The Commission’s proposal for a directive on actions for damages caused by infringements of antitrust law in Member States

Infringements of antitrust law can cause serious harm to consumers and businesses in the European Union. Under EU law the victims of infringements of antitrust law can claim compensation for the actual loss, for loss of profit and payment of interest accruing from the moment of time the harm occurred until the moment compensation is paid. Actions for damages for an infringement of national and EU antitrust law are governed by the national law of the Member States. To ensure the effectiveness of the right of the victims to claim damages the European Commission presented on 11 June 2013 a proposal for a directive 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 (COM (2013) 404 final).

This proposal is a follow-up to the 2005 Green Paper and the 2008 White Paper as wells as to the broad consultations amongst the different stakeholders. The proposal does not deal with the public law aspects of the enforcement of antitrust rules in the Member States of the European Union, nor does it give rules on jurisdiction and applicable law in this respect. The proposal focuses only on the harmonisation of certain aspects of the national law of the Member States. The proposal deals with the rules on disclosure of evidence, as the victims of infringements of antitrust rules often encounter difficulties in obtaining all the evidence necessary to start proceedings against the (alleged) undertakings causing the infringements. The courts of the Member States must be able to order disclosure of the required information. However, this power is limited by the risk of jeopardising the public enforcement of antitrust rules.

Another aim of the proposed directive is to give the victims sufficient time to start proceedings after an infringement occurred or after the victims became aware of an infringement of antitrust law. According to the proposed Directive, it is necessary to harmonise the limitation periods for actions on damages. If an infringement is caused by several undertakings which were operating jointly, it is appropriate that they are jointly and severally liable for the entire damages caused to the victims by the infringements at issue. Under the proposal the Member States are to ensure that each of these undertakings can be hold jointly and severally liable for the damages and that the victims can require full compensation of damages from any of these undertakings. For an effective enforcement of antitrust law it is also necessary that decisions of national competition authorities finding an infringement automatically constitute proof in court proceedings in all Member States.

The proposal for a directive is accompanied by a Commission Communication on quantifying damages caused by infringements of antitrust rules. This Communication and the Practical Guide which were presented together with the Directive proposal, provide a tool not only for the national courts in proceedings over actions for damages caused by infringements of antitrust rules, but also for the victims preparing this kind of actions.