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EU makes significant progress on competition damages law - Update

    • Competition, EU and Trade


    On 2 December 2013, after months of wrangling between Member States, the Council met in Brussels and are understood to have agreed a ‘general approach’ and compromise wording in respect of some of the more contested aspects of the draft Directive on competition claims.

    The draft Directive is now with the European Parliament, to whom a draft opinion was submitted this week.

    The draft Directive was originally proposed by the European Commission in June 2013, with the aim of facilitating claims for compensation by victims of competition law infringements and removing the obstacles to such claims faced by claimants in some Member States. For further information on the original proposals, read our briefing here.

    There was significant disagreement amongst Member States on some key areas of the draft Directive, including the value of one national competition authority’s decisions before another Member State’s court, the extent to which immunity applicants should be protected from follow on damages claims and the use of evidence obtained through access to a competition authority’s file.

    The key issues covered by the compromise wording are:

    • Reliance on infringement decisions: Whereas the original draft Directive provided that decisions of national competition authorities would automatically constitute proof of the infringement before the national courts of all Member States, the compromise wording now provides that decisions of national competition authorities have evidential value only that an infringement of competition law has occurred.
    • Limit on liability of immunity recipients: The original draft Directive proposed that participants in a cartel would be ‘jointly and severally’ liable for any harm caused by the cartel, but that in contribution proceeding by another cartel participant an immunity recipient would be liable only for the harm it caused to its own direct or indirect purchasers or providers. The compromise wording removes this ceiling on the liability of immunity recipients in contribution proceedings and thereby limits their protection against damages claims.
    • Use of evidence obtained through access to a competition authority’s file: The compromise wording maintains the protection offered to documents obtained through access to the file of a competition authority, which covers: (a) leniency statements, (b) settlement submissions and (c) other categories of evidence prior to a competition authority closing its proceedings. In addition, it provides that a Member State may classify such documents as inadmissible or otherwise grant protection under applicable national rules, giving Member States greater discretion as to how they protect such documents.
    • Limitation period: The compromise wording reduces the minimum limitation period for bringing an action for damages from five years to three years. It is up to the Member States to determine the applicable limitation period, albeit under the compromise wording it cannot be less than 3 years.

    The draft opinion submitted to the European Parliament this week states that plaintiffs suing cartel members for damages should have access to information on the impact of price-fixing, contained in regulators’ files. The opinion also suggests making collective redress procedures available for private damages claims. The opinion is due to be considered next week by the Committee on Legal Affairs (JURI).

    The compromise wording is due to be discussed at the JURI meeting on 21 January 2014. Under the current legislative timetable, the European Parliament will vote on the draft Directive on 11 March 2014.


    The compromise wording represents a significant step forward for what is proving to be a highly contentious draft Directive. It has received the agreement of many Member States that voiced strong opposition to the original wording of the draft Directive.

    However, there remains considerable opposition to certain aspects of the draft Directive, such as the liability of an immunity applicant and limitations on the use of evidence obtained as a result of access to a competition authority’s file in subsequent litigation. The European Parliament could yet propose further amendments, which could delay or prevent the Directive being finalised.

    Once the draft Directive is adopted, it will need to be implemented by Member States.

    In the UK, the competition damages regime is already one of the most advanced in the EU and is undergoing further reforms aimed at facilitating competition damages claims. Nonetheless, the Directive, if implemented, could still result in some important changes to the UK regime.

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