Liability and Procedure in European Antitrust Law The EU Damages Directive Does the European Union overstep the mark again?

Agenda Introductory Remarks Christoph Brömmelmeyer Procedural Problems of the Damages Directive Emmanuel Jeuland Discussion Public or Private Enforcement … or both … but how? Maria Serafimova

Damages Directive of Nov. 26 th, 2014

Damages Directive Art.1 [Subject matter and scope]: (1) This Directive sets out certain rules necessary to ensure that anyone who has suffered harm caused by an infringement of competition law by an undertaking or by an association of undertakings can effectively exercise the right to claim full compensation for that harm from that undertaking or association. It sets out rules fostering undistorted competition in the internal market and removing obstacles to its proper functioning, by ensuring equivalent protection throughout the Union for anyone who has suffered such harm.

History of the Damages Directive European Court of Justice (Courage vs. Crehan, 2001)

Damages Directive - History What is a cartel? Hypothetical [!] Example: Breweries in Germany (Herforder Pils) Poland (Tyskie) and France (Kronenbourg) form a cartel and agree on prices and quantities of beer to be sold on the internal market in the year 2015.

Damages Directive - History European Court of Justice (Courage vs. Crehan, 2001) [26] The full effectiveness of Article 85 and, in particular, the practical effect of the prohibition laid down in Article 85(1) would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition.

Damages Directive - History European Court of Justice (Manfredi, 2006) [92] As to the award of damages and the possibility of an award of punitive damages, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to set the criteria for determining the extent of the damages, provided that the principles of equivalence and effectiveness are observed.

Damages Directive - History European Court of Justice (Manfredi, 2006) [93] In that respect, first, in accordance with the principle of equivalence, it must be possible to award particular damages, such as exemplary or punitive damages, pursuant to actions founded on the Community competition rules, if such damages may be awarded pursuant to similar actions founded on domestic law.

Damages Directive - History European Court of Justice (Manfredi, 2006) [95] Secondly, it follows from the principle of effectiveness and the right of any individual to seek compensation for loss caused by a contract or by conduct liable to restrict or distort competition that injured persons must be able to seek compensation not only for actual loss (damnum emergens) but also for loss of profit (lucrum cessans) plus interest.”

Key Provisions of the Damages Directive

Damages Directive – Key Provisions Chapter I (Art.1-4) Art.3 [Right to full compensation]: 1. Member States shall ensure that any natural or legal person who has suffered harm caused by an infringement of competition law is able to claim and to obtain full compensation for that harm.

Damages Directive – Key Provisions Chapter II (Art.5 to 8) Disclosure of Evidence Art.5 [Disclosure of evidence] (1) Member States shall ensure that in proceedings relating to an action for damages in the Union, upon request of a claimant who has presented a reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages, national courts are able to order the defendant or a third party to disclose relevant evidence which lies in their control, subject to the conditions set out in this Chapter.

Damages Directive – Key Provisions Chapter III (Art.5 to 8) Effect of National Decisions, Limitation Periods, Joint and Several Liability Art.11 [Joint and several liability]: (1) Member States shall ensure that undertakings which have infringed competition law through joint behavior are jointly and severally liable for the harm caused by the infringement of competition law; with the effect that each of those undertakings is bound to compensate for the harm in full, and the injured party has the right to require full compensation from any of them until he has been fully compensated. (5) Member states shall ensure that an infringer may recover a contribution from any other infringer ….

Damages Directive – Key Provisions Chapter IV (Art.12 to 16) Passing-on of Overcharges Art.13 Passing-on defence: (1) Member States shall ensure that the defendant in an action for damages can invoke as a defence against a claim for damages the fact that the claimant passed on the whole or part of the overcharge resulting from the infringement of competition law. The burden of proving that the overcharge was passed on shall be on the defendant, ….

Damages Directive – Key Provisions Chapter V (Art.12 to 16) Quantification of Harm Art.17 Quantification of harm: Member States shall ensure that neither the burden nor the standard of proof required for the quantification of harm renders the exercise of the right to damages practically impossible or excessively difficult.

Legal Basis, Subsidiarity and Proportionality

Damages Directive – Legal Basis Recitals (8) As the differences in the liability regimes applicable in the Member States may negatively affect both competition and the proper functioning of the internal market, it is appropriate to base the Directive on the dual legal bases of Art.103 and 114 TFEU.

Damages Directive Subsidiarity ? Proportionality ?

Thank you very much so far!