EN Official Journal of the European Union C 67/83

Opinion of the European Economic and Social Committee on the ‘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) 404 final — 2013/0185 (COD)

and on the ‘Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union’ C(2013) 3440

2014/C 67/16

Rapporteur: Ms MADER

On 1 July and 8 July 2013 respectively, the European Parliament and the Council decided to consult the European Economic and Social Committee, under Article 114 of the Treaty on the Functioning of the European Union, on the

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) 404 final — 2013/0185 (COD).

On 8 May 2013 the Commission decided to consult the European Economic and Social Committee, under Article 304 of the Treaty on the Functioning of the European Union, on the

Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union

C(2013) 3440

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 2 October 2013.

At its 493rd plenary session, held on 16 and 17 October 2013 (meeting of 16 October 2013), the European Economic and Social Committee adopted the following opinion by 133 votes to 1, with 4 abstentions.

1. Conclusions and recommendations

1.1 General conclusions

1.1.1 The absence of national rules that adequately govern actions for damages or, on the other hand, the disparity between national legislations places not only victims, but also the perpetrators of competition law infringements in a position of inequality.

1.1.2 This may also give a competitive advantage to undertakings that have breached articles 101 or 102 of the Treaty on the Functioning of the European Union, but which do not have their headquarters or do not conduct business in a Member State whose legislation is favourable.

1.1.3 These differences in the liability rules may damage competition and hinder the proper functioning of the internal market.

1.1.4 The Committee thus welcomes the Commission's proposal to facilitate access to justice and enable victims to obtain compensation.

1.1.5 Nevertheless, the EESC considers that the proposal offers too much protection to undertakings benefiting from leniency programmes, to the detriment of the victims. Certain provisions of the proposed directive limit their scope for action because they are based on the notion that those requesting leniency programmes should be heavily protected against actions for damages.

1.1.6 Finally, the proposed directive needs to be aligned with the "Recommendation on common principles for injunctive and compensatory redress mechanisms in the Member States concerning violations of rights granted under Union Law" (1) because both texts make provision for all Member States to have national collective redress mechanisms, particularly for actions for damages.

1.2 Recommendations on the proposal for a directive

1.2.1 The EESC welcomes the proposed directive governing actions for damages in competition matters.

1.2.2 The Committee believes that obtaining evidence is a crucial factor for exercising the rights of appeal and approves the provisions proposed by the Commission to allow proportionate access, under judicial supervision, to the information that is relevant and necessary for the action.

1.2.3 Like the Commission, it supports leniency programmes which make it possible to identify numerous infringements and feels that undertakings should not be discouraged from cooperating, whilst considering that these programmes should not protect undertakings more than is strictly necessary. In particular, such programmes should not absolve them from paying damages to victims.

1.2.4 The EESC supports the provision aimed at ensuring that once a ruling issued by a national competition authority or appeal body has become definitive it cannot be called into question by the courts dealing with the action for damages.

1.2.5 Similarly, the Committee approves the Commission's proposals on the beginning of the period of limitation, which include the recommendations it had made in its opinion on the White Paper, and supports the provisions on the suspension of deadlines when cases are referred to the national competition authority.

1.2.6 The EESC has taken note of the principle of joint and several liability and the arrangements envisaged for leniency programmes. Nevertheless, it is concerned about their enforcement, particularly in terms of establishing the level of liability of each undertaking.

1.2.7 The EESC considers it essential to avoid situations that could lead to unjust enrichment. It therefore welcomes the provisions governing the passing-on of overcharges which make it possible to guarantee that the compensation is paid to the person that actually suffered the harm and significantly improve the possibilities for consumers and small undertakings to receive compensation for the harm suffered.

1.2.8 The EESC supports the Commission's assessment of how useful it might be to have out-of-court settlements, providing that they are well formulated, independent and remain optional. Furthermore, it feels that alternative dispute settlement mechanisms cannot be a credible solution for victims unless there are effective mechanisms for judicial remedies, particularly class action

1.2.9 Bringing the proposal for a directive into line with the recommendation on collective redress is necessary because both documents provide for Member States to have national collective redress mechanisms, particularly for actions for damages. In this connection, the Committee regrets that the introduction of a class action in competition matters, which should have been an effective mechanism for consumers, has been left out but included in a recommendation – which is not binding – encouraging Member States to establish collective redress mechanisms.

1.3 Recommendations on the communication

1.3.1 The EESC welcomes the communication on quantifying the harm suffered by the victims of competition law infringements.

1.3.2 It feels that the right to compensation for the full amount of harm caused by an anti-competitive practice is a fundamental right and that action for damages is a useful adjunct to the powers of the public authorities and national competition bodies.

1.3.3 Finally, the Committee shares the Commission's thinking on the difficulty of assessing the harm. It considers that the guidelines contained in the "practical guide" appended to the communication should provide a useful tool for the courts and parties, whilst maintaining the independence of the national judge as regards existing national rules.

2. Commission proposals

2.1 The proposal for a directive

2.1.1 Following a very broad consultation procedure (2), on 11 June 2013, the European Commission presented a 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.

