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More Antitrust Damages Claims in Europe?

On December 5, 2014, the Official Journal of the European Union published the European Commission’s new directive on antitrust damages in civil actions (the “Directive”). The Directive went into effect on December 26, 2014.

The Directive seeks to harmonize procedures across the European Union for plaintiffs seeking to bring damages actions for harms caused by antitrust violations. Most relevantly, it makes damages available in private follow-on actions for the first time in several European Union member states. This is an important change that will likely have the effect of increasing the number of follow-on damages claims in competition cases, and thus has the potential to substantially increase the potential liability for businesses found to have engaged in antitrust violations.

You can read the Directive here.   Notable provisions include:

● Both direct and indirect purchasers of goods are entitled to compensation, so long as they have been harmed by an antitrust infringement. This is a marked contrast from U.S. law, where the Illinois Brick doctrine generally limits compensation to direct purchasers.

● A final decision of a national competition authority is binding on the national courts of that member state. In other words, if a competition authority determines that an antitrust violation has occurred, private individuals may rely on that determination in a follow-on damages action as prima facie evidence that infringement occurred. This provision will likely make it easier for private claimants to succeed in follow-on damages claims.

● The Directive includes a presumption “that cartel infringements result in harm” and therefore that private damages are appropriate whenever a cartel occurred. Infringers are allowed, however, to rebut that presumption.

● The Directive provides for easier access to evidence in antitrust action, and expands the categories of documents subject to disclosure. The Directive also includes provisions designed to facilitate disclosure of evidence across the various member states.

● The Directive establishes a statute of limitations of 5 years to bring a damages claim.

● The EU has stated that it does not “conceive private damages actions as a tool for punishment and deterrence of those who breach the antitrust rules.” While private individuals are entitled to damages for harms they have suffered, the Directive seeks “to optimize the interplay” between private actions and government enforcement. The European Commission (the “Commission”) has previously expressed concern that allowing private damages actions would discourage companies from cooperating with the Commission or national competition authorities. The Directive thus includes the following protections:

○  Leniency statements and settlement submissions can never be disclosed, and cannot be used in civil damages actions.

○  When a company participates in a leniency program, the immunity recipient will generally be relieved from joint and several liability for the entire harm of the cartel, and instead will normally be responsible only for the harm caused to its own customers and providers.