The EU Directive on antitrust damage actions

Introduction

On 5 December 2014 the Directive 2014/104/UE of the European Parliament and the Concil of 26 November 2014 (hereinafter, the “Directive”) was published on the Official Journal of the European Union and it entered into force on 25 December 2014, pursuant to Article 23. As provided by Article 21, the Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 27 December 2016.

Purpose of the Directive

The entry into force of the Directive will facilitate the redress of damages caused by anti-competitive conducts, and by other forms of Competition Law’s violations, by obliging the EU Member States to amend their laws in order to reduce the obstacles hampering an effective compensation. In order to reach such goal, the Directive will incentivize the use of the follow-on damages actions in all EU jurisdictions.

Relevant provisions

The provisions of the Directive regarding the disclosure of evidence, set forth in Article 5 to 8, are of crucial interest. Such provisions, on the one hand ease the disclosure of evidence in order to allow the damaged party to have access, by means of an order issued by the national Court where the suit was filed, to the evidence in possess of the infringer, a third party or an Antitrust Authority. On the other hand, the Directive tries to strike a balance between different interests, by regulating the access to the evidence through limits and conditions (the plaintiff’s motion for access to evidence must be adequately “grounded” and such motion must be reasonable also in light of the compensation sought), as well as by prohibiting the access to specific types of documents (as set forth in Article 6, section 6), i.e. the leniency statements and the settlement submissions.

The above said Directive expressly provides the joint liability of each company which viola-ted together competition law, and each of them must compensate the damage in its entirety in favor of the damaged party, without prejudice to the right to collect from the other infringers the outstanding compensation paid by one infringer. Furthermore, the damaged party may exercise its right to be fully compensated by each infringing company until it has been entirely satisfied (see Article 11).

Already reiterated by our Courts is the provision laid down in Article 13 of the Directive with reference to the possibility for the defendant to claim that the plaintiff, entirely or partially, passed-on the price’s overcharge arising out of the anticompetitive behavior. In such circumstances, the related border of proof shall be borne by the defendant, which may reasonably ask the plaintiff or a third party to disclose the evidence.

Of utmost relevance and impact is the provision set forth in Article 17 of the Directive, which introduces a presumption of harm in case the infringement of competition law consisted in a cartel. It is a iuris tantum presumption, rebuttable by the infringer.

Conclusions

Summarizing, in light of the provisions laid down in the Directive, it is advisable for companies to enhance and foster a culture of compliance with Competition Law in order to avoid possible infringements, which may lead to antitrust litigations. Finally, thanks to the entry into force of the Directive, those companies which have been damaged by an anti-competitive conduct will be facilitated in seeking redress for anti-competitive behaviours before national Courts across the EU.