On 17 April 2014, the European Parliament voted in favor of a proposal for a Directive which aims at strengthening legal redress for victims of infringements of EU antitrust law. In particular, victims of cartels and the abuse of dominant market positions will be able to claim damages compensation more easily. National laws on the compensation of the violation of anti-trust laws diverge persistently across Europe, impeding individuals’ chances to obtain reparations. The approved proposal seeks to bridge the gap between just compensation and an effective functioning of indispensable anti-trust enforcement procedures such as leniency and settlement schemes. On the one hand, multiple measures and tools ease judiciary compensation for anti-trust violation significantly. National courts may, for example, order the disclosure of evidence vis-à-vis corporations, taking into account the principles of proportionality and confidentiality. Also, decisions of national competition authorities pronouncing an infringement of anti-trust law will exhibit automatic proof for adjudicating courts in this member state. Victims of anti-trust violations may file their claim for damages in the course of one year after the final decision of a national competition authority. On the other hand, the directive establishes a framework seeking to enhance active cooperation between competition authorities and corporations. More intense cooperation through “leniency” programs carries the potential to disclose infringements of anti-trust law that would otherwise not become pubic. The directive thereby establishes a way to enforce competition rules more actively. Safeguards on the use of disclose information provide incentives to corporations for active cooperation. For example, they are partially protected from the use of disclosed sensitive information and documents specifically prepared in the context of public enforcement proceedings as evidence. Settlements between victims and perpetrators will be embedded to the judiciary framework for redress, allowing for more economic dispute resolution. Also, the passing-on defense is recognized by the directive, entitling those who suffered economic harm to claim compensation from their contractual partner. The Directive comes into force once it has been officially adopted by the Council and published in the official bulletin. Subsequently, member states will have implement the Directive’s provisions into their legal systems in the course of two years. The full text of the Directive can be read here
Nicolai Behr is a compliance and dispute resolution attorney in Baker & McKenzie’s Munich office. He is a member of the steering committee of GlobalComplianceNews, a compliance news website with global reach moderated by Baker & McKenzie. He is a member of the committee "International" of the German Institute for Compliance. Dr. Behr is a regular speaker on compliance and white collar topics.