European Parliament adopts legislation facilitating antitrust damages actions

by Orrick, Herrington & Sutcliffe LLP

Today, the European Parliament approved legislation governing antitrust damages actions brought in the national courts of EU Member States. The Parliament’s approval was the last significant hurdle and follows several years of debate. The Directive requires the approval of the European Council, which will be a formality as COREPER (which is composed of the Member States’ ambassadors to the EU) has already approved the Directive.

The text of the Directive is available here.

The Directive aims to make it easier for companies and consumers to bring damages actions against companies involved in EU antitrust infringements. The Directive provides that anyone who has suffered harm, caused by an antitrust infringement, can claim compensation for actual loss, for loss of profit and for interest. Compensation should not, however, lead to punitive or multiple damages.

In a major development, claimants in civil law jurisdictions are afforded expanded access to disclosure. The Directive introduces the right to obtain disclosure of evidence from defendants and antitrust authorities, without having to specify each individual document. This is subject to the claimant being able to show, based on facts and evidence reasonably available, that the claim for damages is at least plausible. This threshold aims at preventing fishing expeditions. Documents prepared by an antitrust authority in the course of an investigation and which have been sent to the investigated party - such as a Statement of Objection - are subject to disclosure, after the authority has closed its investigation. Leniency statements and settlement submissions are protected from disclosure.

The Directive also introduces:

  • Pass-on defence: The right of infringers to invoke passing-on of actual loss as a defence against a claim for damages. The burden to prove the existence and extent of pass-on lies with the infringer.
  • Joint and several liability: The right to require full compensation from any of the infringing parties for all damage caused by the cartel (or other infringements).
  • Indirect purchasers: The right of indirect purchasers to sue for damages, coupled with a discretion granted national courts to estimate the share of an overcharge suffered by the indirect purchasers.
  • Presumptions of harm: A presumption of harm, in particular though price increase, resulting from cartels, but without any presumption as to the amount of the loss caused and with a right of the infringer to rebut the presumption.
  • Contribution claims: The right of an infringer to bring contribution claims against joint infringers.
  • National decisions: Antitrust infringement decisions, issued by national competition authorities, will be binding on national courts in the same Member State as the relevant competition authority; and will constitute prima facie evidence of antitrust infringement in damages actions brought before courts in other Member States. Decisions of the EU Comission are already binding on national courts in the EU.
  • Limitation period: Limitation period for bringing a claim shall be at least five years from the date the infringement ceased and the claimant can be expected to know: that the relevant conduct constitutes an antitrust infringement; that the infringement caused harm; and the identity of the infringing company.

Next, the Directive will be presented to the European Council for approval and final adoption. This will take a few weeks. Once it has entered into force, Member States have two years to implement the Directive into national legislation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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