Antitrust Damage

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Antitrust Damage

Directive 11 June 2013

Key Issues

Key issues of antitrust damage include:

  • From whom to claim damages. Where several undertakings infringe the competition rules jointly — typically in the case of a cartel — it is appropriate that they be jointly and severally liable for the entire harm caused by the infringement[Proposal for a Directive 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/2013/0404 final – 2013/0185 (COD)].
  • Quantification of harm. Member States shall ensure that, in the case of a cartel infringement, it shall be presumed that the infringement caused harm. The infringing undertaking shall have the right to rebut this presumption[Proposal for a Directive 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/2013/0404 final – 2013/0185 (COD)].
  • Causality. Requirements such as causality or proximity that link the illegal act and the harm. The Court of Justice has clarified in this respect that in so far as there are no rules at EU level on this matter, it is for national law to prescribe the rules on the application of the concept of ‘causal relationship’, provided that the principles of equivalence and effectiveness are observed[Joined cases C-295/04 to C-298/04 Manfredi [2006] ECR I-6619, 61, 64; case C-453/99 Courage [2001] ECR I- 6297, 29].
  • Back to passing-on defences. Indirect purchasers may be faced with the legal impossibility of claiming compensation, because of national rules on causality (including rules on foreseeability and remoteness)[Proposal for a Directive 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/2013/0404 final – 2013/0185 (COD)]. [1]
  • Right to full compensation for antitrust damage

In this last case, right to full compensation for antitrust damage, this includes:

  • Anyone who has suffered harm caused by an infringement of Union or national competition law shall be able to claim full compensation for that harm.
  • Full compensation shall place anyone who has suffered harm in the position in which that person would have been had the infringement not been committed. It shall therefore include compensation for actual loss and for loss of profit, and payment of interest from the time the harm occurred until the compensation in respect of that harm has actually been paid[Proposal for a Directive 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/2013/0404 final – 2013/0185 (COD)].

Notes

1. Where injured parties from different levels of the supply chain bring separate actions for damages that are related to the same competition law infringement, national courts should take due account, as far as allowed under applicable national/EU law, of parallel/preceding actions/judgments resulting from such actions in order to avoid under-/overcompensation of the harm caused by that infringement and to foster consistency between judgments resulting from such linked proceedings[Proposal for a Directive 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/2013/0404 final – 2013/0185 (COD)].

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