Brussels, 02/12/2013 (Agence Europe) - On 2 December, the Competitiveness Council agreeed by qualified majority a general approach supporting the Presidency's compromise on the proposal for a directive aiming to facilitate citizens' actions for damages and companies' actions for damages and losses suffered due to infringements of anti-trust rules (such as cartels and abuse of dominant position). It will therefore be able to open negotiations with the European Parliament with a view to reaching an agreement at first reading on this directive - before the European elections next May.
All the ministers agreed with the objectives of this directive (to harmonise national rules so as to ensure the effective compensation of victims while avoiding a difference in treatment depending on the member state; to protect the confidentiality of information supplied by participants who have admitted to taking part in cartels so as to maintain the effectiveness of leniency arrangements - see EUROPE 10974). European Commissioner for Competition Joaquin Almunia underlined the importance and urgency of this directive as it is due to complement the public control arrangement for the enforcement of competition rules.
Objections were nevertheless raised as regards the dual legal basis - Articles 103 of the TFEU (handling of anti-trust infringements) and 114 (division of competences in the face of harmonisation measures) - proposed by the Commission, with some states (notably Hungary) contesting the power given to the Parliament on the issue (co-decision) under Article 114. The Presidency compromise accepted by the majority of states maintains these two articles as the legal base.
The other points of dispute concerned: - Article 7 of the proposal (handling of documents obtained as part of the leniency programmes). The compromise keeps the possibility for member states to choose the way in which they want to protect the documents obtained under leniency measures “in line with their national law”, leaving it up to them what means they use; Article 9 (preventing the questioning of anti-trust infringements established by the definitive decisions of a national competition authority or by an appeal body). In order to garner the widest consensus, the Presidency compromise removed from the proposal the cross-border binding effect of national decisions and only obliges member states to accept them as means of evidence, “in line with applicable national procedural rules”; Article 11(2) and (3) (striking the right balance between private and public enforcement of competition law). The compromise text limits the protection of leniency applicants against civil liability to what is necessary to neutralise the negative effect of actions for damages on leniency programmes and their public implementation. Paragraph 2 is therefore maintained in the wording already submitted to Coreper.
The Presidency nevertheless believed further revision of the text likely, depending on the arrangements that will be taken with the Parliament. (FG/transl.fl)