European Commission publishes proposal on damage claims by victims of antitrust violations

The European Commission published on 11 June 2013 a directive proposal for damage claims by victims of antitrust violations, bringing an outcome to the public consultation organized by the competition directorate general services in early 2012, after the initial publication of an external study on damages awarded by the EU courts for antitrust violations.

Unlike regulations, directives do not have a direct effect in EU law. This directive would organize a minimum harmonization between member states, leaving them free to implement stricter rules as long as those would not curtail the effectiveness of the core provisions of the directive.

Disclosure of evidence is addressed by the draft directive in articles 5 to 8 that balance the right to gain access to documentary evidence with trade secrets protection and leniency-related documents. On the other hand, member states will have to ensure that courts sanction the destruction of relevant evidence.

Article 12 provides that a passing-on defense should be implemented in national laws. The procedure for antitrust damage claims remains inquisitorial, as the defendant will have the reverse the burden of the proof. Accordingly, pursuant to article 16, any infringement of antitrust legislation will be presumed to have caused harm. The defendant could rebut such a presumption, but we may believe that such an exercise would be extremely difficult, as there will be little room for demonstrating lack of damages when the rationale of the whole directive is precisely based on that presumption.

We regret that the draft directive does not address the interaction with class actions procedures, although such procedure would likely be adopted soon at the EU level. If competitors may not have suffered harm – especially when cartels involve most of the existing undertakings – consumers’ organizations may almost systematically support such claims. We expect the directive to better take into account this the interface between competition policy and consumer protection.

Along with the directive proposal, the Commission released a communication, a staff working document (a practical guide for quantifying harm in action for antitrust damages) and an impact assessment study on damage claims. These documents anticipate the harmonization to be effective within the next three years. In the meantime, national courts could use them as guidelines when dealing with antitrust violations claims.

The draft directive will now follow the ordinary legislative procedure under which the European Parliament and the Council must now decide on the Commission’s proposal. On June 18, 2013, the Economic and Monetary Affairs committee, responsible for this procedure at the European Parliament, appointed MEP Andreas Schwab as rapporteur. Two other committees have decided to give an opinion (Internal Market and Consumer Protection, Legal Affairs) while the Industry, Research and Energy committee has decided not to give one. The vote in committee is scheduled on December 5, 2013 and the plenary sitting would normally take place on March 11, 2014. [Anthony Bochon]