Commission staff working paper - Annex to the Green Paper - Damages actions for breach of the EC antitrust rules {COM(2005) 672 final}
Date: 2005-12-19
Institutions: European Commission
Subjects: application of EU law, competition law, control of restrictive practices, damages, dominant position, impact study, single market

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 19.12.2005 
SEC(2005) 1732 

COMMISSION STAFF WORKING PAPER 

Annex to the 

GREEN PAPER 

Damages actions for breach of the EC antitrust rules  

{COM(2005) 672 final} 

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TABLE OF CONTENTS 

Section I: Introduction................................................................................................................ 6 

A. 

B. 

The subject of the Commission Staff Working Paper.................................................. 6 

The aims and advantages of private enforcement ........................................................ 6 

1. Compensation......................................................................................................................... 6 

2. Deterrence.............................................................................................................................. 6 

3. Bringing competition law closer to the citizen....................................................................... 7 

4. Other advantages of private enforcement .............................................................................. 7 

5. A balanced approach ............................................................................................................. 8 

C. 

D. 

E. 

F. 

Private enforcement is a complement to public enforcement ...................................... 8 

Action for damages for breach of EC antitrust rules is an established right in 
Community law............................................................................................................ 9 

Building on the reform of Regulation 1/2003 ............................................................ 11 

Obstacles to actions for damages ............................................................................... 12 

1. Collective actions ................................................................................................................. 12 

2. Fault  .................................................................................................................................... 12 

3. Burden and standard of proof .............................................................................................. 12 

4. Collection and presentation of evidence .............................................................................. 13 

5. Evidential value of national competition authorities and national court decisions ............ 13 

6. Quantification of damages ................................................................................................... 13 

7. Passing on defence and indirect purchaser claims .............................................................. 13 

8. Amount of damages .............................................................................................................. 14 

9. Time limitations.................................................................................................................... 14 

10. Costs ................................................................................................................................... 14 

11. Applicable law.................................................................................................................... 14 

G. 

Facilitating actions for damages for breach of EC antitrust rules.............................. 15 

Section II: Access to evidence ................................................................................................. 18 

A. 

Disclosure and production of documentary evidence ................................................ 18 

1. The general framework ........................................................................................................ 18 

a. The situation in the EU Member States................................................................................ 18 

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b. European and international initiatives.................................................................................. 19 

2. Measures against the refusal to disclose evidence and against the destruction  

of evidence.................................................................................................................. 21 

a. Sanctions for not disclosing evidence .................................................................................. 21 

b. The prevention of destruction of evidence........................................................................... 21 

3. Witnesses in court................................................................................................................. 22 

a. Summoning of witnesses to give evidence before the court ................................................ 22 

b. Examination and cross-examination of witnesses in court .................................................. 23 

4. Access to documents held by the Commission or by national competition authorities........ 24 

a. Access under the rules concerning administrative openness................................................ 24 

b. Access by national courts under the duty of loyal co-operation between the Commission 

and the Member States ............................................................................................... 24 

B. 

Alleviating the claimant’s evidentiary burden of proof ............................................. 25 

1. The burden and the standard of proof.................................................................................. 25 

2. Alleviating the claimant’s burden of proving the infringement in case of information 

asymmetry .................................................................................................................. 26 

3. Alleviating the claimant’s burden of proving the infringement in case of a prior  

decision of a national competition authority ............................................................. 27 

4. Evidentiary consequences of a refusal to disclose evidence ................................................ 27 

C. 

Policy options............................................................................................................. 28 

1. Options in relation to disclosure of documentary evidence................................................. 28 

2. Options in relation to access to documents held by the Commission or by a national 

competition authority ................................................................................................. 29 

3. Options in relation to the alleviation of the claimant’s evidentiary burden of proving the 

antitrust infringement................................................................................................. 30 

Section III: Fault requirement .................................................................................................. 31 

A. 

B. 

Introduction ................................................................................................................ 31 

Policy Options............................................................................................................ 33 

Section IV: Damages................................................................................................................ 34 

A. 

B. 

Introduction ................................................................................................................ 34 

Elements relevant to the definition of damage........................................................... 34 

1. Compensation....................................................................................................................... 34 

2. Recovery of illegal gain........................................................................................................ 34 

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3. Exemplary or punitive damages........................................................................................... 35 

4. Interest on damages ............................................................................................................. 36 

C. 

Quantification of damages ......................................................................................... 37 

1. Introduction.......................................................................................................................... 37 

2. Methods for calculation of damages .................................................................................... 38 

a. The simple calculation methods ........................................................................................... 39 

b. More complex calculation methods ..................................................................................... 39 

c. The sampling method ........................................................................................................... 40 

d. The ex aequo et bono quantification .................................................................................... 40 

3. Two special cases: calculating lost profits of the claimant and calculating 

damage on the basis of the defendant’s illegal gain .................................................. 41 

a. Calculating lost profits of the claimant ................................................................................ 41 

b. Calculating damage on the basis of the defendant’s illegal gain ......................................... 42 

D. 

E. 

Split Proceedings........................................................................................................ 42 

Policy Options............................................................................................................ 42 

1. Options in relation to the basis of defining the damage ...................................................... 42 

2. Options in relation to methods of quantification of damages .............................................. 43 

3. Other options........................................................................................................................ 44 

Section V: The passing on defence and indirect purchaser standing ....................................... 45 

A. 

B. 

C. 

D. 

Introduction ................................................................................................................ 45 

The passing on defence .............................................................................................. 45 

Indirect purchaser standing ........................................................................................ 49 

Policy Options for the treatment of the passing on defence and indirect purchaser 
standing ...................................................................................................................... 50 

Section VI: Defending consumer interests............................................................................... 52 

A. 

B. 

Introduction ................................................................................................................ 52 

Collective and representative actions for antitrust damages cases in the Member 
States .......................................................................................................................... 54 

C. 

Policy options............................................................................................................. 55 

Section VII: Costs of actions.................................................................................................... 57 

A. 

Introduction ................................................................................................................ 57 

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B. 

C. 

D. 

E. 

F. 

The obligation of the Member States to provide for efficient cost  
rules guaranteeing access to courts ............................................................................ 57 

Cost rules of the Community courts........................................................................... 59 

Cost rules of the courts of the Member States ........................................................... 60 

Cost rules as incentives for bringing an action .......................................................... 61 

Policy Options............................................................................................................ 62 

Section VIII: Coordination of public and private enforcement................................................ 63 

A. 

B. 

C. 

D. 

Introduction ................................................................................................................ 63 

Leniency and civil actions as part of an optimum deterrence of infringements ........ 63 

Relationship between leniency programs and damage claims................................... 64 

Policy options............................................................................................................. 65 

Section IX – Jurisdiction and Applicable Law......................................................................... 67 

A. 

B. 

Jurisdiction and consolidation of claims .................................................................... 67 

Applicable Law .......................................................................................................... 68 

1. Introduction.......................................................................................................................... 68 

2. Factors determining the applicable law............................................................................... 68 

C. 

Policy options............................................................................................................. 71 

Section X: Other issues ............................................................................................................ 73 

A. 

Use of expertise in court ............................................................................................ 73 

1. Introduction.......................................................................................................................... 73 

2. Policy Option on Experts ..................................................................................................... 74 

B. 

Impact of limitation periods in the Member States.................................................... 74 

1. Introduction.......................................................................................................................... 74 

2. Limitation periods in the Member States ............................................................................. 75 

3. Limitation periods in Community law.................................................................................. 75 

4. Policy option on limitation periods...................................................................................... 76 

C. Causation ............................................................................................................................. 77 

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SECTION I: INTRODUCTION 

A. 

1. 

2. 

3. 

THE SUBJECT OF THE COMMISSION STAFF WORKING PAPER 

The aim of the Green Paper and this Commission Staff Working Paper is to look at 
ways  in  which  damages  actions  for  breach  of  Articles  81  and  82  of  the  EC  Treaty 
(EC  antitrust  rules)  before  national  courts  may  be  facilitated  so  as  to  better 
compensate  victims  and  complement 
the  enforcement  activities  of  public 
enforcement  authorities.  Damages  actions  are  part  of  “private  enforcement”  of 
Community competition law.  

What  is  meant  by  “private  enforcement”  is  enforcement  by  means  of  legal  action 
brought  by  the  victim  of  anti-competitive  behaviour  before  a  court.  The  courts 
charged  with  the  responsibility  of  administering  these  actions  in  Europe  are  the 
national courts of the Member States. There is no court at EC level competent to hear 
damages actions brought by private parties for breach of EC antitrust rules.  

Private enforcement and public enforcement are the two pillars of enforcement of EC 
antitrust  rules.  Private  enforcement  differs  from  public  enforcement,  whereby  the 
public  authorities  (the  Commission  at  EU  level  and  the  national  competition 
authorities at the Member State level) investigate suspected violations of competition 
law  and  can  impose  certain  measures  and  sanctions  such  as  fines  on  infringing 
undertakings.  Fines  are  paid  into  the  public  budget  and  the  activities  of  the  public 
enforcer  are  paid  for  by  the  state.  Private  enforcement  actions  are  paid  for  by  the 
individual bringing the action, and that individual can recoup the money paid out as 
part of the award of compensation if the action is successful. 

B. 

THE AIMS AND ADVANTAGES OF PRIVATE ENFORCEMENT 

1. Compensation 

4. 

It is fundamental to the idea of private damages actions that the victim of a violation 
of the law is entitled to compensation for the loss suffered as a result of the violation 
in  question.  If  competition  law  is  to  better  reach  consumers  and  undertakings  and 
enhance their access to forms of legal action to protect their rights, it is desirable that 
victims of competition law violations are able to recover damages for loss suffered. 
Damages can be claimed both in actions between co-contractors, as well as in actions 
brought by third parties against infringers of the law. 

2. Deterrence 

5. 

6. 

Enhanced private enforcement will maximise the amount of enforcement as a means 
of enforcement additional to public enforcement. Increased levels of enforcement of 
the  law  will  increase  the  incentives  of  companies  to  comply  with  the  law,  thus 
helping to ensure that markets remain open and competitive. 

Increased  private  enforcement  will  enlarge  the  range  of  infringements  for  which 
competition law will be enforced as well as the level of enforcement generally. This 

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will arise in particular from litigation which is not brought on the back of decisions 
adopted by public authorities (“follow-on” actions). In relation to follow-on actions, 
facilitating  private  enforcement  will  add  more  frequently  than  before  to  the  fines 
imposed by public competition authorities the possibility for the victim of the anti-
competitive  behaviour  to  recover  his  losses.  Both  damages  awards  and  the 
imposition  of  fines  contribute  the  maintenance  of  effective  competition  and  deter 
anticompetitive behaviour.  

3. Bringing competition law closer to the citizen 

7. 

By  having  better  opportunities  to  enforce  directly  effective  rights  in  the  field  of 
competition,  the  businesses  and  citizens  in  Europe,  be  they  a  corporation  or  an 
individual  consumer,  will  be  brought  closer  to  the  competition  rules  and  be  more 
actively  involved  in  the  enforcement  of  those  rules.  The  same  can  be  said  for 
undertakings which would face the threat of litigation in the case of failure to comply 
with  the  obligations  imposed  on  them  by  Community  competition  law.  Bringing 
Community competition law closer to the citizen will encourage greater involvement 
in  the  enforcement  of  that  law  and  thus  a  greater  awareness  of  and  engagement  in 
competition law on the part of European citizens. It will help bring European citizens 
and undertakings into closer and more direct contact with laws and policies made at 
European Union level.  

4. Other advantages of private enforcement 

8. 

9. 

10. 

Private  action  can  have  a  number  of  other  advantages  for  private  parties.  For 
example,  national  courts  may  apply  civil  sanctions  of  nullity  to  contractual 
relationships at the same time as hearing a damages claim. National courts can order 
the  defendant  to  pay  the  successful  party’s  legal  costs  whereas  costs  are  not 
recoverable  in  the  case  of  a  complaint  to  a  competition  authority.  It  is  possible  to 
combine a claim before a national court with other claims. 

Private  enforcement  is  also  important  in  the  wider  context  of  enhancing  Europe’s 
competitiveness.  Competition  in  the  market  encourages  companies  to  innovate, 
operate  efficiently,  and  contribute  to  a  more  efficient  use  of  resources,  leading  to 
improved growth in productivity. Open and competitive markets are the main driver 
behind  competitiveness,  and  ultimately  the  standard  of  living  of  citizens.  This  is 
explicitly  acknowledged in the Commission’s Action Plans for the renewed Lisbon 
Strategy forming a Partnership with the Member States. The objective is to enhance 
Europe’s  delivery  of  economic  growth  and  jobs.  Ensuring  open  and  competitive 
markets  is  one  key  area  where  stronger  action  is  needed  both  at  EU  and  national 
level. 

Enforcement of competition rules plays  a  key role in ensuring  a level playing field 
for companies in the EU. It keeps private barriers to competition (e.g. cartels and the 
exclusionary  abuses  of  dominant  firms)  in  check  by  using  competition  law 
increasing  private 
instruments 
enforcement of EC antitrust rules would further add to the efficiency of competition 
law  enforcement,  and  make  an  important  contribution  to  the  key  objective  of 
ensuring open and competitive markets in the EU’s internal market. 

individual  cases.  Facilitating  and 

tackle 

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11. 

A  higher  level  of  private  enforcement  of  competition  law  is,  therefore,  fully  in 
keeping  with  the  wider  objectives  of  the  renewed  Lisbon  Strategy  to  help  Europe 
become more competitive to the ultimate benefit of European citizens and business 
alike. 

5. A balanced approach 

12. 

C. 

13. 

14. 

15. 

While  private  enforcement  therefore  has  important  advantages  both  for  individuals 
and  undertakings  as  well  as  for  society  in  general,  any  debate  on  how  private 
enforcement  could  be  facilitated  should  carefully  consider  the  costs  which  are 
associated  with  furthering  private  competition  law  litigation  in  the  case  of 
unmeritorious or not well founded claims. As the social costs of litigation outweigh 
the benefits in those cases, the bringing of such claims should not be facilitated. The 
Commission wants to use the debate to find ways to better compensate for antitrust 
injuries and increase deterrence, while avoiding the situation where defendants settle 
simply  because  litigation  costs  are  too  high.  The  ultimate  objective  should  be  to 
foster a competition culture, not a litigation culture. 

PRIVATE ENFORCEMENT IS A COMPLEMENT TO PUBLIC ENFORCEMENT 

Private  actions  before  national  courts  are  to  a  large  extent  a  complement  to  public 
enforcement  of  EC  antitrust  rules.  Private  action  should  not  and  cannot  replace 
public enforcement. The role of the public authorities will continue to be of critical 
importance in detecting anti-competitive practices such as cartels, where the special 
investigation  powers  vested  in  the  public  authorities  and  leniency  programs  are 
indispensable  for  efficient  enforcement  of  competition  law.  Also,  competition 
authorities  will  continue  to  play  a  strong  role  in  cases  in  which  a  full  economic 
analysis is necessary.  

Private  litigation  can  in  particular  deal  with  cases  which  the  public  authorities  will 
not deal with, in particular due to resource constraints and other prioritisation needs. 

The  principle  of  private  enforcement  of  Community  law  rights  in  addition  to  their 
enforcement by the public authorities goes back to the van Gend & Loos judgment. 
In  that  judgment  the  Court  expressed  the  principle  of  the  complementary  nature  of 
public and private enforcement of rights deriving from Community law as follows: 

“The  vigilance  of  individuals  concerned  to  protect  their  rights  amounts  to  an 
effective  supervision  in  addition  to  the  supervision  entrusted  by  Articles  [226]  and 
[227] to the diligence of the Commission and of the Member States”.1 

1 

Case  26/62  Algemene  Transport-  en  Expeditie  Onderneming  van  Gend  &  Loos  v  Nederlandse 
administratie der belastingen [1963] ECR 1. 

