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Draft directive for damage actions and compensation claim

On June 11, 2013 the European Commission („Commission“) published a draft directive regarding compensation claims for victims of antitrust infringements.

Currently the diversity of respective provisions in the various Member States make claims of victims for damages and compensation on the basis of antitrust violations more difficult. Such victims are mainly consumers and small enterprises. In the past seven years damages were claimed in only about 25% of antitrust violations that had been sanctioned by competition authorities in Europe.

The proposed directive suggests the following provisions:

  • Binding effect of decisions of national competition authorities as proof for the existence of an               antitrust infringement
  • Presumption of damages
  • In case of lack of concrete amount of damages respective determination by judge (separate                 guidelines of the commission)
  • In addition to damages, compensation for loss of profits plus interest rate
  • Possible objection to overcharges („Passing-on-Defence“)
  • Burden of proof for third parties for overcharges
  • Joint and severe liability of undertakings (exception: first leniency applicant)
  • statute of limitation of 5 years starting as of infringement decision of a competition authority
  • request and order of evidence by national courts

However, to ensure public enforcement, which relies on leniency programs, potential leniency applicants shall not be deterred by private enforcement. Therefore documents such as corporate statements of leniency applicants should have absolute protection of access to the file of competition authorities by third parties. Access to other documents of a competition authorities’ file, that were handed to or created by the investigating competition authority during the investigation, may be granted only after the final conclusion of the proceedings.

After the final adoption of this directive by the European Parliament and Council and its release, Member States will have two years to adapt their national legislations accordingly.

Authors:

Dr. Christina Hummer
Ori Kahn