Brussels, 03/04/2008 (Agence Europe) - On Wednesday 2 April 2008, the European Commission adopted a White Paper on damages actions for breach of the EC antitrust rules, which suggests action in several domains, like disclosure of evidence and damages and interest.
The Commission points out that any citizen or business suffering harm as a result of a breach of EC antitrust rules (Articles 81 and 82 of the EC Treaty) must be able to claim compensation from the party which caused the damage. This right of victims to compensation is guaranteed by EU law, as the European Court of Justice recalled in 2001 and 2006. Despite this requirement, in practice victims of EC antitrust infringements to date only rarely obtain compensation for the harm suffered. The amount of compensation these victims are foregoing is in the range of several billion euros a year.
In its White Paper, the European Commission sets out detailed proposals to address the obstacles to effective antitrust damages action.
Redress. The European Commission suggests a combination of two complementary mechanisms of collective redress - representative actions which are brought by qualified entities, such as consumer associations, state bodies or trade associations, on behalf of identified or, in rather restrictive cases, identifiable victims. These entities are either officially designated in advance or certified on an ad hoc basis by a member state for a particular antirust infringement in order to bring action on behalf of some or all of their members; and - opt-in collective actions, in which victims expressly decide to combine their individual claims for harm they suffered into one single action.
Access to evidence. The Commission suggests that across the EU, a minimum level of disclosure inter partes for EC antitrust damages should be ensured. Building on the approach in the Intellectual Property Directive (2004/48/EC), access to evidence should be based on fact-pleading and strict judicial control of the plausibility of the claim and the proportionality of the disclosure request. The Commission therefore suggests that: 1) national courts should, under specific conditions, have the power to order parties to proceedings or third parties to disclose precise categories of relevant evidence; 2) conditions for a disclosure order should include that the claimant has presented all the facts and means of evidence that are reasonably available to him/her; 3) adequate protection should be given to corporate statements by leniency applicants and to the investigations of competition authorities; and 4) to prevent destruction of relevant evidence, courts should have the power to impose sufficiently deterrent sanctions.
Decisions by national competition authorities (NCAs). The Commission suggests the following rule: 'national courts that have to rule in actions for damages under Article 81 or 82
on which an NCA in the European Competition Network has already given a final decision finding
an infringement of those articles (… ) cannot take decisions running counter to any such decision
or ruling.'
Fault requirement. If a breach of Article 81 or 82 has been proven, member states take diverse approaches concerning the requirement of the existence of a fault to obtain damages. The Commission therefore suggests a measure to make it clear for member states that require a fault to be proved that once the victim has shown a breach of Article 81 or 82, infringers should be liable for damages caused unless they demonstrate that the infringement was the result of a genuinely excusable error; an error would be excusable if a reasonable person applying a high standard of care could not have been aware that the conduct restricted competition.
Damages and interest. For reasons of legal certainty and to raise awareness amongst potential infringers and victims, the Commission suggests codifying in an EU legislative instrument the current Community acquis on the scope of damages that victims of antitrust infringements can recover. Once the scope of damages is clear, the quantum of these damages must be calculated.
Passing-on overcharges. The Commission suggests that defendants should be entitled to invoke the passing-on defence against a claim for compensation of the overcharge.
Limitation periods. The Commission suggests that the limitation period should not start to run: in the case of a continuous or repeated infringement, before the day on which the infringement ceases; or before the victim of the infringement can reasonably be expected to have knowledge of the infringement and of the harm it caused him. The Commission also proposes that a new limitation period of at least two years should start once the infringement decision on which a follow-on claimant relies has become final.
Costs of damages actions. The Commission encourages member states to 1) design procedural rules fostering settlements, as a way to reduce costs; 2) to set court fees in an appropriate manner so that they do not become a disproportionate disincentive to antitrust damages claims; and 3) to give national courts the possibility of issuing cost orders derogating, in certain justified cases, from the normal cost rules, preferably upfront in the proceedings. Such cost orders would guarantee that the claimant, even if unsuccessful, would not have to bear all costs incurred by the other party.
Interaction between leniency programmes and actions for damages. The Commission suggests limiting the civil liability of the immunity recipient to claims by his/her direct and indirect contractual partners. It suggests earlier examination of the option of restricting the civil liability of the immunity recipient to requests for compensation from their direct and indirect contractual partners.
The Commission has asked for observations on the new White Paper to be sent by 15 July 2008 by email to comp-damages-actions@ec.europa.eu (L.C.)