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D. 

16. 

17. 

18. 

19. 

2 

3 

4 

5 

ACTION FOR DAMAGES FOR BREACH OF EC ANTITRUST RULES IS AN ESTABLISHED 
RIGHT IN COMMUNITY LAW 

Private  enforcement  of  EC  competition  rules  can  take  different  forms,  actions  for 
damages only being one of them. Damages actions are brought against the infringer 
of the law to seek a monetary award to compensate the victim for the harm he has 
suffered.  Next  to  this  kind  of  actions,  private  enforcement  can  take  the  form  of 
actions for nullity or actions for injunctive relief, e.g. actions to stop anticompetitive 
behaviour  or  actions  for  enforcement  of  a  contract.  Injunctions  could  be  awarded 
either as an interim measure or as a final award. 

Whereas nullity as a sanction for infringements of Article 81 EC has been explicitly 
foreseen by the EC Treaty itself (Article 81(2) EC), damages actions or actions for 
injunctive  relief  can  be  deduced  from  Article  10  EC.  In  addition,  according  to  the 
case-law  of  the  Community  Courts,  the  full  effectiveness  of  directly  applicable 
Community law requires national courts to have jurisdiction to grant interim relief2 
as well as damages.3 

The obligation for national courts to provide a remedy in damages was established by 
the  European  Court  of  Justice  (ECJ)  in  its  ruling  Courage  v  Crehan  which 
specifically  concerned  the  enforcement  of  the  rights  and  obligations  created  by 
Article 81 EC.4 

The  Courage  judgment  is  based  on  a  long  established  jurisprudence  of  the 
Community  Courts  relating  to  the  effective  protection  of  Community  rights  by  the 
courts  of  the  Member  States.  This  case  law  is  focussed  on  the  protection  of 
individuals’  rights  against  violations  of  Community  law  committed  by  Member 
States. This case law includes for instance the obligation on national courts to grant 
interim relief when a Community law right is under judicial examination,5 to provide 

Case  C-213/89  The  Queen  v  Secretary  of  State  for  Transport,  ex  parte:  Factortame  and  others 
(“Factortame I”) [1990] ECR I-2433 at paras 20 and 21. In para 104 of his opinion in the case C-264/01 
AOK  Bundesverband  [2004]  ECR  I-2493,  AG  Jacobs  declared  that  the  reasoning  of  the  Courage 
judgment  was  applicable,  in  his  opinion,  to  injunctive  relief  as  well.  As  to  the  criteria  for  granting 
injunctive interim relief, see joined cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and 
Zuckerfabrik Soest [1991] ECR I-415 and case C-465/93 Atlanta Fruchthandelsgesellschaft and others 
(I) v Bundesamt für Ernährung und Forstwirtschaft [1995] ECR I-3761. 
Whilst  private  enforcement  of  competition  law  can  be  improved  through  rendering  damages  actions 
more effective, in other areas of EU law, other types of remedy actions may lead to better results. This 
might be the case in infringements of public procurement law, for example, where interim measures and 
the setting aside of unlawful decisions may be more appropriate. For example, in the case of a violation 
of  the  public  procurement  Directives  (Directives  2004/17  and  2004/18),  the  Remedies  Directives 
89/665  and  92/13  require  Member  States  to  make  other  types  of  remedies  available,  such  as  the 
possibility to obtain interim measures or the setting aside of unlawful decisions. These actions are very 
effective  if  they  are  rapid  and  available  at  a  stage  where  infringements  can  still  be  corrected  (i.e. 
preferably during the award procedure which precedes the signature of a public contract). 
Case C-453/99 Courage v Crehan [2001] ECR I-6297. See also the Opinion of AG Van Gerven in case 
C-128/92 Banks v British Coal [1994] ECR I-1209 at paras 36 to 54. 
See for instance Factortame I, as note 2 above. 

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for restitution of charges levied by a Member State contrary to Community law,6 or 
to provide damages for breach of Community law by a Member State.7 The Courage 
ruling  extends  this  case  law  to  actions  brought  by  a  private  party  against  another 
private  party  for  breach  of  Community  law  by  holding  that  national  courts  must 
under  certain  circumstances  allow  individuals  to  claim  damages  for  breach  of 
Community competition law committed by another individual. 

20. 

The existence of a Community law remedy of damages against individuals for breach 
of Articles 81 and 82 EC follows from the same principles those that rise to such a 
remedy against Member States for breaches of other provisions of Community law. It 
is founded on the fact that, as is set out in the case law of the Court,8 Articles 81 and 
82  EC  create  directly  effective  obligations  on,  and  rights  for,  individuals.  The 
principle  of  direct  effect  means  that  individuals  can  assert  these  rights  and  enforce 
these obligations directly before a court in a Member State. Thus the Court held in 
the Courage ruling as follows:  

“[j]ust as it imposes burdens on individuals, Community law is also intended to give 
rise  to  rights  which  become  part  of  their  legal  assets.  Those  rights  arise  not  only 
where  they  are  expressly  granted  by  the  Treaty  but  also  by  virtue  of  obligations 
which the Treaty imposes in a clearly defined manner both on individuals and on the 
Member States and the Community institutions”.9  

21. 

In order to ensure the effectiveness (effet utile) of directly applicable Community law 
rights,  national  courts  must  provide  adequate  remedies  for  their  protection.  This 
protection includes the right to claim damages. This applies equally to all obligations 
and  rights  arising  as  a  matter  of  Community  law,  both  those  imposed  on  Member 
States and now, pursuant to the Courage ruling, those imposed on individuals. Thus 
the Court held as follows in the Courage ruling:10 

“The full effectiveness of Article [81] of the Treaty and, in particular, the practical 
effect of the prohibition laid down in Article [81(1)] would be put at risk if it were 
not open to any individual to claim damages for loss caused to him by a contract or 
by conduct liable to restrict or distort competition. 

Indeed,  the  existence  of  such  a  right  strengthens  the  working  of  the  Community 
competition  rules  and  discourages  agreements  or  practices,  which  are  frequently 
covert,  which  are  liable  to  restrict  or  distort  competition.  From  that  point  of  view, 
actions for damages before the national courts can make a significant contribution to 
the maintenance of effective competition in the Community.” 

6 

7 

8 
9 

10 

Case  68/79  Hans  Just  v  Danish  Ministry  for  Fiscal  Affairs  [1980]  ECR  501,  case  199/82 
Amministrazione  delle  Finanze  dello  Stato  v  San  Giorgio  [1983]  ECR  3595  and  case  C-192/95 
Comateb and others v Directeur général des douanes et droits indirects [1997] ECR I-165. 
Joined case C-6/90 and C-9/90 Francovich and others v Italy [1991] ECR I-5357 and joined cases C-
46/93 and C-48/93 Brasserie du Pêcheur v Bundesrepublik Deutschland and The Queen v Secretary of 
State for Transport, ex parte: Factortame and others (“Brasserie du Pêcheur”) [1996] ECR I-1029. 
Case 127/73 BRT v SABAM [1974] ECR 51 at para 16. 
Courage at para 19, referring to the judgments van Gend & Loos, as note 1 above, case 6/64 Costa v 
ENEL [1964] ECR 585 and Francovich, as note 7 above, at para 31. See also paragraphs 20 to 23 of 
Courage. 
Courage at paras 26 and 27. 

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22. 

E. 

23. 

24. 

The  conditions  for  the  exercise  of  this  right  to  a  remedy  to  damages  are,  in  the 
absence  of  Community  law  rules  on  the  matter,  to  be  determined  by  national  law, 
subject  to  the  principles  that  those  conditions  be  equivalent  to  the  conditions 
governing similar national law actions and that they allow for the effective exercise 
of the Community law right.11 The Green Paper and this Commission Staff Working 
Paper  explore  ways  in  which  a  remedy  in  damages  for  the  protection  of  rights 
deriving from Community antitrust law can be made effective in Europe. 

BUILDING ON THE REFORM OF REGULATION 1/2003 

The recent reform of the enforcement system of Community antitrust law set in place 
by Regulation 1/2003,12 which came into force on 1 May 2004, pursued the objective 
of an enhanced enforcement by the competition authorities of the Member States and 
by  national  courts.  This  enforcement  system  leads  to  an  increased  possibility  of 
private enforcement of competition law.  

Article  6  of  Regulation  1/2003  states  that  national  courts  shall  have  the  power  to 
apply  Articles  81  and  82.  Article  3  of  the  Regulation  provides  that  national  courts 
shall  apply  Community  competition  law  to  anticompetitive  behaviour  which  may 
affect  trade  between  Member  States  where  they  apply  national  competition  law  to 
such  behaviour.  In  order  to  facilitate  the  application  of  EC  antitrust  rules  by  the 
national  courts,  Article  15(1)  of  the  Regulation  expressly  provides  for  a  number  of 
mechanisms  by  which  courts  can  ask  for  opinions  or  information  from  the 
Commission.  

25. 

Recital  7  of  the  Regulation  explicitly  acknowledges  the  important  complementary 
role  played  by  private  damages  actions  before  national  courts  to  the  public 
enforcement of EC antitrust rules. It provides as follows: 

“National  courts  have  an  essential  part  to  play  in  applying  the  Community 
competition rules. When deciding disputes between private individuals, they protect 
the subjective rights under Community law, for example by awarding damages to the 
victims of infringements. The role of the national courts here complements that of the 
competition authorities of the Member States.” 

The  Commission  Notice  on  complaints  highlights  that  Regulation  1/2003  “pursues 
as  one  principal  objective  that  Member  States'  courts  and  competition  authorities 
should participate effectively in the enforcement of Articles 81 and 82”.13 The Notice 
indicates  the  importance  of  private  actions  to  the  enforcement  of  Community 
competition law. 

Modernisation  of  Community  competition  law  has  opened  the  way  for  increased 
private  enforcement  of  the  competition  rules  by  removing  the  Commission’s 
monopoly over Article 81(3) exemptions and by empowering national courts to apply 

Courage at para 29, referring to case C-261/95 Palmisani v INPS [1997] ECR I-4025 at para 27. 
Council Regulation 1/2003 on the implementation of the rules on competition laid down in Articles 81 
and 82 of the EC Treaty, OJ 2003 L 1/1. 
Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the 
EC Treaty, OJ 2004 C 101/65, para 9 (see generally part II A and B). 

26. 

27. 

11 
12 

13 

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those rules. To complete that process and to ensure the most efficient and effective 
enforcement  of  antitrust  law  in  Europe,  it  is  necessary  to  think  about  what  else  is 
required to make private enforcement a more effective means of enforcement. 

F. 

28. 

29. 

OBSTACLES TO ACTIONS FOR DAMAGES 

In  order  to  assist  in  the  identification  of  potential  obstacles  to  damages  actions  in 
Europe,  the  Commission  commissioned  a  study  on  the  conditions  for  claims  for 
damages  in  case  of  infringement  of  EC  competition  rules  which  was  published  on 
DG  Competition’s  website  on  2  September  2004.14  References  to  ‘the  Study’ 
throughout this Paper should be understood as references to this study.  

The conclusions of the Study were that not only is there “total underdevelopment” of 
actions  for  damages  for  breach  of  EC  antitrust  rules,  but  there  is  also  “astonishing 
diversity”  in  the  approaches  taken  by  the  Member  States.  It  identified  only  a  very 
limited number of successful damages awards for breach of EC antitrust rules since 
1962.  The  Study  also  established  that  there  has  been  a  similarly  limited  number  of 
damages awards under national competition law.  

30. 

The  Study  identified  inter  alia  the  following  principal  obstacles  to  private 
enforcement of EC antitrust law currently existing in the EC Member States (in the 
order as presented by the Study): 

1. Collective actions 

31. 

The  Study  notes  the  restrictions  on  collective  actions  in  the  Member  States.  In 
particular, the Study notes the rarity of collective actions (by which is meant a single 
claim  brought  on  behalf  of  a  group  of  affected  persons)  and  representative  actions 
(actions  brought  by  representative  organisations,  such  as  consumer  organisations). 
The  Study  views  this  as  an  obstacle  to  private  actions  in  so  far  as  it  reduces  the 
litigation options open to potential claimants.  

2. Fault 

32. 

Proof of negligence or intent is required in some Member States, in addition to proof 
of the infringement. The Study notes that this is an obstacle to private actions since it 
constitutes  an  additional  hurdle  to  be  overcome  by  the  claimant.  The  Study  notes, 
however, that in the majority of Member States there is either no fault requirement or 
there is a presumption of fault, either rebuttable or irrebuttable, once a  violation of 
competition  law  has  been  established,  or  the  violation  is  in  itself  considered  to 
constitute a fault. 

3. Burden and standard of proof 

33. 

14 

The Study notes that the fact that the burden of proof of causation and damage is on 
the claimant, which is the case in all Member States, is an obstacle to private actions. 
The  high  standard  of  proof  required  in  some  Member  States  also  exacerbates  the 

The  full  documentation  making  up  the  Study  is  available  on  DG  Competition’s  website  at 
http://europa.eu.int/comm/competition/antitrust/others/private_enforcement/index_en.html#damages. 

EN 

12 

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difficulties faced by claimants, particularly where the available evidence may not be 
very complete. Some Member States lower the standard of proof required in relation 
to  quantification  of  damages,  which  can  be  difficult  to  demonstrate  to  the  requisite 
standard. 

4. Collection and presentation of evidence 

34. 

35. 

The  Study  points  out  that  in  most  Member  States,  the  powers  of  national  courts  to 
order production of documents are very limited. In addition, very few Member States 
have  mandatory  pre-trial  disclosure  requirements.  Parties  are  thus  not  obliged  to 
produce  relevant  documents  unless  the  requesting  party  can  expressly  identify  the 
individual document he seeks, which makes it more difficult to obtain the evidence 
necessary to support a claim. The Study finds that restricted power on the part of the 
claimant  to  demand  production  of  evidence  constitutes  an  obstacle  to  successful 
claims. 

Furthermore,  the  Study  points  out  that  in  some  Member  States  only  the  judge  can 
question witnesses, and comments that this constitutes an obstacle to private actions 
in  the  event  that  questioning  through  the  judge  is  a  less  effective  way  of  obtaining 
information than direct questioning by the parties.  

5. Evidential value of national competition authorities and national court decisions 

36. 

The  Study  finds  that  the  fact  that  decisions  of  national  competition  authorities  (the 
home  NCA  and  those  of  other  Member  States)  and  courts’  decisions  of  other 
Member  States  do  not  have  binding  effect  on  the  courts  in  most  Member  States 
constitutes an obstacle to private actions. Claimants will as a result have formally to 
prove certain elements of the claim such as the infringement which would otherwise 
be taken as proven.  

6. Quantification of damages 

37. 

Proof  of  damages  is  complex  and  difficult  which  can  make  bringing  a  claim  for 
damages  very  risky.  The  Study  comments  that  quantifying  damages  is  a  “key 
difficulty”  in  bringing  private  actions  and  notes  that  there  is  a  lack  of  generally 
recognised  models  for  quantification.  Differences  of  approach  in  relation  to  lost 
profits can result in considerably different awards. A restriction on this could operate 
as a disincentive to private actions. Many Member States allow for a reduction in the 
standard of proof required when damages are difficult to quantify.  

7. Passing on defence and indirect purchaser claims 

38. 

39. 

The Study finds that the existence of the passing on defence is an obstacle to private 
actions because it considerably complicates claims. To the extent that it reduces the 
award  paid  to  the  direct  purchaser  it  also  decreases the  latter’s  incentive  to  bring  a 
claim. 

The Study observes that in most Member States actions by indirect purchasers are in 
theory  possible.  However,  the  Study  notes  that  the  lack  of  clarity  as  regards  the 
possibility  for  indirect  purchasers  to  bring  a  claim,  combined  with  difficulties  of 
proof (in particular as regards establishing causation and damages), constitute serious 

EN 

13 

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obstacles to claims by indirect purchasers. The Study notes that a combination of the 
possibility  for  the  defendant  to  rely  on  the  passing  on  defence  with  the  indirect 
purchaser actions would seriously restrict private actions. 

