Implementation of the Damages
Directive across the EU
The Damages Directive1, which seeks to promote and harmonise the private
enforcement of EU competition law before national courts across the
European Union – and which was first published in December 2014 after
more than ten years of debate – was due to be transposed into national law
by each Member State by 27 December 2016.
While most Member States did not meet this deadline2, it is nevertheless
already apparent that there are divergences in the approach of certain
jurisdictions to its implementation.
This Briefing Note considers what we know so far about the approach to implementation of the Damages
Directive across certain key EU jurisdictions and the extent to which the differences between the
private damages regime in the UK and the equivalent regimes in other Member States will be narrowed
as a result. It also highlights the key implications for clients either bringing, or defending, competition
damages actions in the EU.
1 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for
damages under national law for infringements of the competition law provisions of the Member States and of the European Union
(the “Damages Directive”).
2 It is understood that only Denmark, Finland, Hungary, Luxembourg, Sweden and Latvia (partly) transposed the Damages Directive
within the required deadline. Italy voted to approve the implementation of the Damages Directive on 18 January 2017. It is
possible to track the progress of each Member State’s implementation via the European Commission website at: http://ec.europa.
Introduction to the Damages Directive
It is well established that any person has a right to
be compensated for loss suffered as a result of an
infringement of EU antitrust rules. However, it has
clearly been easier for victims of anti‑competitive
behaviour to claim compensation in some Member
States than in others as a result of the differences
in the private enforcement regimes across the
different Member States. The European Commission
was particularly concerned that the lack of
developed rules in some Member States could
effectively prevent victims from exercising their
rights to claim compensation in those jurisdictions.
Against this backdrop, the Damages Directive seeks
to ensure that anyone who has suffered harm
caused by an infringement of EU competition law
(or equivalent national laws in Member States)
can effectively exercise their right to claim full
compensation for that harm.
Key provisions include empowering national courts
to order disclosure, making final infringement
decisions of national competition authorities
binding on their own national courts (and prima
facie evidence of infringement in other Member
States’ courts), recognising the passing-on defence,
introducing a rebuttable presumption that cartels
cause harm, codifying the joint and several liability
of co-infringers and setting a common approach to