2.1.2 The Commission's goal is to ensure that articles 101 and 102 and national competition laws are fully effective by enabling everyone, be they consumers, undertakings or public authorities, to seek compensation for the harm caused by anti-competitive practices of any kind.

2.1.3 The Commission notes that the combination of public and private actions is necessary and complementary for enforcing competition rules.

2.1.4 It emphasises that there are currently numerous obstacles and some legal uncertainty, particularly due to the differences in rules within the Member States, which are undermining the effectiveness of the law and the proper functioning of the market.

2.1.5 In order to level the playing field between the Member States in terms of judicial protection of the rights guaranteed by the Treaty and the absence of an effective framework in certain countries for compensating victims of breaches of articles 101 and 102, it proposes establishing common standards aimed at: — improving the process of obtaining evidence, while respecting the principle of proportionality, and taking account of the specific characteristics associated with the leniency procedures and settlements, whose importance it underlines; — making provision for the decisions of the national competition authorities identifying an infringement to automatically constitute proof of the existence of an infringement before Member States' courts; — drawing up rules on limitations to prevent deadlines from expiring before victims have had a chance to assert their rights; — establishing a principle of business solidarity whilst maintaining more favourable rules for leniency in order to retain the benefits of cooperation; — establishing rules for taking account of the passing-on of costs; — establishing a straightforward presumption of harm in cartel cases; — encouraging recourse to consensual dispute resolution mechanisms by making provision for suspending periods of limitation during this phase.

2.2 The communication

2.2.1 This states that Articles 101 and 102 TFEU are public order provisions aimed at ensuring that competition is not distorted within the internal market and that they also create rights and obligations for undertakings or consumers which are protected by the European Union's Charter of Fundamental Rights.

2.2.2 The communication then focuses on the difficulty of quantifying harm in competition cases and the fact that this responsibility is entrusted to the national courts, through these can refer to a practical guide drawn up by the Commission's departments.

2.2.3 To supplement the proposed directive, the Commission has appended to the communication a practical guide on quantifying harm.

2.2.4 This purely informative guide is in no way binding on the national court or the parties. Its aim is to make available to the national courts or parties information on the methods and techniques that can be used to quantify harm.

3. General comments on the proposal for a directive

3.1 In its opinion on the White Paper on action for damages resulting from infringements of the Union's antitrust rules, the EESC had stressed the need for adopting measures to improve the legal conditions under which victims of an anti-competitive practice can assert their right to seek compensation for the harm suffered. The Committee therefore welcomes the proposal, which will help to remove the obstacles identified.

3.2 It feels that the action for damages must supplement the action of the public authorities and national competition bodies and that its deterrent role will have a beneficial effect.

3.3 It feels that action for damages is a fundamental right for victims, who may be consumers and/or undertakings, and it must lead to compensation in full for the harm suffered as a result of the anti-competitive practices.

3.4 The right to seek compensation for harm suffered has in fact been affirmed several times since 2001; the ECJ has ruled that anyone must be able to seek compensation for such harm (3). Moreover, Article 47 of the Charter of Fundamental Rights recognises the right to an effective remedy when the rights guaranteed by the Union's law have been violated.

3.5 Like the Commission, the Committee thinks that the leniency programmes help to detect many infringements, and feels that undertakings should not be discouraged from cooperating. At the same time, it thinks that these programmes should not offer undertakings absolute protection and should not hinder the victims' right to compensation.

3.6 It notes that the proposed directive is supplemented by a recommendation encouraging the Member States to establish collective redress mechanisms to guarantee individuals effective access to justice. The EESC regrets that the proposal does not address the issue of introducing a class action procedure, the only mechanism that can guarantee fully effective redress and that access to collective redress is relegated to a recommendation that has no binding force. The EESC calls on the Commission to legislate on this question.

3.7 Finally, the Committee shares the Commission's thinking on the difficulty of assessing harm. It thinks that the guidelines contained in the "practical guide" appended to the communication will provide a useful tool to the courts and parties, whilst retaining some leeway for interpreting the existing national rules.

4. Specific comments on the proposal for a directive

4.1 Obtaining evidence.

4.1.1 The EESC believes that obtaining evidence is a fundamental factor in allowing cases to be examined.

4.1.2 Similarly, it believes that it is necessary to provide for access to evidence so that victims can acquire the information they need for their action for damages.

4.1.3 Nevertheless, the Committee considers that access to such evidence should remain under judicial supervision and that disclosure should be proportionate in order to preserve the rights of the parties.

4.1.4 Like Directive 2004/48/EC on respecting intellectual property rights (4), the proposed directive defines the disclosure of evidence by guaranteeing that all Member States should allow minimum effective access to the evidence which the applicants and/or defendants need to prove the justification for their claim for damages and/or to put forward a defence.

4.1.5 This definition reduces the legal uncertainty created by the Pfleiderer ruling (5), which accepted that, in the absence of European legislation on access to information obtained by a national authority under a leniency programme, it is up to the national court to determine, on a case-by-case basis and according to national law, the conditions under which the disclosure of documents forming part of a leniency procedure to the victims of an infringement of competition law may be authorised or refused.

