New private enforcement directive of Commission expected in June

The European Commission (‘Commission’) plans to propose a new directive on the interaction of public antitrust enforcement and damage claims in June this year. 

Private enforcement of the EU antitrust rules has already been legally possible for decades. It is however in Europe not easy to succeed in such a case. Damage claims in the EU are brought before national courts with limited experience in dealing with complex antitrust matters. In addition the procedure that needs to be followed is different in almost every Member State of the EU. It is also difficult to get access to evidence collected in cartel cases. In 2011 the European Court of Justice however judged that national courts can allow claimants in damage actions access to documents submitted to national competition authorities by cartel leniency applicants (Case – 360/09, Pfleiderer). After this judgement defendants of course fear that claimants would also get access to documents provided to the Commission by leniency applicants.

Competition Commissioner Almunia already announced his intention to regulate the grey area between public agencies and claimants pursuing private claims last year. The Commission on the one hand encourages the start of private enforcement actions. On the other hand it wants to protect it’s successful leniency program. The new directive needs to bring national procedural rules into line and cover aspects such as access to evidence, the protection of leniency applicants, the legal force of national authority decisions, and potentially how claimants can group together to bring law suits.

The Commission has now published a roadmap which outlines the main areas of the initiative for a new private enforcement directive. The initiative will include the following four main areas:

• Access to evidence and protection of leniency programs in the context of antitrust damages actions brought to national courts;
• The binding effect of decisions of national competition authorities as proof for an antitrust infringement in civil proceedings;
• Rules on whether or not a defendant can invoke that the claimant passed the damage on to his own customers. This is also known as the passing-on defence; and
• Rules on standing, in particular as regards indirect purchasers and the potential aggregation of individual claims. So called collective redress.

The initiative is expected to set minimum standards aimed at ensuring full and effective compensation. Member States are free to set higher standards. The Commission has however made clear that the directive needs to strike a balance between claimants’ rights to compensation on the one hand and the protection of leniency applicants on the other hand.

The new plans of the Commission reaffirm its commitment to set a minimum set of common rules for competition damages claims. Companies involved or to be involved in damages claims therefore would be wise to consider these pending developments and think about litigation strategies accordingly.