Private Actions In Competition Law: Recent Developments

Private damages actions in competition law continue to mature across Europe, with the past few months seeing some significant developments at both a national and supra-national level. This note summarises the main developments in the UK and EU.

Legislation

EU legislation on private damages actions

As previously reported, the Commission last year proposed a draft Directive introducing fundamental changes to the legislative framework for antitrust damages actions in the EU. The proposal has been the subject of extensive debate among EU Member States, represented in the EU Council, which despite continued disagreement in certain areas adopted a common position on 2 December 2013.

For the first time, the European Parliament has become involved in the legislative process in the antitrust arena. Two separate committees are handling the proposal, which has resulted in conflicting positions within the Parliament. There is considerable pressure on the Parliament, from EU Member States and the Commission, to adopt a common position within the coming weeks. Failure to do so could reduce the Parliament's involvement in future antitrust legislation.

Given these dynamics, the EU institutions - the Council, the Parliament and the Commission - are likely to reach a common understanding and adopt a Directive by May 2014. The Directive will introduce rules to govern the disclosure of evidence in civil claims which will apply across the EU, something that will be new to many civil law jurisdictions. The Directive is also expected to introduce a rebuttable presumption of loss for the purposes of private damage actions i.e. that cartels result in overcharges and that an undefined proportion of the overcharges is passed on to indirect customers. Once adopted, Member States will have two years to implement the Directive by national legislation.

For further reporting on the Directive, see here.

UK Consumer Rights Bill

On 23 January 2014, the Consumer Rights Bill was published and introduced to Parliament, together with responses to suggested amendments contained in a 23 December 2013 report on the Bill by the Business, Innovation and Skills Committee ("BIS"). The Bill, which aims to facilitate private damages actions in the UK, remains broadly similar to the draft version published in June 2013.

The new rules give the specialist Competition Appeal Tribunal ("CAT") the power to hear stand-alone as well as follow-on damages actions, and the power to grant injunctions. The Bill also provides for revisions to the limitation periods for bringing damages actions in respect of infringements of competition rules and provides for the introduction of a "fast-track" procedure for SMEs.

The Bill also introduces opt-out collective actions...