Towards more effective antitrust damages actions in Europe: the Commission proposal for a Directive

Abstract

The brief article deals with the proposal for a directive on actions for antitrust damages launched by the European Commission on 11 June 2013. It presents the features of the proposal, but focuses on three issues that may be isolated as the more sensitive and critical points in the debate on the private enforcement of antitrust rules: the value of NCA decisions in proceedings before National Courts, the mechanism for access to evidence and the criteria for the calculation of damages. On evidence related issues the article examines the mechanism of disclosure of information, inspired by the EC directive 2004/48 (so called “enforcement directive”) in the field of Intellectual Property Law: a mild form of discovery, less broad and less costly than the US one. On the interaction between public and private enforcement one of the key goals of the proposal the article analyses the binding effect for national courts of the final decisions of NCAs, provided that they are subject to judicial review. On quantification of harm the article looks into the issue of the access of the injured party to evidence as 1 Court of Rome 2 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, O.J. L 157, 30, o4, 2004, p.45. well as the issues of the burden of proof of the amount of damages and of the standard of evidence required to assess them. In this framework it also considers the Guidance Paper on the quantification of antitrust harm published by the Commission. The articles draws three main conclusions on the policies of the proposal: 1) the central role of public enforcement; 2) the court centered system of private litigation and 3) the residual gaps on key procedural issues. 1. FROM THE GREEN PAPER TO THE PROPOSAL FOR A DIRECTIVE ON ACTIONS FOR ANTITRUST DAMAGES On 11 June 2013 the European Commission launched a proposal for a directive on actions for antitrust damages. The general legal grounds for the proposal are, of course, articles 101 and 102 of the Treaty and Regulation 1/2003 so called Regulation on modernization of competition law that has strengthened the role of National Courts in the 3 Proposal for a directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, COM(2013)404final. A draft “ Proposal for Council Directive on rules governing actions for damages for infringements of Articles 81 and 82 of the Treaty was circulated in the antitrust community a few years ago but has never been adopted. 4 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules of competition.