EU formally adopts Cartel Damages Directive

Written on 10 Nov 2014

On 10 November 2014, EU Member States formally approved a new Directive on antitrust damages actions. The Directive is aimed at fostering private law enforcement of damages claims, adopting measures to give victims greater access to evidence and more time to make their claims.

The European Commission originally proposed the legislation in June 2013, citing the procedural obstacles and widely divergent rules for bringing damages actions that existed in many Member States. Representatives of the European Parliament and Member States’ governments agreed the text in March 2014, with final approval by the Council of Ministers being given today.

Despite Germany, Poland and Slovenia registering their dissatisfaction with parts of the text and abstaining from the vote, the Commission welcomed the Directive as having being designed to achieve a more effective enforcement of EU antitrust rules overall, by fine tuning the interplay between private damages claims and public enforcement (see http://bit.ly/1EpbpL4).

The Directive also protects the regulator’s whistle-blowers program, containing safeguards to ensure that facilitating damages actions does not reduce companies’ incentives to cooperate with the competition authorities (the press release is available at (http://bit.ly/1u6nbc9).
The main advantages of the new Directive include:

  • Easier access to evidence, with parties being able to obtain a court order for the disclosure of documents when a claim for damages is made.
  • Once a national competition authority declares that an infringement has taken place, this will be irrefutably established as proof of that infringement for the purposes of an action for damages before courts of the same Member State.
  • The establishment of clear deadlines for bringing actions, with the limitation period for filing a claim for damages being at least one year from the time when an infringement decision by a competition authority has become final.
  • Procedural rules concerning indirect purchasers suffering harm along the distribution chain have also been established.

The Directive is expected to be formally signed-off during the Parliament’s plenary session at the end of November. It will enter into force 20 days after its publication in the EU Official Journal, and Member States will then have two years to implement it under national legislation.
Guidelines will also be drafted by the Commission on the passing-on of overcharges to assist the National Courts and respective parties.

 
A copy of the Directive and other relevant documentation is available at http://bit.ly/1tCKs0h.