A long-awaited European directive on rules governing anti-trust damages claims moved a step closer this week, after the three main EU institutions reached agreement on its content.
The directive was proposed by the European Commission last June after a number of failed attempts in the previous decade.
The commission, which estimates that cartels in the EU cost consumers between €25 and €69bn, wants to facilitate the private enforcement of competition law and make it easier for victims of infringements to bring claims.
In a briefing, Berwin Leighton Paisner reports that the two major points of contention during months of talks were the access of claimants to evidence and the recognition of cartel decisions of authorities in one EU member state by judges in other states.
It is now understood that claimants will not be able to access statements made by companies to the commission in return for leniency or settlement submissions made under the EU’s cartel settlements notice. As a compromise, it has been agreed that judges will be able to review the documents to ensure that they have correctly been identified as exempt from disclosure.
It has also been agreed that national cartel decisions can be used as evidence in other EU member states but they will not automatically bind judges. This falls short of the Commission’s original proposal.
The directive also addresses issues such as the limitation period for bringing an action, whether damages can be claimed if they have been passed on to customers of the claimant (the so-called ’’passing on’ defence) and the quantification of harm.
Responding to a consultation on the directive last year, the Council of Bars and Law Societies of Europe welcomed the initiative. But it stressed that it would favour a ‘cautious’ approach which builds on existing national systems by adapting them without introducing a European code of procedure for damages actions in competition cases.
Following the political agreement by the commission, European parliament and Council of Ministers, the directive must now be formally adopted by the parliament and council. This is expected to happen before the European elections in May.
Berwin Leighton Paisner says: ‘Although the completion of these formalities is by no means a certainty and there may yet be further twists and turns ahead, the political agreement marks a major step forward in the process and indicates that the Damages Directive may finally become a reality before long.
‘Once adopted, member states will have two years to transpose the directive into national law, although there will likely be some immediate impact even on claims that proceed in the interim.’