Disclosure rules of the Antitrust Damages Directive: finding the balance between public and private enforcement (original) (raw)
Related papers
The present paper will examine whether the blanket prohibition of disclosure of corporate statements contained in Article 6(1) of the draft proposal 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 is necessary to safeguard the attractiveness of the Commission's leniency programme or whether it represents an insurmountable burden for claimants that will in the long run severely hamper the private enforcement of EU Competition law (a most unfortunate outcome considering the main objective of the proposed Directive is precisely the opposite). On the one hand, excessive protection of leniency applicants' clemency submissions may lead to useless litigation and ultimately render the private enforcement of competition law in the EU pointless, as claimants are denied (purportedly) essential evidence for building stout damages cases. On the other hand, a more permissive approach towards the disclosure of such information may cripple the public enforcement of Competition law by discouraging cartelists to come forward in the first place. Given the fact that follow-on claims constitute a lion's share of current actions for antitrust damages brought in the EU, such a result would almost certainly have catastrophic consequences for individuals' right to compensation for the harm caused by infringements of Article 101 of the Treaty on the Functioning of the European Union as recognised by the European Court of Justice in the Courage and Crehan and Manfredi and others judgments. We conclude that the Commission seems to be privileging immunity recipients at the cost of injured parties by imposing remedies that are too far reaching for the protection of the effectiveness of the leniency programmes, especially taking into consideration the lack of conclusive evidence proving that disclosure of corporate statements would discourage potential leniency applicants from collaborating with the competition authorities in the first place. In light of this, we contend that a case-by-case approach such as the one envisaged by the European Court of Justice in Pfleiderer is more adequate to strike the balance between the injured parties’ right to redress and the effectiveness of the leniency programmes – at least for the time being.
2013
The disclosure of leniency materials held by competition authorities has recently been under the spot. On the one hand, these documents could greatly help cartel victims to prove the damage and the causation link when filing damage actions against cartelists. On the other hand, future cartelists could be deterred from applying for leniency since damage actions could be brought as a result of the information submitted by themselves. Neither the current legislation nor the case law have attained yet to sufficiently clarify how to deal with this clash of interests. Our approach obviously attempts to strike a balance between both interests. But not only that. We see the current debate as a great opportunity to boost the private enforcement of antitrust law through the positive spillovers of leniency programmes. We hence propose to build a bridge between the public and the private enforcement by enabling a partial disclosure of the documents. * The author works as a junior associate in the Antitrust Department of Clifford Chance Madrid. He holds both a master degree in law and business management by the University of Valladolid, a MA in European Interdisciplinary Studies by the College of Europe and a LL.M in Competition and IP law by the University of Liège.
The Disclosure of Evidence under the 'Antitrust Damages' Directive 2014/104/EU
2017
The aim of this contribution is to reflect on the principles underpinning the disclosure of evidence under Directive 2014/104/EU, namely the principles of proportionality, effectiveness, equivalence and consistency. It also aims to review the legislative techniques that the Directive has used in order to codify the previous case law of the European Union (EU) courts and to discuss several recent rulings, including Carglass, Pilkington, Evonik Degussa and others. Finally, the author draws conclusions on the adequacy of the achieved codification of the previous case law on the disclosure of evidence and access to such evidence, as well as on its potential implications for the Member States.
It is in general agreement that quite a number of competition law enforcement systems worldwide are based on two enforcement pillars namely public enforcement and private enforcement. While private enforcement is often treated as something new or at least marginally important in Europe, it has been the driving force of the United States antitrust enforcement since the middle of the 20th century. Free and undistorted competition is a core feature of the internal market and European Union more broadly, secured, inter alia, by the competition rules under articles 101 and 102 of the Treaty of Functioning of the European Union (TFEU), which regulate the exercise of private market power. It therefore is in no doubt that while strengthening the enforcement of private rights is plausible, on the other hand it inevitably raises the question of how public and private enforcement can ideally be aggregated to achieve a welfare optimal outcome. Why not just have one system of enforcement? A question that will hopefully be answered at the end of this paper.
Package on Actions for Damages Based on Breaches of EU Competition Rules: Can One Size Fit All
2014
On 17 April 2014, the Proposal for a Directive on antitrust damages actions was accepted by the European Parliament and sent to the EU Council of Ministers for final approval. In addition, a Recommendation was adopted in 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States to meet the need for a coherent European approach to antitrust private enforcement. This package comes at a time when private antitrust enforcement is rapidly evolving in a number of Member States. At the same time however, it establishes several legal solutions that do not fit well with existing national instruments. The aim of this article is to address, in particular, Portuguese and Polish experiences on a number of specific issues surrounding antitrust private enforcement, such as collective redress and contingency fees. Some doubts will also be raised concerning the solutions established in the European package, suggesting that national experiences should not be overlooked.
LSN: Enforcement (Topic), 2016
In the vast majority of European countries, private antitrust enforcement falls under general rules of civil law. One of the issues to be discussed in relation to this type of litigation is the principle of liability, which exists in the given legal system, and its presumed impact on private enforcement. This problem has been debated in the course of the implementation works on the Damages Directive into the Polish legal system. A discussion on the principle of liability has taken place at least twice in this context. First, the issue was considered by the Civil Law Codification Commission and expressed in its Assumptions behind the Draft Act on complaints for damages caused by the breach of competition law. Subsequently, the principle of liability was assessed again at the reconciliation conference held at the Ministry of Justice. This is but a part of a broader discussion about the relationship between the rule of liability existing in national laws being applied to private enforc...
