More EU countries complete implementation of the Damages Directive
Published on 11th Jul 2017
As we reported in March, most major EU countries have now implemented the EU Damages Directive which establishes common EU rights for cartel victims seeking damages. This month, more have joined the list, and only around a third of (mainly smaller) countries are still in default. Some of the latest countries to have implemented the Directive are discussed below.
The Spanish government implemented the Damages Directive by Royal Decree 9/17 (26 May 2017), with effect from 27 May 2017, when the new law was published. Despite the late implementation the law does not have retroactive effect and applies only to actions initiated after that date.
The Decree has made amendments to the Spanish Competition Act and the Spanish Civil Procedures Act. This includes a number of changes to the Spanish competition regime, such as modifying (and expanding) the concept of a cartel in Spanish law. The new law eliminates the previous requirement for a cartel to be secret in nature, and incorporates a new express reference to “concerted practices” as conduct that could be considered a cartel, in place of the previous more prescriptive definition.
The Royal Decree also goes beyond the requirements of the Directive by establishing the liability of a parent company for a subsidiary committing an infringement of competition law (unless the parent company did not have decisive influence over the conduct of the subsidiary). A special liability regime is established for small and medium sized companies fulfilling certain conditions and for those beneficiaries of the exemption from payment of fines in the context of a leniency program.
Perhaps the most significant impact of the Directive in Spain is the substantial extension of the limitation period for competition damages claims from one year to five years, running from the time the infringement has ceased and the claimant has sufficient knowledge of the infringement and the infringer to bring a claim. However, this new period applies only to claims where the cause of action arises after 27 May 2017.
The Directive was implemented by a new Law on Antitrust Damages (you can find both French and Dutch versions linked here). In addition to the requirements in the Directive, the law allows the judge to seek the assistance of the Belgian Competition Authority in quantifying the damages suffered by the claimant – likely to be a key point of contention in proceedings. The Law also introduces a potentially significant penalty for parties (including third parties) and their legal representatives if they fail to comply with the enhanced requirement to disclose documents – up to €10 million.
Belgium already had a “collective action” regime for claims for competition damages, which applied only to infringements of Belgian competition law. The new Law extends this regime to breaches of EU competition law.
The Law is partly retroactive to 27 December 2016. “Procedural” aspects of the Law apply to actions started on or after this date, although it does not specify which measures fall into this category, and judges may need to seek advice from the EU courts on this point.
Austria, Hungary, Poland, Romania and Estonia have also all now implemented the Directive. Bulgaria, Croatia, the Czech Republic, Cyprus, Greece, Latvia, Malta and Portugal have yet to do so.
The EU Commission has previously sent formal letters to all member states who had failed to notify them of transposition of the Directive by 18 January 2017, and it is now examining the measures themselves to ensure the Directive has been fully implemented.