of damages.
- It shall be presumed that cartel infringements cause harm, although not that a particular claimant suffered harm. This presumption can be rebutted.
- However, the directive requires all EU Member States to allow the passing-on defence, and thereby to exclude compensation being paid to claimants that have passed on their loss to others, such as their own customers.
- National courts are empowered to estimate the amount of harm suffered where it is excessively difficult to precisely quantify the harm suffered on the basis of the available evidence.
- Companies that breach EU antitrust law through their joint behaviour are jointly and severally liable. Joint and several liability, however, will not apply to companies that have obtained immunity in return for their cooperation with the competition authority. These companies will normally be obliged only to compensate their own customers. A narrow exception from joint and several liability also applies under certain very limited circumstances for SMEs that would go bankrupt as a result of the normal rules on joint and several liability.