Private Damages in EU Competition Law and Arbitration: A Changing Landscape
There are various obstacles within the EU Member States, which currently prevent, to a greater or lesser extent, the possibility to successfully obtain damages for harm caused by an infringement of the EU competition rules. On 26 November 2014, an EU Directive on antitrust damages actions was adopted. This sets out some minimum ground rules in order to level the playing field across the Member States with a view to making it easier to actually pursue such actions and claims successfully. On a broader level, the Directive has incorporated specific provisions to promote the effective use of consensual dispute resolution as an alternative route to enabling the victims of EU competition law infringements to obtain compensation. This paper discusses the provisions of the Directive, in terms of its potential impact on the use of arbitration to obtain private damages within the EU. It outlines and analyses the existing legislative framework in relation to the public and private enforcement of EU competition law within the EU, the possibility to arbitrate EU competition law infringements and arbitration of EU competition law in practice. It then outlines and discusses both the provisions of the Directive in relation to consensual dispute resolution and some of its most relevant and noteworthy other provisions, in particular with regard to their potential impact on the arbitration of cases involving EU competition law infringements. Finally, the paper concludes on the potential for arbitration in this area in the future and whether the Directive is likely to have much of an impact in this regard. Directive 2014/104/EU on antitrust damages actions (2014)Council Regulation (EC) 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (2004)Case 102/81 Nordsee v Reederei Mond, European Court of Justice (1982)Case C-88/91 Federconsorzi, European Court of Justice (1992)Cases C-430/93 and C-431/93 Van Schijndel and van Veen v Stichting Pensioenfonds voor Fysiotherapeuten, European Court of Justice (1995)Case C-126/97 Eco Swiss China Time Ltd v Benetton International NV, European Court of Justice (1999)Mitsubishi Motors Corporation v Soler Chrysler Plymouth Inc, US Supreme Court (1985) © The Author 2015. Published by Oxford University Press on behalf of the London Court of International Arbitration. All rights reserved. For Permissions, please email: journals.permissions@oup.com
Social Science Research Network, 2017
The paper will focus on requirements and thresholds set for the judiciary by the Damages Directive. Answered will also be questions on the specialization of courts and its application in Central and Eastern European (CEE) Member States of the EU, as well as on the involvement of national competition authorities (NCAs) in court proceedings. The paper provides also general thoughts regarding the specialization of courts and confronts them with the judiciary structure in CEE Member States in the context of private enforcement of competition law. While there is no uniform model of a judicial system, the paper provides a critical analysis of the centralization, specialization and decentralization of private enforcement models, taking into account also the importance of the training of judges. The YEARBOOK of ANTITRUST and REGULATORY STUDIES www.yars.wz.uw.edu.pl Centre for Antitrust and Regulatory Studies, University of Warsaw, Faculty of Management www.cars.wz.uw.edu.pl Peer-reviewed scientific periodical, focusing on legal and economic issues of antitrust and regulation. Creative Commons Attribution-No Derivative Works 3.0 Poland License. YEARBOOK OF ANTITRUST AND REGULATORY STUDIES 32 ONDREJ BLAŽO relationship between NCAs and courts will be discussed whereby the role of NCAs in private enforcement defines the responsibility of the given public authority in private enforcement as a country's policymaker. Résumé L'article se concentre sur les exigences et les seuils fixés par la Directive Dommages pour le pouvoir judiciaire. Les réponses vont se focaliser également sur la spécialisation des tribunaux et son application dans les États membres d'Europe centrale et orientale (PECO) de l'UE, ainsi que sur la participation des autorités nationales de concurrence (ANC) aux procédures judiciaires. L'article fournit également des réflexions générales sur la spécialisation des tribunaux et les confronte à la structure judiciaire des États membres de l'Europe centrale et orientale dans le cadre de l'application privée du droit de la concurrence. Bien qu'il n'existe pas de modèle uniforme de système judiciaire, l'article fournit une analyse critique de la centralisation, de la spécialisation et de la décentralisation des modèles d'application privée du droit de la concurrence, en tenant également compte de l'importance de la formation des juges. La relation entre les ANC et les tribunaux sera examinée dans le contexte ou le rôle des ANC dans l'application privée du droit de la concurrence définit la responsabilité d'autorité publique comme un décideur politique national.
The implementation of the Antitrust Damages Directive in Belgium
The implementation of the Directive significantly facilitates access to documents in particular where documents in the file of the competition authority. Before the implementation of the damages directive all access to such documents was excluded. It was even considered an infringement of professional secrecy, a criminal offence, for members of the competition authority and its staff to provide such access. Since the implementation of the Directive only leniency statements and settlement submissions in the competition authority’s file enjoy absolute protection. Access to other documents in the competition authority’s file can be permitted after the authority has closed its proceedings. Also the presumption that cartels cause damage will facilitate the position of claimants. Once it is proven that an infringement of the law caused damage, the court is permitted to assess the amount of the damage according to reasonableness and fairness, ex aequo et bono. In the well-known Otis case, the European Commission’s claim for damages against cartelizing lift producers failed inter alia because the court considered that it had not been proven that damage was caused by the cartel. Difficulties are, however, expected to result from the use of the concept of the undertaking when indicating the infringer of the competition rules and seemingly the entity liability for damage caused thereby.