Antitrust Law Daily Wrap Up, ANTITRUST NEWS: EC Competition Commissioner calls for adoption of private damages action proposal, (Nov 7, 2013)

By Jeffrey May, J.D.

Speaking at the College of Europe’s Global Competition Law Centre today, Joaquin Almunia, Vice President of the European Commission responsible for Competition Policy, expressed concern that the debate in the European Parliament regarding a legislative proposal on private antitrust damages actions “seems to be stalled in procedural disputes which may artificially delay adoption beyond the term of this Parliament.” In remarks, entitled “Antitrust damages in EU law and policy,” Almunia said a delay would be “unfortunate.”

A proposal for a Directive on antitrust damages actions was announced in June. The proposal establishes common EU-wide limits on the disclosure of evidence held in competition authority files to avoid jeopardizing the public enforcement of the competition rules. It prohibits the disclosure of leniency corporate statements and settlement submissions. Other documents prepared by parties for public enforcement proceedings or prepared by a competition authority in the course of its proceedings could be temporarily protected during the pendency of the competition authority proceedings.

In his speech today, Almunia gave two reasons for the proposal: (1) to ensure that all European citizens and businesses have effective access to compensation for competition law violations, and (2) to preserve the overall effectiveness of the EU-wide system of public authorities that enforce competition law.

Currently, the landscape for private damages actions for violations of European competition law is “ineffective and uneven,” according to Almunia. It is ineffective, because many victims of antitrust infringements cannot obtain the compensation they are entitled to in principle. An important reason is the inability of victims to obtain essential evidence.

The “hugely divergent” national rules make private enforcement uneven, Almunia added. The damages actions have been “mainly concentrated in three Member States - the UK, Germany and the Netherlands - and nearly all of them have been brought by large companies,” it was noted.

“Everyone living in the EU and every company operating in the EU should have the same rights and obligations when it comes to compliance with EU competition law - not only on paper, but also in practice,” Almunia said.

Almunia stressed that the proposal “strikes the right balance between making the right to compensation real and preserving the exclusive powers of competition authorities to punish and deter anti-competitive practices.”

The official noted that the proposal preserves the attractiveness of antitrust leniency programs and settlement procedures. It provides legal certainty for leniency applicants and sets precise limits to the liability of the companies that receive immunity, he added.

“Public enforcement will remain key,” Almunia said, even with passage of legislation on private damages actions. But, the measure will provide citizens and businesses with “a law to translate their individual rights into reality.”

News: Antitrust