8. Amount of damages 

40. 

41. 

The Study finds that disincentives created by restrictions on the amounts that can be 
awarded,  such  as  the  unavailability  of  punitive  damages,  can  also  constitute  an 
obstacle to private actions. 

The  Study  notes  the  variety  between  Member  States  in  approaches  to  interest  on 
damages awards (variations on the level and duration of interest rates, e.g. whether 
interest  should  apply  as  from  the  date  of  the  infringement  or  the  date  of  the 
judgment).  It  comments  that  restrictions  on  the  level  and  period  of  application  of 
interest rates are a disincentive to private actions.  

9. Time limitations 

42. 

The  Study  observes  that  short  limitation  periods  constitute  obstacles  to  private 
actions. For instance, a short limitation period could time bar parallel actions brought 
after  an  original  successful  test  case.  Private  actions  brought  in  the  wake  of  an 
administrative infringement decision could also be time barred by a short limitation 
period.  A  short  limitation  period  could  also  be  problematic  where  limitations  on 
access to evidence are coupled with an obligation to present all evidence on filing a 
claim. 

10. Costs 

43. 

The  Study  notes  the  general  rule  that  in  all  Member  States  the  loser  pays  costs, 
although in practice fees are usually not fully recoverable. The high costs and risks 
involved  in  competition  actions,  as  well  as  the  length  of  proceedings,  operate  as  a 
disincentive to bringing private actions. This is exacerbated by the likelihood of non-
recovery  of  all  costs  (although  this  can  also  be  seen  as  reducing  the  risk  for  the 
claimant in the event that the claim is unsuccessful). 

11. Applicable law 

44. 

The  Study  notes  that  the  application  by  a  national  court  of  a  variety  of  different 
national laws in an action involving injuries suffered in different Member States can 
complicate  actions  and  constitute  an  obstacle  to  private  enforcement.  The 
Commission has presented a proposal for a Regulation on the law applicable to non-
contractual  obligations  (the  so-called  “Rome  II”  proposal).15  The  issue  of  the  law 
applicable  to  damages  claims  for  breach  of  Community  antitrust  law  should  be 
reviewed  in  the  light  of  the  general  rule  foreseen  in  the  Commission’s  proposal 
(whereby the place where the damage occurs is determining the law applicable to the 

15 

Proposal  for  a  Regulation  of  the  European  Parliament  and  the  Council  on  the  law  applicable  to  non-
contractual obligations, COM(2003) 427final as amended by the modified proposal; see the Report of 
the Committee of Legal Affairs of the European Parliament on this proposal, A6-0211/2005, 27 June 
2005. 

EN 

14 

   EN 

 
                                                 
G. 

45. 

46. 

47. 

48. 

recovery of that damage) and the possibility to make a proposal for a specific rule for 
the law applicable to damage claims for breach of Community antitrust law. 

FACILITATING ACTIONS FOR DAMAGES FOR BREACH OF EC ANTITRUST RULES 

The  Study  found  very  few  successful  damages  awards  for  breach  of  EC  antitrust 
rules. Summarising the major obstacles to these private damages actions, one could 
say that that is basically due to issues of information asymmetry. The uncertainty of 
the outcome in many cases means that the potentially high costs are not necessarily 
balanced by correspondingly good prospects of recovery. There are certain legal, and 
other,  questions  which  arise  which  involve  considerable  complexity  and  permit 
divergent  and  in  some  cases  conflicting  approaches.  The  risk/reward  balance  in 
antitrust litigation is skewed against bringing actions. This needs to be addressed in 
order  to  encourage  claimants  to  enforce  their  rights  and  bring  claims.  Encouraging 
actions  for  damages  has  been  acknowledged  by  the  ECJ  as  “strengthen[ing]  the 
working of [Articles 81 and 82 EC and thus] mak[ing] a significant contribution to 
the maintenance of effective competition in the Community.”16  

In  contrast  to  the  current  situation  in  Europe,  the  US  system  of  antitrust  litigation 
offers strong incentives to bring actions and thus addresses the difficult risk/reward 
balance in antitrust cases. The most notable features in the US system which have the 
effect  of  providing  strong  incentives  to  litigation  include  the  availability  of  treble 
damages, adapted rules on costs and the possibility to amalgamate small claims into 
one  effective  claim  under  the  class  action  procedural  rules.  Some  of  these  features 
can  be  classified  as  “financial  incentives”  and  are  generally  specific  to  antitrust 
litigation, while others are features common to the US litigation system as a whole.  

The  US  system  is  often  perceived  as  encouraging  unmeritorious  or  vexatious 
litigation.  This  system  should  be  examined  carefully  and  lessons  drawn  from  it,  as 
well  as  from  the  experiences  of  other  foreign  jurisdictions  in  this  field,  as 
appropriate.  The  protection  of  rights  deriving  from  Community  competition  law  is 
important, but it is also important to keep excessive litigation in check and to try to 
achieve some form of moderation in the enforcement system.  

In the European context, it is strongly arguable that increased clarity as to the rules 
will promote legal action. This applies not only to the substantive rules but also, in 
the context of damages actions for the enforcement of antitrust law, to the remedies 
and the procedures governing those actions. Clarity as to substance already exists in 
the  form  of  a  body  of  settled  law  at  EC  level  on  what  constitutes  a  violation  of 
Articles 81 and 82 EC. The existence of this settled case law was a sine qua non for 
the replacement of Regulation 17 by Regulation 1/2003. Without it, the Community 
could not have opened up the power to apply Article 81(3) to national courts and the 
competition authorities of the Member States. 

49. 

Private enforcement of Community competition law is therefore to be distinguished 
from substantive competition law, i.e. what sort of behaviour constitutes a violation 
of  the  law.  The  focus  of  the  Green  Paper  and  of  this  Commission  Staff  Working 

16 

Para 27 of Courage. 

EN 

15 

   EN 

 
                                                 
50. 

51. 

52. 

Paper is on the rules as to the remedies and procedures governing damages actions, 
i.e.  the  rules  for  the  enforcement  in  the  courts  of  the  substantive  law.  If  potential 
claimants, undertakings and individual citizens alike, do not know what the rules are 
which they will face in court before they commence an action, this will deter them 
from  litigating  and  enforcing  their  rights.  These  rules  can  make  a  big  difference 
because they can influence the likelihood of a finding of liability in the first place or 
they  can  determine  other  issues  as,  for  instance,  the  amount  of  the  damages  which 
the court is likely to award.  

In  the  European  context,  not  only  is  clarity  desirable,  but  so  too  is  the  principle  of 
creating a level playing field of EC rights enforcement across the Member States. If a 
litigant in one Member State faces a better chance of his national court making him a 
larger damages award than the litigant in another Member State, then the substantive 
body  of  Community  competition  law,  itself  uniform  across  the  Union,  will  not  be 
enforced  in  a  uniform  way  across  the  Community.  It  is  essential  to  ensure  that  the 
rights  of  European  citizens  are  subject  to  the  same  protection  across  the  whole 
Community.  

Measures  to  improve  the  conditions  for  bringing  damages  actions  for  breach  of 
Community competition law can be taken both at Community and national level. It is 
hoped that the Green Paper will stimulate debate on the issue of private enforcement 
of  Community  antitrust  law  in  general,  including  discussion  as  to  the  possible 
methods of facilitation at all levels, Community and national, as appropriate. 

Although some of the issues debated in the Green Paper and this Commission Staff 
Working  Paper  are  common  to  a  number  of areas  of  civil  litigation  (of  which  civil 
claims  for  infringement  of  competition  law is  only  one)  it  is  appropriate  to  discuss 
these  issues  with  reference  to  competition  law  alone.  Civil  litigation  in  the  field  of 
competition touches upon a particular public interest and offers a number of specific 
aspects  which  –  taken  together  –  mean  that  the  bringing  of  an  action  is  unusually 
difficult. Among the most important of these specificities are: 

•  In the first place Articles 81 and 82 EC are fundamental provisions of the Treaty 
designed  to  protect  competition  in  the  single  market.17  In  its  Courage  judgment 
the ECJ recognised that the right to claim damages strengthens the working of the 
EC competition rules and discourages agreements and practices which are liable 
to  restrict  competition.  The  ECJ  also  recognises  that  actions  for  damages  before 
the  national  courts  can  make  a  significant  contribution  to  the  maintenance  of 
effective competition in Europe.18 The right of  private parties to bring an action 
for  damages  must  be  seen  as  being  in  the  public  interest.  Therefore  the  first 
distinguishing aspect is the public interest element. 

•  Secondly,  there  is  the  importance  of  market  context.  A  wider  review  of  the 
relevant  facts  will  be  justified  in  cases  in  which  competition  law  is  invoked.  To 
establish  an  infringement  of  the  competition  rules  it  is  generally  necessary  to 
define the relevant market and prove that the conduct complained of has negative 
effects  as  to  prices,  output  or  innovation  on  the  relevant  market.  Also, 

17 
18 

Case C-126/97 Eco Swiss v Benetton [1999] ECR I-3055, para 36. 
Para 27 of Courage. 

EN 

16 

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quantification  of  damages  may  be  particularly  difficult  as  in  the  case  of  an 
overcharge the difference between the cartelized price and a fictional competitive 
price  will  have  to  be  calculated.  These  difficulties  will  often  require  access  to 
evidence describing the commercial activities of other actual and potential players 
on  the  market  and  a  complex  analysis  requiring  the  gathering  of  a  substantial 
number  of  facts.  Therefore,  the  second  distinguishing  aspect  is  the  scope  of  the 
evidential burden facing a potential litigant.  

•  Furthermore, the evidential burden on the potential litigant is not only particularly 
high,  the  information  required  to  successfully  bring  a  case  is  also  unevenly 
distributed: as proof is often required of the defendant’s market position and his 
trading practices, there is a marked asymmetry between the – potential – claimant 
and the defendant who is accused of engaging in anti-competitive behaviour.  

53. 

Sections II to X of this Paper will address actions for damages on an issue by issue 
basis and identify options for the facilitation of damages actions in relation to each of 
the  major  issues  identified.  Responses  will  be  invited  on  the  options  and  questions 
identified  in  relation  to  each  of  the  issues  addressed  in  the  Green  Paper  and  this 
Commission  Staff  Working  Paper.  The  Commission  will  assess  what  steps,  if  any, 
are  necessary  to  promote  further  facilitation  of  actions  for  damages  of  EC  antitrust 
law on the basis of responses received to the Green Paper and this Commission Staff 
Working Paper. 

EN 

17 

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A. 

DISCLOSURE AND PRODUCTION OF DOCUMENTARY EVIDENCE 

SECTION II: ACCESS TO EVIDENCE 

1. The general framework 

a. The situation in the EU Member States 

54. 

55. 

56. 

It has been generally acknowledged that the difficulty for the claimant of obtaining 
evidence of the alleged antitrust infringement constitutes one of the major obstacles 
to  damages  actions.19  That  is  particularly  the  case  when  there  is  no  prior  decision 
from  a  competition  authority  finding  the  infringement.  In  these  so-called  ‘stand 
alone’  actions,  a  lot  depends  on  the  possibility  for  the  claimant  to  oblige  the 
defendant or even a third party to disclose documents in their possession, which may 
constitute evidence of the alleged infringement. 

Judges in all EU Member States have at least some power to order both parties to the 
dispute  and  third  parties  to  disclose  documents,  although  this  right  may  be  more 
limited  vis-à-vis  third  parties.  Usually  this  is  done  at  the  request  of  the  litigating 
parties, but it can also be done ex officio. Production is common to both common law 
and  civil  law  jurisdictions  in  Europe.  The  main  difference  between  these  two  legal 
traditions  is  that  in  the  common  law  tradition,  disclosure  is  to  a  large  extent 
conducted  by  the  parties  with  only  minimal  supervision  by  the  courts.  In  contrast, 
under civil law systems, the parties generally only have limited power to compel the 
“production of evidence” or to elicit adverse testimony from adverse or third parties. 
They  must  therefore  rely  upon  voluntary  co-operation  or  seek  intervention  by  the 
court.  That  being  said,  it  has  to  be  recalled  that  the  judges  in  civil  law  procedures 
generally play a more significant role in fact-finding than under common law. 

In some common law systems, disclosure is available ‘pre-trial’, which means that it 
takes place after the filing of a claim but before the final hearing on the merits.20 Via 
this procedure, the parties to an action disclose to each other all documents in their 
possession  or  power,  relating  to  matters  at  issue  in  the  action.  This  process  is  best 
seen as the ordered exchange of evidence and statements between the parties with a 
view to eliminate surprises and clarify what the claim is about, allowing both sides to 
evaluate the merits of their respective cases, and promote settlement. If the lawyers 
do a thorough job in disclosure, they should not be surprised by any of the answers 
the opposing party’s witnesses give to their questions during trial. On the other hand, 
extensive  pre-trial  procedures  can  be  expensive  and  time  consuming.  Such 
procedures can slow down litigation by requiring parties to spend large amounts of 
time and resources on producing and disclosing various documents to the other side. 
However,  delays  arising  from  disclosure  can  be  minimised  by  effective  case 
management on the part of the court. Where it appears that any proceedings would be 
facilitated  by  holding  a  case  management  conference  or  pre-hearing  review,  the 

19 

20 

EN 

Study  on  the  conditions  of  claims  for  damages  in  case  of  infringement  of  EC  competition  rules,  the 
at: 
Comparative 
http://europa.eu.int/comm/competition/antitrust/others/private_enforcement/index_en.html, page 11. 
A “pre-action” disclosure even covers the period prior to the lodging of a claim. 

(“Comparative 

Report”), 

available 

Report 

18 

   EN 

 
                                                 
57. 

national court should be able, on the request of a party or at its own initiative, to give 
directions for such a conference or review to be held.21  

An argument against extensive procedures to obtain evidence is that such measures 
might  be  abused  to  obtain  business  secrets.  However,  in  most  EU  Member  States, 
both  in  jurisdictions  which  provide  for  disclosure  and  in  jurisdictions  which  obtain 
evidence  primarily  through  production  orders,  safeguards  have  been  built  into  the 
rules  on  obtaining  evidence.22  The  extent  to  which  business  secrets  are  protected 
from  disclosure  varies  from  Member  State  to  Member  State.  For  example,  in 
Germany, the protection of business secrets extends to all technical work equipment 
and  working  methods.  However,  only  third  parties  can  invoke  business  secrets  in 
order  to  refuse  disclosure  of  documents.23  In  France,  the  grounds  of  refusal  are 
limited  to  trade  secrets  or  information  on  the  structure  of  competitors  and  do  not 
cover  accounting  documents.  In  some  jurisdictions,  under  certain  conditions,  all  or 
parts of the hearing can be held behind closed doors for reason of business secrets.24 
Under  English  procedural  law,  confidential  documents  may  be  prevented  from 
disclosure  by  the  Competition  Appeals  Tribunal  (CAT).25  In  the  ordinary  English 
courts,  there  is  no  such  express  power,  but  if  a  party  claims  secrecy  the  court  may 
order  a  controlled  measure  of  disclosure  deciding  in  each  case  what  degree  of 
disclosure  is  appropriate,  for  example,  by  restricting  disclosure  to  the  parties’ 
lawyers and requiring them not to disclose to their clients. 

b. European and international initiatives 

58. 

At European level, the disclosure of evidence has been dealt with in the Directive on 
the enforcement of intellectual property rights.26 According to its Article 6(1)  

“Member  States  shall  ensure  that,  on  application  by  a  party  which  has  presented 
reasonably available evidence to support its claims, and has, in substantiating those 
claims,  specified  evidence  which  lies  in  the  control  of  the  opposing  party,  the 
competent  judicial  authorities  may  order  that  such  evidence  be  presented  by  the 
opposing  party,  subject  to  the  protection  of  confidential  information.  For  the 
purposes of this paragraph, Member States may provide that a reasonable sample of 
a substantial number of copies of a work or any other protected object be considered 
by the competent judicial authorities to constitute reasonable evidence.” 

