European Parliament Adopts Directive To Facilitate Damages Claims For Antitrust Violations

On 17 April 2014, the European Parliament adopted a directive intended to strengthen the private enforcement of competition law by removing a number of practical and procedural obstacles to damages actions before the national courts.

On 11 June 2013, the European Commission adopted a proposal for a directive on certain rules governing actions for damages under national law for antitrust violations (click here to read the article). The directive adopted by the European Parliament last week aims to strike a balance between public and private enforcement. It needs now only to be officially approved by the Council before publication in the Official Journal of the European Union. Once the directive enters into force, the Member States will have two years to adapt their national laws accordingly.

The directive provides for (i) easier access to evidence, (ii) rules on limitations periods, (iii) the right to full compensation, (iv) a presumption that cartels cause harm, (v) clarification of the passing-on defence and its consequences for direct and indirect purchasers, (vi) clarification of the joint and several liability of infringers (vii) measures to facilitate consensual dispute resolution and settlement and finally, (viii) that decisions of the national competition authorities constitute proof of infringement.

Access to and disclosure of evidence

Disclosure by the parties to proceedings

The directive provides that the national courts should be able to order the defendant or a third party to disclose evidence further to a reasoned justification by the claimant with a plausible claim for damages. The disclosure request should concern specified items or relevant categories of evidence, described as precisely and as narrowly as possible. At the defendant's request, the national court can order the claimant to disclose evidence as well.

The national court will rule on the proportionality of the request, taking into account the plausibility of the claim, the scope and costs of disclosure, whether the information requested is confidential and, if necessary, the arrangements to protect confidentiality. The proportionality test should prevent non-specific searches for information or so-called "fishing expeditions".

In addition, the national court can impose penalties in the event of failure or refusal to comply with disclosure orders, the destruction of evidence, failure to protect the confidentiality of information and violations of the limits on the use of evidence.

Access to documents held by the competition authorities

The directive sets clear limits on the types of documents in a competition authority's file which claimants can access and divides these documents into three categories: (i) a black list (documents which may never be disclosed by the authority), (ii) a grey list (documents which may only be disclosed after the competition authority has closed its proceedings), and (iii) a white list (documents which may be disclosed at any time).

Documents which are protected from disclosure at all times (the "black list") include:

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