The
The EC’s emphasis is on creating a system that removes the obstacles to private actions without encouraging unmeritorious litigation. The European Competition Commissioner, Neelie Kroes, has stated publicly that she wishes to avoid “the potential excesses of the
The key proposals
Single damages: at an earlier stage, the EC flirted with the idea of double damages, but has ultimately come out in favour of single damages, i.e. damages designed to compensate for loss suffered, nothing more and nothing less. The EC recognises that the compensation principle requires interest to be awarded.
Collective redress: one of the EC’s key aims is to make it feasible for claims to be brought on behalf of large groups of consumers or businesses, recognising that victims are unlikely to bring individual claims in cases where the loss suffered is small and/or spread among numerous individual consumers or small businesses. Accordingly, the EC recommends a dual package for reform encompassing (i) opt-in collective actions with victims expressly agreeing to combine their individual claims into a single action and (ii) representative claims by qualified interested bodies on behalf of identified (or identifiable) parties.
Access to evidence: the EC proposes a minimum level of disclosure between parties to damages actions, to enable victims to have access to evidence which is indispensable to their case. This should take place under strict judicial control as to the necessity, scope and proportionality of the disclosure request. These recommendations will have little impact in the
Binding decisions of national competition authorities (NCAs): the White Paper proposes that victims should be able to rely on the final decision of any NCA before the courts of any member state. There are concerns about this proposal given that the quality of decision-making is not uniform across all member states.
Protection of leniency applications: the EC is concerned not to undermine leniency programmes which have been very effective in uncovering secret cartels. The White Paper therefore includes proposals designed to protect confessions by leniency applicants from disclosure in damages actions. The EC also floats the idea of the possible limitation of the civil liability of successful immunity applicants to their direct and indirect contractual partners (ie not to those who bought the product or service from another cartel member).
Who can sue/passing on: the EC has come down in favour of allowing both direct and indirect purchasers of goods and services to sue. The White Paper suggests that indirect purchasers may rely on a rebuttable presumption that an overcharge has been passed on to them in its entirety, given the difficulty they face in proving causation. On the other hand, the EC recognises that if both direct and indirect purchasers are able to claim for the same loss, the infringer might be required to pay multiple compensation. The White Paper, therefore, provides for passing-on to be used as a shield against an action brought by a purchaser other than the final consumer, allowing a defendant (seller) to raise the passing-on of an overcharge as a defence.
The EC has clearly had to steer a relatively conservative course, its aim being to provide a minimum level of protection for victims of antitrust infringements across 27 different legal systems. There is, however, nothing to stop individual member states from forging ahead with more ambitious reforms — and it is clear that
For example, on the complex matter of costs, the OFT has already invited the UK Government to consult on the possibility of allowing a percentage increase of more than 100% in conditional fee arrangements for antitrust cases. It has also called for measures allowing courts the discretion to cap a party’s liability for costs, even at zero in appropriate representative cases. Both measures would be likely to add extra incentives for damages actions in the
Neelie Kroes is keen for action to be taken sooner, rather than later. However, here in the