59. 

Some  form  of  disclosure  has  also  been  recommended  by  two  projects  which 
examined  the  European  and  international  harmonisation  of  civil  procedural  law, 

21 

22 

23 
24 
25 
26 

See for example for the UK, rule 20(1) of the Competition Appeal Tribunal Rules 2003 (“CAT Rules”, 
SI  2003  No.  1372),  available  at  http://www.catribunal.org.uk/documents/SI2003No1372.pdf  and  for 
Ireland,  Order  63B,  rules  13  and  14  of  the  Rules  of  the  Superior  Courts,  available  at 
http://www.courts.ie/rules.nsf/. 
In  Estonia,  Spain,  Italy,  Cyprus,  Malta,  the  Netherlands,  Portugal  and  Slovakia,  the  protection  of 
business secrets is not explicitly referred to as a ground for refusal to disclose. 
Section 142 (2) Zivilprozessordnung (ZPO). 
E.g. in Denmark. 
See CAT Rules, as note 21 above, rule 53. 
Directive 2004/48 on the enforcement of intellectual property rights, OJ 2004 L 157/45. 

EN 

19 

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namely the European Code of Civil Procedure27 and the ALI/UNIDROIT Principles 
of Transnational Civil Procedure.28 

The  draft  European  Code  of  Civil  Procedure  provides  for  limited  disclosure 
obligations.  Article  4  obliges  a  party  to  serve  on  all  other  parties  a  list  of  the 
documents in his possession, custody or power which relate to any question in issue 
in the action and which have not previously been communicated to the other parties, 
where a general rule of national law so requires or where the court so orders, after all 
the  parties  have  been  given  the  opportunity  to  be  heard.  Under  Article  4.2.1  of  the 
draft code, a party who has served such a list of documents shall communicate to or 
allow all other parties to inspect and to take copies of any of the documents listed, 
other  than  those  in  respect  of  which  the  party  serving  the  list  has  made  a  claim  of 
privilege  against  disclosure  or  communication.  The  grounds  of  privilege  against 
disclosure or communication are to be determined by national law. Where the court 
is  satisfied  that  the  communication  or  the  inspection  and  copying  of  a  document 
would cause undue harm to the party serving the list or to any other person, it may 
relieve  that  party  of  the  obligation  to  disclose  that  document.  A  court,  on  the 
application  of  a  party,  would  also  be  able  to  order  a  third  party  to  disclose  or 
communicate  any  document  which  he  has  in  his  custody,  power  or  possession  and 
which relates to a question in issue in the action. 

According to principle 16.2 of the ALI/UNIDROIT Principles of Transnational Civil 
Procedure,  a  national  court  should  upon  request  of  a  party,  “order  disclosure  of 
relevant,  non-privileged  and  reasonably  identified  evidence  in  the  control  or 
possession  of  another  party  or  non-party.”  The  fact  that  the  evidence  can  be  used 
against the one who disclosed it cannot justify a refusal to disclose. According to the 
comment  attached  to  this  principle,  “‘relevant’  evidence  is  probative  material  that 
supports,  contradicts,  or  weakens  a  contention  of  fact  at  issue  in  the  proceeding.  A 
party should not be permitted to conduct a so-called ‘fishing expedition’ to develop a 
case for which it has no support, but an opposing party may properly be compelled to 
produce evidence that is under its control. These Principles thereby permit a measure 
of limited ‘discovery’ under the supervision of the court.” This comment is linked to 
another  principle  which  requires  the  parties  to  set  out  “in  reasonable  detail”  the 
relevant  facts  of  their  case  and  to  describe  “with  sufficient  specification”  the 
available  evidence  to  be  offered  in  support  of  their  allegations,  the  so-called  fact-
pleading.29 

A Working Group for the Approximation of Civil Procedural Law was founded in 1987 and published a 
final report and draft law in 1994. See M. Storme (ed.), Rapprochement du Droit Judiciaire de l'Union 
européenne  -  Approximation  of  Judiciary  Law  in  the  European  Union,  (Dordrecht/Boston/London, 
1994). 
The  International  Institute  for  the  Unification  of  Private  Law  (UNIDROIT)  is  an  independent 
intergovernmental  organisation  with  its  seat  in  Rome.  Its  purpose  is  to  study  needs  and  methods  for 
modernising, harmonising and co-ordinating private and in particular commercial law as between States 
and groups of States. It has a joint working group on this issue with the American Law Institute (ALI) 
since  2000.  The  Principles  of  Transnational  Civil  Procedure  were  approved  both  by  UNIDROIT  and 
ALI  in  2004  (ALI/UNIDROIT  Draft  Principles  of  Transnational  Civil  Procedure,  February  2004 
(UNIDROIT  2004  Study  LXXVI  –  Doc  11)).  States  could  adopt  these  principles  and  court  rules  for 
handling transnational disputes outside arbitration.  
Principle  11.3  of  the  ALI/UNIDROIT  Principles  of  Transnational  Civil  Procedure,  as  note  28  above. 
The  requirement  of  “sufficient  specification”  ordinarily  would  be  met  by  identification  of  principal 
documents constituting the basis of a claim or defence and by concisely summarizing expected relevant 

60. 

61. 

27 

28 

29 

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20 

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62. 

Finally,  mention  should  be  made  of  Regulation  1206/2001  on  the  co-operation 
between  the  courts  of  the  Member  States  in  the  taking  of  evidence  in  civil  or 
commercial matters.30 On the basis of this regulation a court of a Member State may 
request a court of another Member State to take evidence or request to take evidence 
directly  in  another  Member  State.31  The  wording  of  the  regulation,  in  particular 
Article 1(2), seems to suggest that such request could relate to a pre-trial disclosure 
of evidence. 

2. Measures against the refusal to disclose evidence and against the destruction of evidence 

a. Sanctions for not disclosing evidence 

63. 

64. 

In  the  majority  of  Member  States,  a  person  who  refuses  to  produce  a  document 
following an order to do so, will be subject to penalties.32 These are usually financial 
penalties33, but sanctions can also take other forms. In Denmark and Germany, third 
parties refusing to disclose documents can be imprisoned for up to six months in the 
case  of  repeated  disobedience.  In  England  and  Ireland,  a  person  making  a  false 
disclosure  statement  without  an  honest  belief  in  its  truth  or  refusing  to  make 
disclosure may be held to be in contempt of court.34 

In some Member States, the refusal to disclose evidence may have consequences for 
the ongoing procedure.35 In Ireland, for example, any party failing to comply with an 
order for disclosure is liable to an order of attachment and, if a claimant, to have his 
action dismissed for want of prosecution or, if a defendant, to have his defence struck 
out.36  In  France,  a  defendant’s  refusal  to  disclose  may  result  in  damages  being 
awarded.  In  England,  a  party  that  is  dissatisfied  with  the  extent  of  his  opponent’s 
disclosure,  can  obtain  a  court  order  requiring  the  opponent  to  give  further  specific 
disclosure or conduct a further search. If such an order is made, failure to comply can 
amount  to  contempt  of  court  and  may  have  serious  consequences  including  the 
dismissal of a party’s claim or judgment being entered against him.  

b. The prevention of destruction of evidence 

65. 

A weakness of evidence taking in the context of private action is that the lodging of 
an action which is necessary to trigger disclosure or production of documents entails 
the  risk  that  the  defendant  destroys  incriminating  materials.  This  problem  is  only 

testimony of identified witnesses. ”Fact pleading” contrasts with ”notice pleading”, as permitted under 
the  US  Federal  Rules  of  Civil  Procedure.  Under  notice  pleading  it  is  not  necessary  to  make  a  prima 
facie case for a party to require discovery of evidence by another party. 
Regulation  1206/2001  on  co-operation  between  the  courts  of  the  Member  States  in  the  taking  of 
evidence in civil or commercial matters, OJ 2001 L 174/1. 
For  the  purpose  of  this  Regulation,  the  term  ”Member  State”  means  any  EU  Member  State  except 
Denmark. 
See the Comparative Report, page 65. 
Such is the case in Belgium, the Czech Republic, Denmark, Germany, Estonia, Spain, France, Latvia, 
Lithuania,  Hungary,  Poland,  Portugal,  Slovakia,  and  Sweden.  In  Denmark,  Germany  and  France, 
financial penalties are only imposed if disclosure is demanded from a third party. 
Contempt of court is a common law concept pursuant to which the court has full discretion in imposing 
fines or even ordering imprisonment. 
See also paragraph 88 and following of the Working Paper on the evidentiary consequences of a refusal 
to disclose evidence. 
Order 31, Rule 21 of the Rules of the Superior Courts as note 21 above. 

30 

31 

32 
33 

34 

35 

36 

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21 

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66. 

67. 

partly  addressed  by  the  above-mentioned  sanctions  for  non-disclosure.  To  be 
properly  addressed,  this  problem  may  require  sanctions  for  the  destruction  of  such 
materials which have a sufficient deterrent effect.37  

Another  way  of  addressing  this  issue  is  to  have  procedures  to  ”secure”  evidence, 
whereby  evidence  is  recorded  and  preserved  in  order  to  ensure  its  continued 
existence  or  availability,  for  example,  by  taking  copies  of  documents  that  may 
otherwise be destroyed. In the Czech Republic, evidence may be secured on a motion 
before  proceedings  on  the  case  proper  are  initiated,  if  there  is  concern  that  such 
evidence might not be available later or only obtainable with great difficulty. In Italy, 
Lithuania, Luxembourg and Slovenia, one can secure evidence if there is a risk that 
by the time proceedings have started, the witness concerned has died or the place or 
thing  to  be  inspected  has  altered.  In  Spain,  if  there  are  reasonable  grounds  for 
believing that evidence may no longer be available at the time of the trial, an early 
assessment  of  the  evidence  may  be  sought.  If such early assessment is granted, the 
claimant has then to serve its claim within two months; otherwise the evidence will 
cease to be valid. This provision seems to allow for measures to be taken even before 
the action is filed. 

Finally,  Directive  on  the  enforcement  of  intellectual  property  rights38  also  contains 
measures for preserving evidence. Article 7 of that Directive requires Member States 
to  ensure  that  a  court  may  order  prompt  and  effective  provisional  measures  to 
preserve  relevant  evidence  in  respect  of  the  alleged  infringement,  subject  to  the 
protection of confidential information. The court may do so on application by a party 
who  has  presented  reasonably  available  evidence  to  support  a  claim  that  their 
intellectual property rights have been infringed, even before the proceedings on the 
merits of the case have started. 

3. Witnesses in court 

a. Summoning of witnesses to give evidence before the court 

68. 

37 

38 
39 

there  are 

jurisdictions 

limitations  on  calling  parties  and 

In  several 
their 
representatives as witnesses. These limitations can constitute an obstacle to obtaining 
evidence, especially in antitrust cases where the statements of the representatives of 
the  companies  involved  can  provide  significant  and  important  information.  In  nine 
EU jurisdictions, neither parties nor their representatives may be called as witnesses 
as such, although most of these jurisdictions provide for the possibility for parties to 
make  statements.39  In  practically  all  Member  States  people  subject  to  professional 

E.g. US discovery procedures are reinforced by a maximum jail sentence of five years for contempt of 
court,  for  the  non-production  or  destruction  of  documents  (Rule  37  of  the  Federal  Rules  of  Civil 
Procedure). 
As note 26 above. 
Parties  may  not  be  called  as  witnesses  in  the  Czech  Republic, Germany,  Estonia, Italy,  Luxembourg, 
Hungary,  Portugal,  Slovakia  and  Sweden.  However,  in  Sweden,  parties  can  be  called  to  give  a 
statement as a party and in the Czech Republic, Germany, Estonia, Portugal and Slovakia, parties can 
submit statements. 

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22 

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secrecy and (close) relatives of the parties may refuse or are even under a duty not to 
testify. Finally, in some jurisdictions witness statements cannot take written form.40 

b. Examination and cross-examination of witnesses in court 

69. 

70. 

71. 

72. 

Examination is the questioning of a witness in court. There are three possible stages 
of examination. Examination in chief is the examination of a witness by a party who 
has called him. This first stage is normally followed by cross-examination, which is 
the questioning of a witness by a party other than the one that called him to testify. 
Cross-examination is usually made with the objective of diminishing the effect of the 
evidence of the witness. The third possible stage is re-examination, this is the further 
examination of the witness by the party who called him, with a view to explaining or 
contradicting any false impression arising from the cross-examination. 

Examination will be particularly important in establishing facts where documentary 
evidence is not available or in establishing the truth where facts are in dispute. In the 
common law countries, cross-examination appears to carry particular importance in 
court  proceedings.  Cross-examination  makes it possible to check the reliability and 
accuracy of the evidence of a witness. In competition cases, cross examination is thus 
said  to  be  a  useful  tool  in  cases  where  there  are  major  factual  disputes,  e.g.  in  the 
case of cartels.41 

In  most  Member  States  some  form  of  cross-examination  is  permitted.42  Cross-
examination  by  the  parties  is  not  available  in  four  countries,  namely  Belgium, 
France, Italy and Luxembourg. However, even in these four countries the parties may 
request the judge to put questions to the witnesses. In Italy, these questions must be 
submitted in advance. In this system the parties themselves are thus not afforded the 
possibility to check the veracity of witness statements as is possible in direct cross-
examination. 

It should also be noted that most of the countries that allow direct cross-examination 
have  also  built  in  mechanisms  to  protect  the  witness.  For  example,  in  the  Czech 
Republic,  Germany,  Greece,  Austria  and  Slovakia,  the  judge  will  first  question  the 
witness to ensure an opportunity to give a complete and coherent statement.43 Also in 
the  cross-examination  a  judge  can  dismiss  questions  which  he  considers  to  be 
irrelevant  for  the  case  or  confusing.  The  possibility  of  re-examination  also  allows 
rectification of any false impression arising from the cross-examination. 

40 

41 
42 

43 

That is the case in Estonia, Finland, Italy, Portugal, Slovenia and Sweden. In Slovenia, such a written 
statement would not be considered as a “witness statement”, but as another form of evidence, which is 
also permissible as there are no limitations concerning the form of evidence. 
See the Comparative Report, page 66 and following. 
Although German law does not exclude it, it would appear that in practice, cross-examination does not 
happen very often. In Lithuania, cross-examination is also not used in practice.  
See the Comparative Report, page 68. 

EN 

23 

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4. Access to documents held by the Commission or by national competition authorities 

a. Access under the rules concerning administrative openness  

73. 

74. 

Most, if not all Member States have rules concerning the administrative openness of 
their institutions. For the European Union, that principle of transparency is laid down 
in  Article  255  EC,  which  allows  EU  citizens  and  those  residing  in  the  EU  to  have 
access  to  the  documents  of  the  European  Parliament,  the  Council  and  the 
Commission.  The  principles,  conditions  and  limits  of  this  access  have  been  laid 
down  in  Regulation  1049/2001.44  The  main  purpose  of  this  Regulation  is,  in  the 
words  of  its  third  recital,  to  improve  “the  transparency  of  the  decision-making 
process” of EU institutions. The Regulation is part of an effort to increase openness 
and accountability of the work of the EU institutions. Persons making an application 
for access to documents under this Regulation do not have to give reasons for their 
request45 and any document which has been released following an application enters 
into the public domain. 

Although  the  interest  of  the  applicant  is  not  relevant  for  the  purpose  of  assessing 
whether or not a document should be disclosed,46 the protection of private interests in 
claiming damages is clearly not the objective of this Regulation. Therefore, it might 
be  appropriate  to  create  a  specific  right  for  private  litigants  to  obtain  directly  from 
the  other  parties  in  the  private  litigation  the  information  they  supplied  to  the 
Commission or to a national competition authority. 

b.  Access  by  national  courts  under  the  duty  of  loyal  co-operation  between  the 

Commission and the Member States  

75. 

