Antitrust: Legislative initiative on Directive to facilitate damages claims by victims of antitrust violations
On April 17, 2014 the European Parliament adopted a text of the Directive on antitrust damages, based on the Commission’s proposal for a Directive on antitrust damages actions for breaches of EU competition law, adopted back on June 11, 2013.
According to the provisions of this Directive, parties will have an easier access to the evidence they need in order to prove a claim or a defense and the judge will ensure that disclosure orders are proportionate and that confidential information is duly protected. Furthermore, claimants will be able to rely on a final decision of a national competition authority finding an infringement, such decision to automatically represent infringement proof before courts.
According to the new rules, victims have a right to obtain full compensation for actual loss and for loss of profits, plus payment of interest from the time the harm occurred until compensation is being effectively paid.
In cases where price increases due to an infringement are passed along the distribution chain, the Directive aims at ensuring that those who actually suffered the harm will be the ones receiving compensation. The Directive establishes a rebuttable presumption that cartels cause harm. In combination with the power of national courts to estimate the amount of harm, this will help victims in the task of proving and quantifying the harm they have suffered.
The Directive provides for the suspension of limitation periods/pending court proceedings to allow parties sufficient time to try and reach a consensual settlement, without the risk of losing procedural rights in the meantime. Further, the Directive clarifies the effect of partial consensual settlements (e.g. where a claimant settles with only one of the co-infringers) on subsequent actions for damages.
The Directive provides for two exceptions concerning evidence included in the investigation of a competition authority:
- leniency statements and settlement submissions can never be disclosed; this is aimed to keep companies incentivized to provide information to competition authorities;
- certain information produced within public enforcement proceedings can only be disclosed after the investigation is closed. This concerns three categories of evidence: (i) information prepared by a party specifically for the proceedings (such as replies to questions from the authority); (ii) information drawn up by a competition authority and sent to parties in the course of the proceedings (such as statements of objections); and (iii) settlement submissions that have been withdrawn.
Also, the Directive provides that the immunity recipient is primarily liable only towards its own customers (or providers). However, to safeguard the right to compensation, the immunity recipient would nevertheless have to pay any sums necessary to achieve a full compensation of other injured parties who are unable to obtain it from the other infringers.
A formal approval of the Parliament's position by the Council will complete the ordinary legislative procedure. Once the Directive has been officially adopted, Member States will have two years to implement the provisions in their legal systems.