On 17 April 2014 a directive on private actions for damages in competition cases was adopted. This directive aims to remove a number of practical hurdles faced by victims of competition infringements when they want to obtain compensation before a national court. By providing a clearer and more uniform legal framework within the European Union, the directive should make it easier, for individuals and SMEs in particular, to effectively exercise their right to compensation. Member States have to implement the directive within two years after its entry into force. These national implementation measures do not apply, however, to damages actions which were already brought before a national court before the entry into force of the directive.
The directive aims, first of all, to make it easier for victims to demonstrate the existence of an infringement and the harm they allegedly suffered. First, national courts should be given the power to order companies to disclose evidence. However, the directive makes an important exception for leniency statements and settlement submissions before the European Commission or national competition authorities. As such, the directive aims to safeguard the effectiveness of European and national leniency programmes and settlement procedures. In addition, information that was prepared by a competition authority in the course of its investigation and sent to the parties (such as a statement of objections) or prepared by a party in the course of the investigation (such as replies to requests for information or witness statements) are disclosable in damages actions only after the competition authority has closed its proceedings. A second measure, which aims to facilitate the proof of an infringement, is the principle that a final infringement decision by a national competition authority should constitute proof that the competition infringement occurred. This principle only applies, however, to decisions of the competition authority of the Member State in which the damages claim is brought before a court. Infringement decisions rendered in another Member State do not carry the same value and only constitute prima facie evidence of an infringement. Finally, the directive also makes it easier to prove the existence of harm, by putting forward a rebuttable presumption that a cartel infringement caused harm. There is no provision for a similar presumption in the case of other competition infringements, such as the abuse of a dominant position.
As far as the responsibility for competition infringements is concerned, the directive provides for joint and several liability. This means that, in principle, each cartel participant should be bound to compensate for the harm in full. Again, the directive makes an exception for leniency applicants: in principle, they are only liable to their own (direct or indirect) purchasers or providers (except where full compensation cannot be obtained from the other infringers). In this connection, the directive also provides for an exception, under certain conditions, where the infringer is an SME.
Furthermore, the directive contains rules on limitation periods for damages actions. The limitation period for bringing an action for damages should be at least five years and must not begin to run before the infringement has ceased and the victim can reasonably be expected to be aware of the infringement, the harm caused by it and the identity of the infringer. Moreover, the limitation period should be suspended if the infringement is investigated by a competition authority. This suspension should end at the earliest one year after the infringement decision of that authority has become final.
The directive also contains rules on the passing on of overcharges. On the one hand, an infringing company does not have to (fully) compensate its direct purchaser if it proves that the latter has passed on (part of) the overcharge resulting from the infringement to its customer(s). On the other hand, the directive provides, under certain circumstances, for a rebuttable presumption that passing on has occurred when a damages action is brought by an indirect purchaser.
Finally, the directive should facilitate consensual out-of-court settlements. It provides that the limitation period for bringing a damages action should be suspended if consensual dispute resolution has been started and that, in principle, settling companies are not liable for harm caused by non-settling co-infringers.
The directive will enter into force twenty days after its publication in the Official Journal of the European Union. Given the foreseeable delays due inter alia to the necessary translations, publication of the directive is not expected until after the summer holidays.