The  access  to  documents  held  by  the  Commission  follows  different  rules  where  a 
national  court  makes  the  request.  The  basic  rule  for  the  co-operation  of  the 
Commission  with  the  national  courts  is  based  on  the  duty  of  loyal  co-operation 
between  the  Commission  and  the  Member  States  as  laid  down  in  Article  10  EC  as 
interpreted by the Community Courts.47 The issue is specifically addressed in Article 
15(1)  of  Regulation  1/2003  which  stipulates  that  national  courts  in  proceedings  for 
the application of Article 81 or 82 EC “may ask the Commission to transmit to them 
information  in  its  possession”.  The  Commission’s accompanying  Notice  on the co-
operation  between  the  Commission  and  the  courts  of  the  EU  Member  States  in  the 
application of Articles 81 and 82 EC contains a specific section on the Commission’s 
duty to transmit information to national courts.48  

76. 

When  transmitting  information  to  national  courts,  the  Commission  is  under  an 
obligation  to  uphold  the  guarantees  given  to  natural  and  legal  persons  by 
Article 287 EC.  This  Treaty  provision  obliges  all  staff  of  the  Commission  not  to 

44 

45 
46 

47 

48 

Regulation  1049/2001  regarding  public  access  to  European  Parliament,  Council  and  Commission 
documents, OJ 2001 L 145/43. 
Article 6(1) Regulation 1049/2001. 
Joined cases T-110/03, T-150/03 and T-405/03 Jose Maria Sison v Council, judgment of 26 April 2005, 
not yet reported, para 55. 
See case T-353/94 Postbank v Commission [1996] ECR II-921 for an application of the duty of loyal 
co-operation between the Commission and national courts in a competition case. 
Commission  Notice  on  the  co-operation  between  the  Commission  and  the  courts  of  the  EU  Member 
States in the application of Articles 81 and 82 EC, OJ 2004 C 101/54, paragraphs 21 to 26. 

EN 

24 

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disclose information covered by the obligation of professional secrecy. Article 28(2) 
of Regulation 1/2003 repeats this obligation and extends it to officials of the Member 
States.  The  obligation  of  professional  secrecy  mainly  seeks  to  protect  business 
secrets and other confidential information. When transmitting such information to a 
national  court,  that  protection  becomes  a  matter  for  that  court.  The  Commission, 
however,  has  to  take  the  necessary  precautions  to  protect  the  business  secrets  and 
other confidential information. Such precautions include, in particular, informing the 
national court of the documents or parts of documents which contain business secrets 
or other confidential information. It also implies that prior to transmitting documents 
which contain business secrets or other confidential information to a national court, 
the  Commission  has  to  make  sure  that  the  national  court  will  guarantee  the 
confidentiality of those documents. In the “exceptional cases” that the court cannot 
provide such a guarantee, the Commission must refuse the transmission.49  

77. 

Apart  from  this  ultimate  protection  of  business  secrets  and  other  confidential 
information,  the  Commission  can  also  refuse  to  transmit  information  to  national 
courts  for  overriding  reasons  relating  to  the  need  to  safeguard  the  interests  of  the 
Community  or  to  avoid  any  interference  with  its  functioning  and  independence,  in 
particular  by  jeopardising  the  accomplishment  of  the  tasks  entrusted  to  it.50  On  the 
basis of this exception, the Commission announced in its notice on co-operation with 
national  courts  that  it  will  only  transmit  to  national  courts  information  voluntarily 
submitted by a leniency applicant with the latter’s consent.51  

B. 

ALLEVIATING THE CLAIMANT’S EVIDENTIARY BURDEN OF PROOF 

1. The burden and the standard of proof 

78. 

79. 

The normal rule under the national laws of the Member States is that the burden of 
proving all elements of the claim rests on the claimant. This means that the claimant 
in  all  cases  has  to  prove  the  infringement,  the  causal  connection  between 
infringement  and  damage,  and  the  quantum  of  damages.  The  burden  of  proving  a 
defence to an action rests on the defendant. As a matter of Community law, Article 2 
of Regulation 1/2003 states these rules for actions based on EC antitrust rules. 

Article 2 of Regulation 1/2003, however, does not regulate the standard of proof. The 
standard of proof thus remains regulated by national laws. The civil law jurisdictions 
tend to operate with a test such as the need for the claimant to “win the conviction” 
of the judge.52 In the common law jurisdictions, on the other hand, the test tends to 
be  a  “balance  of  probabilities”  test  for  the  establishment  of  the  conditions  of 
violation under Articles 81 and 82 EC.53 In the individual case there may not be any 
significant  difference  between  these  two  tests,  since  the  judge  may  require  being 
convinced that one explanation is more likely than the other. 

49 
50 
51 
52 

53 

Case C-2/88 Zwartveld [1990] ECR I-3365, paras 10 and 11 and Postbank, as note 47 above, para 93. 
Ibidem and case C-275/00 First and Franex [2002] ECR I-10943, para 49. 
Paragraph 26 of the Notice, as note 48 above. 
This appears to be the case for example in Germany, Estonia, Spain, France, Italy, Latvia, Luxembourg, 
Hungary, the Netherlands, and Portugal. 
This is the test used in Cyprus, Ireland, Malta and the UK. 

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80. 

The standard of proof as put forward in the above-mentioned ALI/UNIDROIT draft 
Principles of Transnational Civil Procedure54 bridges the civil law and common law 
jurisdictions  by  stating  that  “[f]acts  are  considered  proven  when  the  court  is 
reasonably  convinced  of  their  truth.”55  This  test  adopts  the  civil  law  test  of  the 
subjective conviction of the court and incorporates some element of the common law 
probabilities test through the use of a reasonableness test. 

2.  Alleviating  the  claimant’s  burden  of  proving  the  infringement  in  case  of  information 

asymmetry 

81. 

82. 

Information  asymmetry  exists  when  one  party  (usually  the  defendant)  has  in  its 
control or has access to more evidence relating to a given claim than the (potential) 
claimant. There are indications both in national law and under Community law that 
in  case  of  information  asymmetry,  the  claimant’s  burden  of  proving  the  antitrust 
infringement is being alleviated.  

law, 

20(5) 

Gesetz 

Section 

German 

competition 

gegen 
In 
Wettbewerbsbeschränkungen  (“GWB”)  alleviates  the  claimant’s  evidentiary  burden 
in abuse actions brought by SMEs. Where the claimant is able to establish a prima 
facie  case,  the  defendant  is  required  to  clarify  those  issues  relating  to  its  field  of 
business which cannot be clarified by the claimant, but which can be easily clarified, 
and  may  reasonably  be  expected  to  be  clarified,  by  the  defendant.  Similarly,  under 
Austrian  civil  procedural  rules,  it  is  sufficient  for  the  claimant  to  bring  some  basic 
evidence relating to an issue within the defendant’s sphere of control. The latter then 
bears the burden of rebutting this evidence.56  

83. 

The alleviation of the claimant’s evidentiary burden was also addressed by the ECJ 
in the Aalborg Portland judgment. After having paraphrased Article 2 of Regulation 
1/2003, the Court continued that  

“although according to those principles the legal burden of proof is borne either by 
the Commission or the undertaking or association concerned, the factual evidence on 
which a party relies may be of such a kind as to require the other party to provide an 
explanation  or  justification,  failing  which  it  is  permissible  to  conclude  that  the 
burden of proof has been discharged.”57 

It is arguable that the case presented in situations of information asymmetry by the 
claimant,  e.g.  information  on  price  and  commercial  strategy,  would  be  covered  as 
“factual  evidence  (…)  of  such  a  kind”.  As  a  result,  in  situations  of  information 
asymmetry,  it  would  be  sufficient  for  the  claimant  to  present  facts  which  may 
constitute  evidence  of  an  infringement  of  the  EC  competition  rules.  The  burden 
would then be on the defendant to adduce the necessary explanations or justifications 

As note 28 above. 
Principle  21.2.  The  comment  to  the  text  (comment  P-21B)  states:  “The  standard  of  ‘reasonably 
convinced’  is  in  substance  that  applied  in  most  legal  systems.  The  standard  in  the  United  States  and 
some other countries is ‘preponderance of the evidence’ but functionally that is essentially the same”. 
See Oberster Gerichtshof (OGH) of 16 December 2002, 16 Ok 11/02 on the application of this rule in a 
predatory pricing case. 
Joined cases C-204/00, C-205/00, C-211/00, C-213/00, C-217/00 and C-219/00 Aalborg Portland and 
others v Commission [2004] ECR I-123, para 79. 

84. 

54 
55 

56 

57 

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26 

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to  proof  that  those  facts  do  not  constitute  an  infringement  of  the  EC  competition 
rules. 

3. Alleviating the claimant’s burden of proving the infringement in case of a prior decision 

of a national competition authority 

85. 

86. 

87. 

According  to  Article  16(1)  of  Regulation  1/2003  “[w]hen  national  courts  rule  on 
agreements,  decisions  or  practices  under  Article  81  or  Article  82  EC  which  are 
already  the  subject  of  a  Commission  decision,  they  cannot  take  decisions  running 
counter  to  the  decision  adopted  by  the  Commission.”58  That  means  that  in  a 
subsequent  proceeding  before  a  national  court,  a  claimant  can  rely  on  the 
Commission’s infringement decision in relation to the same behaviour as proof of the 
infringement. 

Some  national  provisions  have  extended  this  principle  to  decisions  of  national 
competition authorities. In Germany, Section 33(4) GWB provides that in actions for 
damages  for  breach  of  EC  or  national  competition  law,  the  court  is  bound  by  the 
finding of an infringement by the Commission or by a national competition authority, 
be  it  the  German  competition  authority  or  the  competition  authority  of  another 
Member State. It also provides that the court is similarly bound by a decision of the 
court  of  another  Member  State  in  so  far  as  that  court  has  the  function  to  issue  a 
finding  of  an  infringement  in  the  capacity  of  public  enforcer  or  to  decide  on  an 
appeal against an administrative decision.  

Similarly,  in  damages  proceedings  before  the  UK  ordinary  courts  or  before  the 
Competition  Appeals  Tribunal  (CAT),  the  court/tribunal  is  bound  by  a  European 
Commission  infringement  decision,  or  by  a  decision  of  the  Office  of  Fair  Trading 
(OFT, the UK competition authority) that either national or Community competition 
law has been violated, or by a decision of the CAT on appeal from a decision of the 
OFT to either of these two effects.59  

4. Evidentiary consequences of a refusal to disclose evidence 

88. 

The  weight  to  be  given  to  restrictions  on  access  to  evidence  placed  by  one  of  the 
parties in the way of the other appears to vary as between Member States. In some 
Member States, the refusal to disclose evidence appears to be taken as proof of the 
alleged facts relating to those documents.60 In other Member States, where one party 
makes  it  impossible  for  the  other  to  prove  a  fact,  the  burden  of  proof  is  explicitly 
reversed.61 This is only the case where access to evidence is made impossible, not if 
such  access  is  merely  made  more  difficult.  In  a  last  group  of  Member  States,  the 
refusal to disclose would not in itself  be  sufficient to establish proof of  the alleged 

58 
59 

60 

61 

See also case C-344/98 Masterfoods [2000] ECR I-11369, para 52. 
Sections 18 and 20 of the Enterprise Act 2002, inserted as sections 47A and 58A respectively into the 
Competition Act 1998. 
This appears to be so in Latvia and it is the prevailing view among experts that this is also the case in 
Germany (see page 64 of the Comparative Report). The German national report (page 10) states only 
that if one party makes it impossible for the other party to prove a fact, then the court may alleviate the 
burden of proof or shift it away from the obstructed party. 
See e.g. Article 344 of the Portuguese Civil Code. 

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facts  but  the  judge  would  require  further  persuasion  on  the  point.62  In  such  a 
situation, the refusal to produce documents will be taken into account by the judge in 
his evaluation of the evidence63 and when determining whether the burden of proof 
has been discharged.64 

C. 

POLICY OPTIONS 

1. Options in relation to disclosure of documentary evidence 

89. 

Claimants may fail to bring a successful action for damages because they are not able 
to give sufficient evidence of (one of) the constituent elements of a damages claim. 
When  that  evidence  is  in  the  possession  of  someone  else,  be  it  the  defendant  or  a 
third  party,  one  may  consider  allowing  the  claimant  access  to  that  evidence.  In 
designing  a  system  allowing  for  such  access,  one  should  carefully  assess  the 
proportionality  of  any  such  option.  Paragraphs  90  to  92  present  a  gradation  of 
options for disclosure of documentary evidence. They describe a form of disclosure 
between the parties to an antitrust damages claim, but all options should also be read 
as  extending  to  disclosure  of  documents  which  lie  in  the  control  of  a  third  party. 
Paragraph  93  contains  an  option  of  effective  sanctioning  for  the  destruction  of 
evidence, whereas paragraph 94 presents an option aimed at preserving the evidence. 

Option 1: The disclosure of relevant and reasonably identified evidence by court order 

90. 

Most  Member  States  already  have  rules  governing  the  production  by  parties  of 
specified  documents  during  the  trial.  It  might  be  appropriate  to  have  all  Member 
States  introducing  some  form  of  disclosure.  Once  a  party  has  set  out  in  detail  the 
relevant facts of the case and has presented reasonably available evidence in support 
of its allegations (fact pleading), a court should be able to determine the scope and 
relevancy of any further information sought which lies in the control of the adverse 
party and order the disclosure of that information. This limited form of court ordered 
disclosure  of  relevant  and  reasonably  identified  individual  documents  would  avoid 
excessively broad disclosure.  

Option 2: Mandatory disclosure for classes of documents by court order 

91. 

Consideration  could  be  given  to  extending  the  existing  disclosure  rules  by 
introducing, subject to fact pleading, a mandatory disclosure requirement for classes 
of documents between the parties, under some form of supervision of the court.  

Option 3: An obligation to provide parties with a list of accessible documents  

62 

63 
64 

E.g.  in  France,  Italy,  Hungary  and  Denmark.  For  the  latter,  see  the  Administration  of  Justice  Act 
Section  344(2)  and  (3).  The  Danish  national  report  does  not  refer  specifically  to  refusal  to  produce 
evidence, but to a failure by a party to “fulfil his obligation to give information or to follow the court’s 
request e.g. for further and better particulars”. This would appear to cover failure to produce evidence 
when requested to do so by the court. 
See the Polish national report, page 8. 
Article 217(6) of the Spanish Civil Procedure Law refers to the ease of access to the relevant evidence 
of the party bearing the burden of proof (see the Spanish national report at page 9). 

EN 

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92. 

Under this option a party would, subject to fact pleading, be obliged to serve on all 
other  parties  a  list  of  relevant  documents  in  his  possession.  Unless  the  court  is 
satisfied that disclosure would cause undue harm to the one who serves the list, all 
documents on the list would be accessible for the parties to the case. 

Option 4: Sanctions for destruction of evidence 

93. 

One could provide for sanctions for the destruction of evidence following the start of 
legal  proceedings  or  in  anticipation  of  legal  proceedings.  There  could  be  provision 
for  monetary  or  criminal  sanctions  and/or  procedural  consequences,  such  as,  with 
regard to the claimant, the striking out of the statement of claim or, with regard to the 
defendant, the striking out of the defence. 

Option 5: Preservation of evidence 

94. 

Courts  could  be  allowed  to  order  prompt  and  effective  provisional  measures  to 
preserve  relevant  evidence  in  respect  of  the  alleged  infringement.  In  order  to  make 
this  possibility  effective  and  proportional,  a  party  should  be  able  to  ask  a  court  for 
such an order even before the commencement of proceedings on the merits of a case. 
That party should, however, present reasonably available evidence to support a prima 
facie infringement case. 

