On 10 November 2014, the EU Council of Ministers (representing the EU Member State governments) formally adopted the EU Antitrust Damages Directive. This is a hugely significant event in EU antitrust and is likely to mark the beginning of an era of increased levels of private litigation seeking damages for infringements of EU competition law.
The Directive requires Member States to implement into national law certain procedural and substantive rules concerning actions in their national courts for damages arising out of infringements of EU competition law. This includes damages cases brought by customers following European Commission cartel decisions but is not restricted to such situations. The rules required by the Directive will also cover, for example, actions for damages arising out of an abuse of a dominant position or arising out of an anti-competitive agreement such as an exclusive supply agreement.
Although damages claims relying solely on infringements of national competition law in the EU are not covered, it is inevitable that the Directive will impact those too. Companies would be well-advised once again to ramp up their competition compliance programmes EU-wide so as to take account of the increased risk of private damages claims.
Once formally signed, the Directive will be published in the EU Official Journal and will enter into force 20 days after its publication. EU Member States will have two years to implement it, but its terms are already being heavily referred to and debated before courts in private damages claims across the EU.