4.1.6 Finally, Article 6 of the proposal for a directive provides for complete protection for leniency corporate statements and for settlement submissions.

4.1.7 It also provides for temporary protection, until the procedure has been closed, for documents specifically drawn up by the parties for purposes deriving from public enforcement of the law (replies to a request for information from the competition authority, statement of objections).

4.1.8 The EESC approves the fact that omitting, refusing to disclose or destroying evidence should be penalised effectively and proportionately to act as a deterrent.

4.1.9 The details in question relate more precisely to undertakings involved in a case brought by the competition authority in relation to the facts underlying a damages claim (objective element) and/or which knew or should reasonably have known that the case was being dealt with or going to be dealt with by the national court.

4.2 Effect of national decisions: the EESC supports the provision to ensure that once a ruling issued by a national competition authority or appeal body has become definitive it should not be called into question by the court dealing with the action for damages.

4.3 Limitation periods

4.3.1 The EESC considers it essential to establish rules for calculating limitation periods to safeguard victims' rights.

4.3.2 The Committee supports the Commission's proposals on the beginning of the limitation period, which incorporate the recommendations it had made its opinion on the White Paper, and the provisions on the suspension of deadlines when cases are referred to the national competition authority. These provisions guarantee victims the right to an effective remedy. The Committee nevertheless feels that the suspension could be increased to two years after the date on which the decision noting an infringement became definitive.

4.4 Liability

4.4.1 The EESC takes note of the principle of solidarity, which cannot be questioned.

4.4.2 It wonders what conditions would apply if one of the undertakings had been involved in a leniency programme, particularly the difficulty of proving or establishing liability for each of the undertakings and assessing their contribution in terms of their financial capacities.

4.5 Passing-on of overcharges

4.5.1 The EESC welcomes the fact that the proposed directive includes provisions for the passing-on of overcharges generated by fraudulent practices. It considers it essential to avoid situations that could lead to unjust enrichment.

4.5.2 It believes that the presumption in Article 13 concerning indirect purchasers is an important means of guaranteeing that the compensation is paid to the person that actually suffered the harm and significantly improves the possibilities for consumers and small undertakings to receive compensation for the harm suffered.

4.5.3 The Committee supports the principle of full compensation for harm as defined in Article 2 and repeated in Article 14.

4.6 Quantifying harm

4.6.1 The EESC supports the principle of a presumption of harm in proven cartel cases in so far as this presumption removes an obstacle to actions for damages, whilst maintaining the rights of the contravening undertaking.

4.6.2 It believes that simplifying the evidence must be sufficient not to hamper actions for damages, since the evidence is always difficult to establish in competition cases.

4.6.3 The EESC is in favour of making a "practical guide" available such as the one appended to the communication, since it gives the parties a degree of certainty regarding establishing the amount of the damages.

4.7 Consensual dispute resolution

4.7.1 The EESC takes note of the Commission's thinking on the benefits of consensual settlements, which make it possible to reach a fair solution at a lower cost, and approves the proposed provisions on the suspension of periods of limitation and the effects of consensual settlements on legal actions which will encourage recourse to these options.

4.7.2 Nevertheless, it points out that the support for these mechanisms presupposes that they are well formulated, independent and remain optional, so as on no account to restrict recourse to the courts.

4.7.3 Moreover, as it emphasised in its opinion on the White Paper, the Committee believes that alternative dispute settlement mechanisms cannot constitute a credible solution for victims unless there are effective mechanisms for judicial remedies, particularly class action.

4.8 Assessment: The Committee supports the Commission's assessment policy so that lessons may be learned from it and, where appropriate, the necessary measures adopted.

5. Comments on the communication

5.1 The victim of an infringement of competition law seeking damages for his/her harm may be faced with a number of obstacles arising from the differences between national rules and procedures for quantifying harm.

5.2 The right to an effective remedy must not be hampered by disproportionate obstacles adding to the inherent difficulty of quantifying harm in competition cases. The truth is that it is impossible to determine precisely how the conditions and behaviour of market operators would have changed if the infringement had not occurred. It is only possible to guess at a probable scenario.

5.3 The EESC believes, therefore, that the practical guide can serve as a useful tool for the national court, whose independence is respected by the purely informative nature of the guide and the fact that it is not legally binding.

5.4 In any event, it is the applicable law that will determine the method for quantifying the harm in the particular circumstances of any given case.

5.5 The court dealing with the case will also have to take into consideration the evidence available, the resources at its disposal in terms of cost and time and assess their proportionality as regards the value of the claim for damages submitted by the victim.

Brussels, 16 October 2013. The President of the European Economic and Social Committee Henri MALOSSE

(1) OJ L 201, 26.7.2013, p. 60.

(2) Consultations on the 2005 Green Paper and the 2008 White Paper.

(3) Case C-453/99 (Courage and Créhan) and Joined Cases C-295 to 298/04 (Manfredi, Cannito, Tricano and Murgolo).

(4) OJ L 195, 2.6.2004, p. 16.

(5) Case C-360/09.