2.  Options  in  relation  to  access  to  documents  held  by  the  Commission  or  by  a  national 

competition authority 

Option  6:  Access  to  documents  submitted  by  litigants  to  the  Commission  or  to  a  national 
competition authority 

95. 

It should be considered whether to give the litigant the right to request other parties 
to  the  procedure  to  let  it  have  a  copy  of  all  documents  handed  over  to  the 
Commission or to a national competition authority in the course of the administrative 
procedure, with the exception of any leniency application, business secrets or other 
confidential  information.  Issues  relating  to  disclosure  of  business  secrets  and  other 
confidential  information  as  well  as  rights  of  the  defence  would  be  addressed  under 
the law of the forum. 

Option 7: Access by the national court to documents held by the Commission 

96. 

Under the case law of the Community courts, the Commission is required to transmit 
to national courts all information they ask for. However, the Commission can refuse 
to  send  information  for  overriding  reasons  relating  to  the  need  to  safeguard  the 
interests  of  the  Community  or  to  avoid  any  interference  with  its  functioning  and 
independence. The Commission is also barred from sending confidential information 
to  a  national  court  that  cannot  guarantee  the  confidential  treatment  of  that 
information.  Taking  these  constraints  into  account,  the  Commission  would  like  to 
foster  the  co-operation  with  national  courts  and  thus  invites  feedback  from 
stakeholders on how to ensure the usefulness of  this co-operation.  Feedback  would 
be  particularly  welcome  on  (a)  how  national  courts  consider  they  are  able  to 
guarantee  the  confidentiality  of  business  secrets  or  other  confidential  information, 
and  (b)  on  the  situations  in  which  national  courts  would  ask  the  Commission  for 
information that also parties could provide.  

EN 

29 

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3. Options in relation to the alleviation of the claimant’s evidentiary burden of proving the 

antitrust infringement  

97. 

Each  of  the  following  options  could  alleviate  the  claimant’s  evidentiary  burden  of 
proving  the  competition  law  infringement.  The  option  dealt  with  in  the  next 
paragraph aims at assisting the claimant in follow-on actions, whereas the options in 
the following paragraphs are particularly useful in stand-alone actions. Although the 
latter  options  would  each  of  their  own  merits  contribute  to  an  alleviation  of  the 
claimant’s burden of proving the antitrust infringement, a combination of both would 
be most effective in helping the claimant discharge his burden of proof. 

Option 8: The evidential value of an infringement decision of a national competition authority 

98. 

A prior infringement decision of a national competition authority, whether domestic 
or of another EU Member State, or of its review court, could be used to alleviate the 
claimant’s  burden  of  proving  the  infringement.  A  first  option  would  be  that  such  a 
prior decision shifts the burden of proving the absence of an infringement  onto the 
defendant. A further option would be to make this infringement decision binding on 
the civil court. 

Option  9:  Shifting  the  burden  of  proving  the  infringement  in  situations  of  information 
asymmetry 

99. 

It could be considered whether to shift the burden or, as the case may be, to lower the 
standard  of  proving  the  infringement  where  there  is  information  asymmetry  as 
between claimant and defendant. For example, once the claimant has made a prima 
facie  case  for  an  infringement,  it  would  be  up  to  the  defendant  to  explain  and  if 
necessary, justify issues relating to evidence within his control. 

Option 10: Evidentiary consequences of an unjustified refusal to disclose evidence 

100. 

There  are  three  options  in  relation  to  this  issue:  the  unjustified  refusal  to  disclose 
evidence (a) equates to proof of the facts alleged (irrebuttable presumption), (b) leads 
to a reversal of the burden of proof (rebuttable presumption), and (c) it can be taken 
into account by the judge to some extent in his evaluation of the evidence. 

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30 

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SECTION III: FAULT REQUIREMENT 

A. 

INTRODUCTION 

101.  Member States take diverse approaches as to the interaction between competition law 
and the general rules of liability, in particular on the question of fault. A first group 
of Member States does not require any fault element whatsoever for a damages claim 
based  on  the  infringement  of  competition  law,  or  provide  that  the  infringement 
constitutes,  on  its  own,  the  fault.  In  these  countries  fault  does  not  need  to  be 
proven.65 A second group of States appears to require fault in addition to illegality, 
but  fault  is  presumed  (rebuttably  or  irrebuttably)  if  illegality  is  shown.  Therefore, 
these  legal  systems  seem  to  facilitate  private  enforcement  of  competition  law  since 
fault does not present a hurdle to the claimant in these countries.66  

102. 

Hence in the majority (18 out of 25) of Member States the fault requirement does not 
form  an  obstacle  to  private  enforcement  of  competition  law.  The  remaining  seven 
countries  (Denmark,  Greece,  Spain,  Poland,  Portugal,  Finland  and  Sweden)  all 
appear  to  require  fault  either  in  relation  to  the  infringement  or  in  relation  to  the 
effects  of  the  infringement.  Therefore,  fault  is  an  additional  obstacle  in  these 
countries for any damages action.  

103.  Where  the  legal  system  requires  an  element  of  fault  for  a  damages  action,  there  is 
usually a distinction between intention and negligence. In all countries where fault is 
a  precondition  to  liability,  negligence  will  suffice.67  Negligence  exists  where 
undertakings  fail  to  exercise  the  requisite  degree  of  care.  In  this  respect  the 
terminology used vary between Member States.  

104. 

In EC competition law, there is no requirement of fault to show that there has been a 
violation  of  Article  81  or  82  EC.  In  the  case  of  Article  81  EC,  this  flows  as  much 
from  the  text  of  the  provision  itself  (which  condemns  agreements  having  the 
“object”  or  “effect”  of  restricting  competition)  as  from  the  case  law  of  the 
Community  courts.  In  the  case  of  Article  82  EC,  the  case  law  makes  it  clear  that 
abuse  is  an  objective  concept.68  Under  Article 23  of  Regulation  1/2003,  the 
Commission may impose fines on undertakings or associations of undertakings only 
where they acted intentionally or negligently. However, it must be recalled that the 
provisions  and  case  law  are  only  relevant  for  the  imposition  of  fines  by  a  public 
authority (and not for the finding of the infringement). The question remains to what 
extent these provisions and case law can be applied mutatis mutandis to the awarding 
of damages for violation of the EC antitrust rules. 

105. 

In the field of damages claims based on violations by Member States of their Treaty 
obligations (liability of public authorities) the ECJ specified in Brasserie du Pêcheur 

65 
66 

67 

68 

The Czech Republic, Ireland, Cyprus, Slovakia and the UK belong to this group. 
Belgium,  Germany,  Estonia,  France,  Italy,  Latvia,  Lithuania,  Luxembourg,  Hungary,  Malta,  the 
Netherlands, Austria and Slovenia belong to this group. 
Some countries make further distinctions between degrees of negligence or vary penalties according to 
the degree of fault, see the Comparative Report, page 52.  
See e.g. case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461. 

EN 

31 

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that Community law confers a right to claim for compensation if three conditions are 
met: the rule of law  infringed must be  intended to confer rights on individuals; the 
breach must be sufficiently serious;69 and there must be a direct causal link between 
the  breach  of  the  obligation  resting  on  the  State  and  the  damage  sustained  by  the 
injured parties.70 The ECJ held further that  

“the obligation to make reparation for loss or damage caused to individuals cannot, 
however, depend upon a condition based on any concept of fault going beyond that 
of  a  sufficiently  serious  breach  of  Community  law.  Imposition  of  such  a 
supplementary  condition  would  be  tantamount  to  calling  in  question  the  right  to 
reparation founded on the Community legal order.”71  

A sufficiently serious breach of Community law is a prerequisite for liability of acts 
of  public  authorities.  But  if  that  public  authority  has  acted  with  only  considerably 
reduced, or even no, discretion, like all private undertakings, the mere infringement 
of  Community  rules  may  suffice  to  establish  this  sufficiently  serious  breach 
according to the Camar judgment.72  

Breach  of  EC  competition  law,  which  belongs  to  the  public  order,73  is  a  serious 
breach  of  law  which  can  have  significant  negative  effects  on  the  internal  market. 
Consideration  should  therefore  be  given  to  the  question  of  whether  or  not  a  fault 
requirement separate from the proof of the infringement is needed.  

A comparable approach was taken with the Product Liability Directive.74 Under this 
Directive a producer is liable for any damage caused by its products irrespective of 
the existence of fault with possible defences (inter alia) laid down in Article 7 (b) and 
(e) of the Directive. The absence of a fault requirement in the Directive was based on 
risk creation and on information asymmetry. In product liability law information on 
the  production  process  is  extremely  difficult  for  the  claimant  to  adduce.  This 
reasoning can by analogy be applied to antitrust cases, for example to information on 
price and commercial strategy. A competitor of the tortfeasor usually has no insight 
into  the  relevant  documents  and  every  infringement  of  Art.  81  and  82  EC  likewise 
may create a risk for competition.  

106. 

107. 

108. 

69 

70 
71 
72 
73 
74 

According  to  the  ECJ  a  breach  of  Community  law  is  sufficiently  serious  if  the  Member  State  or  the 
Community institution concerned manifestly and gravely disregarded the limits on its discretion. In this 
context the competent court may take into consideration the clarity and precision of the rule breached, 
the  measure  of  discretion  left  by  that  rule  to  the  national  or  Community  authorities,  whether  the 
infringement  and  the  damage  caused  was  intentional  or  involuntary,  whether  any  error  of  law  was 
excusable  or  inexcusable,  the  fact  that  the  position  taken  by  a  Community  institution  may  have 
contributed  towards  the  omission,  and  the  adoption  or  retention  of  national  measures  or  practices 
contrary to Community law, see Brasserie du Pêcheur, as note 7 above, at para 55 et seq. 
Brasserie du Pêcheur, as note 7 above, para 51. 
Brasserie du Pêcheur, as note 7 above, para 79. 
Case C-312/00 Commission v Camar and Tico [2002] ECR I-11355, para 54. 
See Eco Swiss, as note 17 above, paras 23 and 25. 
Directive  85/374  on  the  approximation  of  the  laws,  regulations  and  administrative  provisions  of  the 
Member States concerning liability for defective products, OJ 1985 L 210/29. 

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32 

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B. 

POLICY OPTIONS 

Option 11: Liability based on the infringement itself 

109. 

One  option  to  facilitate  private  damages  actions  would  be  to  remove  fault  as  a 
condition  of  liability  for  a  breach  of  competition  law  or  to  consider  that  the 
infringement constitutes on its own the fault as it is currently the case in five Member 
States  or  to  introduce  an  irrebuttable  presumption  of  fault.  In  this  case  illegality 
(violation of competition rules) would suffice for non-contractual liability. It can be 
argued that such an approach would be in line with the existing case law of the ECJ. 
Given  the  serious  consequences  of  an  infringement  of  competition  law,  a  system 
where the infringement would constitute by itself a fault, would appear justified. 

Option  12:  Liability  based  on  the  infringement  itself  in  relation  to  the  most  serious 
infringements 

110. 

Another  option  would  be  to  confine  the  system  whereby  the  infringement  would 
constitute by itself a fault to so-called hard core violations. In non clear cut cases it is 
questionable  whether  undertakings  should  be  held  liable  in  the  absence  of  any 
intention or negligence.  

Option 13: Defence of excusable error where illegality is shown 

111. 

A  third  option  could  be  to  presume  fault  where  a  violation  of  competition  law  is 
shown  but  there  would  be  a  possibility  for  the  defendant  to  introduce  a  defence  of 
excusable  error  of  law  or  fact.  While  the  ruling  of  infringement  would  still  stand 
against the defendant, there would be no liability for damages in those cases where 
he had, in good faith, acted on the basis that his conduct was in compliance with the 
law.  Such  a  defence  would  of  course  implicate  a  lower  degree  of  certainty  for  the 
claimant  than  an  irrebuttable  presumption  and  would  result  in  some  cases  where 
injured parties do not receive compensation for injuries arising from an infringement 
of competition law. These negative aspects could, to a certain extent, be negated by 
requiring that the standard of care for undertakings be set at a high level. 

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33 

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SECTION IV: DAMAGES 

A. 

INTRODUCTION 

112. 

113. 

Damages  are  traditionally  considered  to  compensate  a  victim  for  the  loss  suffered 
because  of  an  antitrust  infringement.  It  seems,  however,  that  pure  compensation  of 
the  loss  does  not  always  constitute  a  sufficient  incentive  for  antitrust  claimants  to 
bring a case before the court. As a result, thought should be given to other methods 
of  approaching  damages.  Paragraphs  114  to  124  present  different  approaches  that 
Member States have taken to calculate the basis of the damage in a way that makes it 
more  attractive  for  claimants  to  file  a  damages  claim.  In  doing  so,  the  award  may 
have as its purpose not only the compensation of the victim’s individual loss but also 
the recovery of benefits gained by the defendant as a consequence of the tortious act. 
In  addition,  some  Member  States  pursue  beyond  the  mere  deterrent  effect  of 
compensation, a distinct aim of punishing or deterring the wrongdoer by the grant of 
punitive or exemplary damages. 

Apart  from  defining  the  basis  of  the  damage,  difficulties  often  arise  with  regard  to 
the  calculation  of  damages.  Paragraphs  125  to  144  focus  on  different  methods  of 
quantification,  showing  both  various  models  for  the  calculation  of  damages  and  a 
more equity based approach. Independent from the quantification method chosen, the 
risk  remains  that  the  mere  fact  that  damages  have  to  be  quantified  may  serve  as  a 
disincentive  for  potential  claimants.  The  final  paragraphs  145  and  145  therefore 
consider  a  procedural  alternative  by  splitting  the  finding  of  the  liability  from  the 
calculation and the award of the exact quantum of damages. 

B. 

ELEMENTS RELEVANT TO THE DEFINITION OF DAMAGE 

1. Compensation 

114. 

Compensation  is  the  grant  of  an  equivalent  in  kind  or  in  money  for  the  harm 
suffered. It differs from restitution, that aims at putting the victim in the situation he 
was in prior to the infringement. In some Member States compensation may only be 
given where full restitution is impossible or excessively difficult. 

2. Recovery of illegal gain 

115. 

Alternatively,  the  action  can  be  structured  as  an  action  for  recovery  of  illegal  gain 
made  by  the  infringer  as  a  result  of  the  infringement.  In  this  case,  the  claimant’s 
claim is not for subjective loss suffered, but for the illegal gain that the defendant has 
made  from  the  infringement.  Where  the  illegal  gain  made  by  the  infringer  exceeds 
the  loss  of  the  claimant,  using  the  former  as  a  basis  for  calculating  the  damage  is 
more  advantageous  to  the  claimant  than  pure  compensation.  The  German 
competition  law  contains  an  example  of  this  approach  by  allowing  the  national 
competition  authority (Bundeskartellamt) to order an  undertaking that infringed the 

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34 

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competition rules to pay an amount that corresponds to the gain made as a result of 
the antitrust infringement.75 

3. Exemplary or punitive damages 

116. 

Exemplary or punitive damages are damages awarded by way of punishment of the 
defendant for breach of the law and in order to deter repetition of wrongful conduct. 
The  punitive  element  of  a  damages  award  can  be  viewed  in  part  as  simply 
compensating  for  aspects  of  real  damage  that  are  difficult  to  estimate.  But  usually, 
punitive  damages  deliberately  go  beyond  compensation  in  order  to  achieve  more 
deterrence or other policy goals. 

117. 

