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European Union: Draft Directive on Damage Claims by Victims of Antitrust Violations

(June 30, 2014) In April 2014, the European Parliament adopted a proposal for a Directive regulating various aspects of actions for damages suffered by victims of antitrust violations. The European Commission initially proposed the Directive in June 2013. (European Commission, Actions for Damages: Proposal for a Directive on Antitrust Damages Actions, EUROPA (last updated Apr. 23, 2014).)

The European Court of Justice has upheld the right of victims of antitrust violations to institute legal proceedings before a national court. In actuality, victims have filed few claims due to the hurdles they have encountered under the disparate rules in the EU Member States on evidence and time limits for filing. Moreover, costly legal proceedings discourage individuals and small- and medium-sized companies from filing suits. Only 25% of antitrust infringements initiated by the Commission during the last seven years have resulted in civil suits for damages. (Press Release, European Commission, Antitrust: Commission Proposes Legislation to Facilitate Damage Claims by Victims of Antitrust Violations EUROPA (June 11, 2013).)

The final text of the Directive, which will be sent to the Council of Ministers for final adoption, contains the following highlights:

  • establishment of clear limitation rules in order to enable victims to file actions. The minimum established is a five-year limitation period to file an action, commencing from the time the victim could have discovered that they had suffered damage because of the competition infringement. There is a time limit of one year from when the national competition authority’s decision that there was an infringement becomes final;
  • compensation in full for the damage incurred, which includes compensation for actual loss and for loss of profit, plus payment of interest from the time the damage occurred until compensation is paid;
  • refutable presumption that cartels cause damage. This will facilitate the victims’ ability to prove that they indeed have suffered damage. The presumption is based on a study that showed that more than 90% of cartels cause a price increase;
  • better access to evidence needed in antitrust cases. The Directive provides that if a party needs access to files that are held by the other parties, it may obtain a court order to access the documents;
  • joint and several liability, that is, any participant in infringement proceedings will be liable to the victims for the entire harm caused by the infringement. A narrow exemption is permitted in the case of small- and medium-sized companies that would risk bankruptcy if the rule of joint and several liability were to be applied;
  • “passing on.” A new provision enables the last ones in the distribution chain, who have suffered damage because of a price increase that has been “passed on,” to file an action; and
  • provision for private settlements between companies and victims that will expedite resolution of disputes. (Actions for Damages: Proposal for a Directive on Antitrust Damages Actions, supra.)