So, Sue Me

Encouraging private enforcement of the EU antitrust rules (by encouraging those harmed by cartels and other infringements to pursue actions for damages) has been on the EU Commission's agenda for almost a decade. Throughout this period, there has been a lot of discussion and debate about how to balance: (i) the desire to protect the immunity/leniency whistle-blowing programme; and (ii) the need for disclosure of incriminating material to enable private damages actions, all within the limits of EU competence. This week, we are updating on the Commission's private enforcement proposals.

In June, a draft Directive was issued: "certain rules governing actions for damages under national law for infringements of the competition law provisions of Member States and the EU". The goals of the draft Directive are as follows:

Protect leniency procedures from disclosure to claimants in follow-on actions: proposal for EU-wide set of rules that will set minimum standards for access to evidence by potential claimants. In current form, the Directive would prevent national courts from ordering disclosure of: (i) information provided by parties under investigation to a national competition authority (NCA) or the Commission; and (ii) the Statement of Objections, whilst proceedings are ongoing, and also corporate leniency statements and settlement submissions prepared specifically for that purpose at any time (i.e. pre-existing documentation submitted in support of a leniency statement or settlement proposal would not be protected after proceedings had...