In Brasserie du Pêcheur, the Court of Justice held that 

“[i]n  the  absence  of  relevant  Community  provisions,  it  is  for  the  domestic  legal 
system  of  each  Member  State  to  set  the  criteria  for  determining  the  extent  of 
reparation. However, those criteria must not be less favourable than those applying 
to  similar  claims  or  actions  based  on  domestic  law  and  must  not  be  such  as  in 
practice to make it impossible or excessively difficult to obtain reparation. National 
legislation which generally limits the damage for which reparation may be granted 
to  damage  done  to  certain,  specifically  protected  individual  interests  not  including 
loss of profit by individuals is not compatible with Community law. Moreover, it must 
be possible to award specific damages, such as the exemplary damages provided for 
by English law, pursuant to claims for damages founded on Community law, if such 
damages may be awarded pursuant to similar claims or actions founded on domestic 
law”.76 

Therefore,  if  domestic  law  allows  for  exemplary  damages  for  actions  similar  to 
damages  actions  for  beach  of  the  competition  rules,  it  should  also  be  possible  to 
award exemplary damages for the latter actions.  

118. 

In England, case law has established categories for determining which claims allow 
for the award of exemplary damages. One of these categories is “wrongful conduct 
which has been calculated by the defendant to make a profit for himself which may 
well  exceed  the  compensation  payable  to  the  claimant”.77  An  action  for  breach  of 
competition  law  is  considered  to  fall  into  this  category  in  extreme  cases,  such  as 
where  there  was  evidence  that  the  defendant  had  calculated  that  his  illegal  profit 
would outweigh any damages awarded against him.78 

119. 

In  Ireland,  exemplary  damages  are  available  in  actions  for  breach  of  national 
competition  law.79  In  accordance  with  the  principle  of  equivalence,  exemplary 
damages should thus also be available to a claimant in an action concerning a breach 
of Article 81 or 82 EC. Exemplary damages may be awarded where there has been a 

75 
76 
77 

78 

79 

Section 34 GWB. 
Brasserie du Pêcheur, as note 7 above, para 90. 
Lord  Devlin  in  Rookes  v  Barnard  [1964]  AC  1129.  See  also  Broome  v  Cassell  [1972]  AC  1027  and 
Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29. 
See e.g. B. Rodger, Private Enforcement and the Enterprise Act: An Exemplary System of Awarding 
Damages, [2003] ECLR 103. 
Section 14(5) of the Competition Act. 

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120. 

121. 

conscious  and  deliberate  violation  of  rights  or  where  the  court  is  satisfied  that  the 
wrongdoer intended to make a profit over and above what would be awarded to the 
injured  party.  In  Donovan  v  Electricity  Supply  Board,  the  court  stated  that,  in 
compensating  injured  parties  for  damage  suffered  as  a  result  of  a  breach  of  Irish 
competition law, ”[it] is not concerned with the motives or the intention of the party 
in default unless the question  of exemplary damages arises”.80 Exemplary damages 
are rarely awarded in Ireland and are, usually, relatively modest.81 

Under  German  law,  exemplary  or  punitive  damages  are  deemed  to  be  contrary  to 
public  policy.82  Nevertheless,  the  recent  report  of  the  Monopolkommission,  Das 
allgemeine  Wettbewerbsrecht  in  der  Siebten  GWB-Novelle,  lists  a  number  of 
measures which it considers not to be purely compensatory in nature.83 In particular 
it refers to provisions that have a sanctioning character such as damages claims for 
copyright infringements that are monitored by the collecting society GEMA. GEMA 
is entitled to recover double damages under which a 100% addition to the ordinary 
licensing  fee  can  be  made.  This  has  been  upheld  by  the  Federal  Court  of  Justice 
(Bundesgerichtshof)  in  Germany,  that  justified  the  sanctioning  character  of  the 
double damages claim on the basis that potential infringers would have otherwise no 
incentive to comply with the rules.84 

It should be borne in mind that most Member States exclude exemplary or punitive 
damages as contrary to their public policy. For that very reason, those Member States 
may  refuse  to  recognize  and  to  enforce  decisions  providing  for  such  damages.85 
Despite this situation, one has to consider whether it would be appropriate to allow 
the  national  court  to  award  more  than  single  damages  in  case  of  the  most  serious 
antitrust infringements. In doing so, one would create a clear incentive for claimants 
to file a damages claim. Such an incentive would be most apparent were the national 
court to automatically award more than single damages in case of the most serious 
antitrust infringements. One could, however, also make the award dependent on the 
existence  or  the  absence  of  predefined  conditions  or,  alternatively,  leave  it 
completely to the discretion of the national court. 

4. Interest on damages 

122. 

In the Marshall II case, the Court of Justice acknowledged that  

“full  compensation  for  the  loss  and  damage  sustained  (…)  cannot  leave  out  of 
account factors, such as the effluxion of time, which may in fact reduce its value. The 

80 
81 
82 
83 

84 

85 

Donovan v Electricity Supply Board [1997] 3 IR 573 at page 585. 
E.g. Kennedy v Ireland [1987] IR 587. 
See Sections 723 s.2(2) and 328 s.1(4) ZPO. 
The  report  is  available  at:  http://www.monopolkommission.de/sg_41/text_s41.pdf.  See  paragraph  79 
and following. 
Bundesgerichtshof  (BGH),  judgments  of  24  June  1955  (I  ZR  178/53,  BGHZ  17,  376),  of  10  March 
1972 (I ZR 160/70, BGHZ 59, 286) and of 15 November 1994 (VI ZR 56/94, NJW 1995, 861). 
See Article 11 of the Convention of 30 June 2005 on Choice of Court Agreements concluded within the 
context  of  the Hague  Conference on Private  International  Law:  “(1)  Recognition  or  enforcement  of a 
judgment may be refused if, and to the extent that, the judgment awards damages, including exemplary 
or  punitive  damages,  that  do  not  compensate  a  party  for  actual  loss  or  harm  suffered.  (2) The  court 
addressed  shall  take  into  account  whether  and  to  what  extent  the  damages  awarded  by  the  court  of 
origin serve to cover costs and expenses relating to the proceedings.” 

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award  of  interest,  in  accordance  with  the  applicable  national  rules,  must  therefore 
be regarded as an essential component of compensation”.86 

123.  What matters in the award of interest are both the interest rate and the point in time 
from which interest is awarded. In order to attain a genuine form of compensation, 
both elements have to be determined at a level that ensures that at least real values, as 
opposed  to  mere  nominal  values,  are  being  compensated.  There  are  a  number  of 
possible points in time from which interest can be awarded, such as the date of the 
infringement, the date of the injury, the date of a demand for payment, the date of the 
notice to stop the breach, the date of the filing of a claim or the service of a writ of 
summons and finally the date of judgment.87 Courts frequently have discretion in this 
matter.  For  example,  in  Crehan  v  Inntrepreneur  Pub  Company,  the  English  High 
Court  ruled  that  although  the  normal  rule  under  English  law  is  that  damages  are 
assessed at the date of loss, this is not an invariable rule of law and it may be that the 
justice of the case requires damages to be measured at the date of judgment, e.g. “in 
times  of  high  inflation  when  interest  would  not  be  any  form  of  acceptable 
compensation”.88 

124.  When set at a level that goes beyond compensating real value, interest may serve as a 
technique  to  increase  deterrence.  That  technique  was  used  in  the  Directive  on 
combating  late  payment  in  commercial  transactions.89  The  Directive  recognises  the 
problem  of  late  payments  and  the  resulting  heavy  administrative  and  financial 
burdens which they place on businesses, particularly SMEs. It finds that late payment 
has  been  made  financially  attractive  to  debtors  in  most  Member  States  by  low 
interest  rates.  The  Directive  therefore  aims  at  reversing  this  trend  of  late  payments 
and  ensuring  that  the  consequences  of  late  payments  are  such  as  to  discourage  late 
payment.90 The Directive does so by establishing the interest rate at a level where it 
becomes financially more interesting to borrow at lower interest rates than to extend 
ones debts by way of late payment. 

C. 

QUANTIFICATION OF DAMAGES 

1. Introduction 

125. 

In  an  action  for  damages  for  breach  of  Community  competition  law,  as  in  any 
damages  action,  the  claimant  will  need  to  quantify  the  damages  suffered. 
Quantification  of  damages  in  competition  litigation  can  be  particularly  complex 
given the economic nature of the illegality and the difficulty of reconstructing what 
the  situation  of  the  claimant  would  have  been  absent  the  infringement,  as  usually 
required under tort rules. 

86 

87 

88 

89 
90 

Case C-271/91 M. Helen Marshall v Southampton and South-West Hampshire Area Health Authority 
[1993] ECR I-4367 at para 31. 
For an overview of what Member States use as the point in time from when interest can be claimed, see 
the Comparative Report, page 86. 
Crehan  v  Inntrepreneur  Pub  Company  and  another  (Case  No:  CH  1998  C801),  [2003]  EWHC  1510 
(Ch). 
Directive 2000/35 on combating late payment in commercial transactions, OJ 2000 L 200/35. 
Recital 16 of Directive 2000/35, as note 89 above. 

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37 

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126. 

127. 

128. 

Typically  the  measure  of  loss  which  shall  be  compensated  in  an  antitrust  damages 
case  is  taken  to  be  the  difference  between  the  claimant’s  actual  position  and  the 
situation  he  would  have  been  in  “but  for”  the  illegal  conduct  (the  counterfactual). 
The former  encompasses actual losses as well as profits  that have  not  been gained, 
while  the  latter  refers  to  the  hypothetical  situation  in  which  the  claimant  would  be 
had no competition law infringement occurred. The loss is thus compensated if the 
claimant  is  put  into  the  financial  situation  he  would  have  been  in  “but  for”  the 
infringement. A number of methods are used to establish this “but for” scenario, e.g. 
the prices, profits, costs, and the market situation etc., that would have prevailed in 
the absence of the infringement, to allow a comparison between the hypothetical and 
the actual situation. 

The most commonly claimed types of antitrust damages are likely to be overcharges 
(i.e.  increased  prices  in  case  of  cartels  or  excessive  prices  in  case  of  a  dominant 
position)  and  damages  claimed  for  other  anti-competitive  conduct  (i.e.  predatory 
pricing or refusal to supply) which has led to lost net profits to a continuing business 
or even lost going concern value of a terminated business.  

A  damage  due  to  overcharge  can  consist  of  two  parts,  the  damage  due  to  the 
infringement (i.e. the higher price paid due to the cartel), but also lost profits due to 
the fact that the purchaser might have bought fewer input goods or services, e.g. for 
production  purposes,  and  thus  made  less  profit  as  he  only  could  produce  and  sell 
fewer products. 

129.  When  awarding  damages,  the  court  may  also  have  to  take  into  account  effects  that 
result  from  the  behaviour  of  the  claimant.  That  is  particularly  the  case  when  the 
claimant is under an obligation to mitigate any losses. In addition, there is a question 
as to whether the claimant would have had to pay taxes in relation to the revenues he 
lost as a result of the antitrust infringement and for which he now asks compensation. 
If  so,  a  court  order  would  normally  take  these  taxes  into  account  by  reducing  the 
award. 

2. Methods for calculation of damages 

130. 

131. 

A variety of damage quantification methods are available to the parties, as described 
in part II of the Study (the Economics Report). There is no reason why any Member 
State  should  require  the  use  of  one  quantification  method  over  another,  though  the 
claimant  will  often  (in  the  common  law  jurisdictions  in  particular)  need  to  bear  in 
mind that his quantification will be disputed by the other side and to this extent will 
need to “defeat” the evidence put forward by the other side. In civil law jurisdictions 
investigation  of  quantum  may  to  a  greater  degree  be  undertaken  by  the  court,  if 
necessary assisted by an expert. 

Although  in  what  follows,  the  methods  for  calculation  of  damages  are  presented 
separately,  they  are  complementary  in  the  sense  that  several  methods  may  be 
considered  depending  on  the  facts  of  the  case  in  order  to  see  whether  they  yield 
similar estimates of the quantum of any damage. To a certain degree an overlap of 
the methods can not be avoided and does not diminish the value of one method over 
the  other.  The  simple  methods  can  be  used  as  a  cross-check  for  the  more  complex 
methods. The existing case law from the Member States to date appears to show that 
the  courts  prefer  the  simple  methods.  There  appears  to  be  no  case  law  to  date  in 

EN 

38 

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which  econometric  evidence  has  been  considered  by  the  court  as  the  basis  for  an 
award. 

132. 

A crucial question from a policy perspective is whether the accuracy brought by the 
more complex methods (assuming that this is the case) is sufficient to outweigh the 
extra  cost  and  time  involved  in  bringing  and  assessing  this  evidence.  It  might  be 
desirable  for  courts  to  rely  on  simpler  techniques,  underpinned  by  the  presumption 
that an equity estimation is sufficient or even, in some respects, preferable. 

a. The simple calculation methods91 

133. 

There  are  basically  three  simple  methods  to  calculate  the  damage  caused  by  an 
antitrust infringement: 

•  the  before-and-after  method  involves  a  simple  comparison  of  prices  during  the 
infringement  with  the  situation  before  and  after  the  infringement  to  provide  a 
reasonable assumption of the real price levels in the absence of an infringement; 

•  the  yardstick  approach  compares  the  distorted  market  with  similar  markets  that 
were not affected by the infringement. Ideally the structure as to prices, costs and 
other  characteristics  is  more  or  less  similar  to  allow  the  assumption  that  price 
differences in the distorted market are the result of the anticompetitive action; 

•  the  cost  based  approach  is  based  on  information  produced  by  those  responsible 
for  the  infringement  about  their  average  unit  production  cost,  to  which  a 
reasonable profit margin is added to obtain a price which can be considered to be 
reasonable under competitive conditions. 

b. More complex calculation methods92 

134. 

The  following  two  calculation  methods  may  lead  to  a  more  accurate  result,  but  are 
more time-consuming and data-intensive: 

•  the  price  prediction  approach  uses  econometric  modelling  to  seek  to  predict 
prices in a “but for” scenario on the basis of historical determinants of prices or 
yardstick comparisons with other markets. This approach is a more sophisticated 
version of the before and after and yardstick approaches but is heavily dependent 
on the quality of the data available; 

•  the theoretic modelling approach simulates an oligopolistic model to ascertain the 
effects  of  the  distortion.  Econometric  modelling  and  other  data  are  used  to 
estimate key model parameters to feed them into a theoretical model. 

91 

92 

See  Study  on  the  conditions  of  claims  for  damages  in  case  of  infringement  of  EC  competition  rules, 
Analysis of economic models for the calculation of damages (the ”Economics Report”), from page 17 
onwards. 
See the Economics Report, from page 21 onwards. 

EN 

39 

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c. The sampling method 

135. 

Sometimes  it  may  be  disproportionally  difficult  or  even  impossible  to  exactly 
calculate  the  damage  suffered  as  a  result  of  an  antitrust  infringement.  In  those 
circumstances,  it  should  be  acceptable  to  show  reasonable  approximations  of  the 
damage  suffered.  One  method  to  reach  an  approximation  is  the  sampling  method. 
This technique may be particularly effective in litigation involving large groups, such 
as certain indirect purchaser classes or consumer associations.93  

136. 

In  Société  anonyme  des  laminoirs  the  European  Court  of  Justice  supported  the 
technique to calculate damage via sampling. It held that  

“[w]hen  it  is  necessary  to  consider  a  situation  as  it  would  have  been  if  there  had 
been no wrongful act or omission, the court must, whilst insisting that all available 
evidence be produced, accept realistic approximations, such as averages which have 
been established by means of comparisons. (…) In assessing their loss the applicants 
have  used  the  only  method  possible.  This  consists  in  imagining  the  position  which 
would  have  arisen  for  each  factory  concerned  as  regards  the  purchase  of  ferrous 
scrap, if the promises relating to the transport parity had not been made. Although in 
using this method it is not possible to arrive at an exact assessment of the damage, 
nevertheless  the  sampling  methods  habitually  used  in  economic  surveys  make  it 
possible  to  reach  acceptable  approximations  provided  that  the  basic  facts  are 
sufficiently reliable.”94 

d. The ex aequo et bono quantification 

137. 

138. 

The  basic  rule,  operating  in  many  Member  States,  is  that  where  exact  quantum  is 
difficult  to  prove,  proof  of  exact  damage  can  be  waived  and  the  court  can  award  a 
reasonable amount in its place (this is often called an ex aequo et bono estimation). 
In a few Member States, this possibility only applies to certain categories of damage, 
most notably loss of future profit.95 

In  a  few  Member  States,  this  lowering  of  the  required  standard  of  proof  of  the 
claimant in relation to the quantification of damages does not exist. That means that 
if the claimant is unable to prove the exact loss, the claim fails. That is the case, e.g. 
in Spain, where a civil court may request the Competition Court to issue a report on 
the origin and quantum of damage.96 The Competition Court is, however, not obliged 
to  produce  such  a  report  and  the  findings  of  the  report  do  not  bind  the  requesting 
court. 

139. 

Ex  aequo  et  bono  estimation  of  damages  could  be  used  in  conjunction  with,  or  to 
underpin from a legal perspective the use of simple calculation methods as outlined 

93 

94 

95 
96 

In  US  parens  patriae  actions,  damages  may  be  calculated  in  a  price  fixing  case  for  the  whole  class 
represented  by  statistical  or  sampling  methods.  There  is  no  need  to  calculate  damages  for  each 
individual on whose behalf the action has been brought (Section 4D of the Clayton Act). 
Joined cases 29, 31, 36, 39 to 47, 50 and 51/63 Société anonyme des laminoirs v High Authority [1966] 
ECR 139. 
See in particular the table at page 71 of the Comparative Report. 
Article 13.3 of Law 16/1989 of 17 July 1989 on the Defence of Competition. 

EN 

40 

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above.  The  principle  is  less  compatible  with  complex  models,  that  attempt  to 
quantify damages with precision on the basis of econometric or statistical techniques. 

3. Two special cases: calculating lost profits of the claimant and calculating damage on the 

basis of the defendant’s illegal gain 

a. Calculating lost profits of the claimant 

140. 

To  calculate  losses  sustained  in  cases  of  anticompetitive  conduct  other  than  price 
increases, such as refusal to supply or predatory pricing, different methods are used. 
In such circumstances, damages may be assessed in terms of lost profits arising from 
the  misconduct  where  the  objective  is  to  value  that  portion  of  a  business  that  has 
been  lost  as  a  result  of  the  antitrust  infringement.  A  calculation  will  involve 
accounting, finance and economic methodologies to estimate the difference between 
what the claimant’s profit was and what it would have been but for the infringement. 

141. 

The  following  methods  could  be  used  for  calculating  lost  profits.97  These  methods 
also appear to presuppose the use of one of the methods outlined at paragraphs 133 
and  134  in  the  calculation  of  the  counterfactual  (i.e.  the  hypothetical  price  against 
which lost profit is measured): 

•  the  earnings  based  approach  involves  discounting  sales,  costs  and  cash  flows 
from  the  income  statement  in  order  to  provide  an  estimate  of  the  “but  for” 
scenario; 

•  the market based valuation approach uses financial multiples to value the injured 
business,  such  as  stock  market  value  or  profits  of  comparable  businesses  whose 
shares are publicly traded on stock exchanges; 

•  the  assets  based  valuation  approach  uses  information  from  the  balance  sheet  to 
value  a  business.  Measures  include  the  book  value  of  tangible  net  worth,  fair 
market value of tangible net worth and liquidation value. 

142. 

A number of generic issues are raised in loss of profits calculations that would apply 
to antitrust cases as well as in other contexts. Timing of injury means establishing the 
period in which the claimant’s business was affected by the infringement. This might 
be  difficult  as  this  period  could  have  started  later  than  the  infringement,  but  the 
infringement may continue to have consequences even after it has been terminated. 

143. 

Finally, it should be underlined that in case of calculating damage resulting from lost 
profits, the Court of Justice pointed at the broad discretion of national courts where it 
stated that  

“the loss of earnings is the result not of a simple mathematical calculation but of an 
evaluation and assessment of complex economic data. The Court is thus called upon 
to  evaluate  economic  activities  which  are  of  a  largely  hypothetical  nature.  Like  a 
national  court,  it  therefore  has  a  broad  discretion  as  to  both  the  figures  and  the 

97 

See paragraph 5.6 and following of the Economics Report. 

EN 

41 

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statistical data to be chosen and also, above all, as to the way in which they are to be 
used to calculate and evaluate the damage.”98  

b. Calculating damage on the basis of the defendant’s illegal gain 

144.  Where the claimant’s individual loss is too difficult to assess on a subjective basis, as 
may  be  the  case  particularly  in  relation  to  consumer  claims,  it  may  be  possible  to 
calculate the loss on the basis of the defendant’s illegal gain.99 E.g. in the case of a 
cartel the illegal gain is the difference between the competitive price and the cartel 
price, namely the overcharge. The calculation of the illegal gain does thus not take 
into  account  the  lost  profits  from  sales  which  the  defendant  no  longer  made  as  a 
result  of  the  price  increase.  In  Community  law,  the  Directive  on  the  protection  of 
intellectual  property  rights100  provides  that  the  unfair  profits  made  by  the  infringer 
can  be  taken  into  account  in  the  calculation  of  the  claimant’s  damages,  next  to  the 
lost profits that the injured party has suffered.  

D. 

SPLIT PROCEEDINGS 

145. 

146. 

In some Member States, it is possible to get a partial judgment regarding the finding 
of  the  infringement  and  the  finding  of  the  damage.  That  judgment  does  not 
pronounce  on  the  quantification  of  the  damage,  but  the  procedure  continues  until 
such  time  when  the  damages  can  be  quantified.  It  is  not  infrequent  for  this  latter 
procedure to be interrupted by a settlement between the parties as to the damages to 
be awarded. 

Such  split  proceedings  generally  exists  in  two  forms.  In  a  first  group  of  Member 
States, a single procedure is split into two phases, whereby liability is established in a 
first  phase  and  damages  are  assessed  in  a  second  phase.101  In  a  second  group  of 
Member States, two “full” and separately appealable judgments are rendered: a first 
one finding the liability and a subsequent one setting the amount of damages.102  

E. 

POLICY OPTIONS 

1. Options in relation to the basis of defining the damage 

Option 14: Compensatory damages 

147. 

A first option is to award damages to the victim on the basis of pure compensation, to 
make amends for loss or injury arising from an infringement of EC antitrust rules. 

Option 15: Recovery of illegal gain 

98 
99 
100 
101 
102 

Joined cases C-104/89 and C-37/90 Mulder and others v Council [2000] ECR I-203, para 79. 
This calculation method is accepted in Cyprus, Germany, the Netherlands, Poland, Lithuania and Spain. 
As note 26 above. 
This is the case in the Czech Republic, Spain, France, Ireland, Italy, Malta, Poland. 
This is the case in Denmark, Germany, Estonia, the Netherlands, Portugal and Slovenia. In Germany, 
the claimant who does not have all necessary information to quantify the amount of damage, can ask the 
court for a declaratory judgment stating the defendant’s obligation to compensate the claimant for all 
damage caused by the infringement. 

EN 

42 

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148. 

Another option would be to allow the victim to calculate its loss on the basis of the 
defendant’s overcharge. One could envisage two sub-options: 

•  a first is to allow the victim to claim the entire overcharge from the infringement. 
In  a  subsequent  procedure,  damages  are  then  allocated  between  all  parties  that 
have suffered a loss;  

•  another option would be to allow the victim to claim the overcharge only arising 
from his commercial dealings with the defendant. For example if the overcharge 
was 30%, the claim would be for 30% of invoice price of the victim’s purchases. 

149. 

The  recovery  of  the  defendant’s  illegal  gain  only  covers  part  of  the  victim’s  loss, 
namely  what  the  latter  paid  more  than  what  he  would  have  paid  at  a  competitive 
price (damnum emergens). In order to fully compensate the victim, this part needs to 
be completed by a compensation of the victim’s quantitative loss in purchase (lucrum 
cessans, named “deadweight loss” because it is not appropriated by the defendant). 
The  amount  of  the  deadweight  loss  largely  depends  on  the  price  elasticity  of  the 
claimant’s  demand.  It  may  in  some  circumstances  therefore  be  difficult  for  the 
claimant  to  quantify  the  deadweight  loss.  In  those  circumstances,  an  ex  aequo  et 
bono estimation of damages seems most appropriate. 

Option 16: Double damages for horizontal cartels 

150. 

In order to create a clear incentive for claimants to bring antitrust damages cases, it 
could  be  envisaged  to  award  double  damages  in  case  of  the  most  serious  antitrust 
infringements,  i.e.  horizontal  cartels.  Comments  are  invited  as  to  whether,  if  it  is 
introduced, such award is considered useful, it would be automatic, conditional or at 
the discretion of the national court. 

Option 17: Prejudgment interest 

151. 

To  ensure  that  the  availability  of  prejudgment  interest  is  a  sufficiently  strong 
incentive  to  encourage  claimants  to  bring  cases,  the  date  from  which  prejudgment 
interest runs could be set at the date of the infringement or the date of the injury. A 
similar  incentive  could  be  created  by  increasing  interest  rates  generally  and/or 
allowing for claimants to claim compound interest. 

2. Options in relation to methods of quantification of damages 

Option 18: The quantification methods  

152. 

153. 

From the description in paragraphs 125 to 144 it can be seen that there are a variety 
of  techniques  available  for  quantifying  damages.  The  choice  of  technique,  ranging 
from  an  equity  approach,  over  simple  methods  to  more  complex  and  detailed 
methods  will  usually  depend  on  the  specifics  of  the  case  and  the  data  that  are 
available. 

Views  are  sought  as  to  the  suitability  of  the  described  methods  in  damages 
quantification  before  civil  courts.  In  particular,  a  key  issue  would  appear  to  be  the 
added value brought by the more complex models over the simpler models in terms 
of  greater  accuracy  of  quantification  and  whether,  in  the  view  of  stakeholders,  any 

EN 

43 

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such added value is justified by the additional time and cost that the more complex 
models might be expected to bring. 

3. Other options 

Option 19: Commission guidelines on quantification of damages 

154. 

It  may  be  appropriate  to  provide  national  courts  with  some  form  of  guidance  with 
regard to the quantification of damages. Such guidance might be particularly useful 
in explaining the more complex quantification techniques as set out above. 

Option 20: Split proceedings as between liability and quantum 

155. 

Split proceedings may be another way of facilitating actions for damages. If liability 
can be established separately before assessing damages, this may well reduce the cost 
of  litigation.  If  liability  is  demonstrated  it  is  not  unlikely  that  parties  will  reach  a 
settlement  as  regards  the  quantum  of  damages,  thereby  avoiding  costly  recourse  to 
experts and shortening the actual court proceedings. 

EN 

44 

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SECTION V: THE PASSING ON DEFENCE AND INDIRECT PURCHASER STANDING 

A. 

INTRODUCTION 

156. 

If a cartel or a dominant company sells its goods at supra-competitive prices, a direct 
purchaser, e.g. a wholesaler, suffers as a result of having paid a price that is in excess 
of the competitive price. However, the direct purchaser may be able to pass on all or 
some  of  the  loss  to  the  next  purchaser  in  the  chain,  e.g.  a  retailer  or  a  consumer. 
These purchasers, who are only indirectly linked with the seller, e.g. a cartelist or a 
dominant firm engaged in anti-competitive behaviour, in turn suffer a loss by paying 
a supra-competitive price which has been passed on to them.  

157. 

This leads to two related questions: 

•  Firstly,  if  the  direct  purchaser  brings  a  damages  claim,  should  the  court  take 
account of the passing on of some or all of the loss to other purchasers down the 
line? 

•  Secondly,  should  indirect  purchasers  be  entitled  to  bring  actions  to  compensate 

them in respect of their loss? 

158. 

These questions are at the heart of the way in which a system for damages for breach 
of antitrust law, particularly in relation to overcharge claims, functions. 

B. 

THE PASSING ON DEFENCE 

159. 

Price fixing (or other anti-competitive behaviour leading to an increase in price) in 
one  market  not  only  harms  the  purchasers  in  the  subsequent  downstream  market. 
Harm can be inflicted upon purchasers and non-purchasers at all levels of the supply 
chain.  The  Study  addresses  the  model  where  passing  on  and  indirect  purchaser 
standing are allowed. The example given is that of a cartel between manufacturers of 
a  foodstuff  which  is  refined  by  processors,  then  included  by  food  manufacturers in 
various  products  sold  to  grocery  retailers.  It  is  stated  that  “the  analysis  becomes 
considerably  more  difficult  as  pass  through  must  be  assessed  at  each  stage  of  the 
supply chain.” It is furthermore argued that if a passing on defence is allowed, this 
may  also  create  conflicts  between  the  claimants  at  the  various  levels  of  the  supply 
chain.103 

160. 

The Study gives an overview of the determinants of passing on.104 In simple terms, 
the  key  determinants  of  passing  on  are  the  nature  of  competition  in  the  claimant’s 
output  market,  and  whether  the  overcharge  affects  the  position  of  the  claimant 
relative to its competitors. According to the Study, in general, the more competitive 
the  downstream  market  (i.e.  the  market  in  which  the  claimant  is  operating),  the 
greater the likelihood of passing on. 

103 
104 

See paragraph 4.3 of Part I of the Economics Report.  
Paragraphs 4.9 to 4.14 of Part I of the Economics Report. 

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45 

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161. 

The  Study  addresses  the  crucial  issue  of  measuring  the  impact  of  passing  on.105 
Techniques  include  a  “theoretical  approach”  which  would  start  from  a  theoretical 
model  of  the  claimant’s  market  and  the  structural  determinants  of  pass-on,  to  an 
approach  which  directly  estimates  the  extent  of  pass-on  using  a  statistical  study  of 
the historical relationship between the claimant’s prices and the determinants of these 
prices.  Both  of  these  approaches  are  described  in  the  Study.  However,  given  their 
highly  complex  and  technical  nature  they  are  not  reproduced  here.  While  a  certain 
level  of  complexity  is  necessary  in  determining  the  total  overcharge  of  the  cartel, 
replicating  this  complexity  at  every  stage  of  the  supply  chain  would  magnify  the 
complexity and cost of actions for damages. It does not appear possible to construct a 
model which accurately identifies, at reasonable cost, the harm suffered by players at 
different levels of the supply chain.  

162. 

This  great  technical  complexity  associated  with  calculating  the  passing  on  of  the 
overcharge along the supply chain has been a determining consideration in US law. 
In its Illinois Brick ruling, the US Supreme Court motivated as follows its decision 
not to permit the passing-on defence in federal US antitrust law:106 

163. 

164. 

“Permitting  the  use  of  pass-on  theories  …  essentially  would  transform  treble-
damages actions into massive efforts to apportion the recovery among all potential 
plaintiffs that could have absorbed part of the overcharge – from direct purchasers 
to middlemen to ultimate consumers. However appealing this attempt to allocate the 
overcharge might seem in theory, it would add whole new dimensions of complexity 
to treble-damages suits and seriously undermine their effectiveness.” 

In  conclusion,  having  to  calculate  the  total  overcharge  is  already  sufficiently 
complex  and  any  attempt  to  go  beyond  this  and  apportion  overcharge  along  the 
supply  chain  would  greatly  increase  the  complexity  and  cost  of  antitrust 
enforcement.  

There is no detailed analysis of the passing-on defence in competition law in the case 
law of the Community courts. However, the ECJ has held as follows at paragraph 30 
of the judgment in Courage: 

“The  Court  has  held  that  Community  law  does  not  prevent  national  courts  from 
taking steps to ensure that the protection of the rights guaranteed by Community law 
does  not  entail  the  unjust  enrichment  of  those  who  enjoy  them  (see,  in  particular, 
Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, paragraph 
14, Case 68/79 Just [1980] ECR 501, paragraph 26, and Joined Cases C-441/98 and 
C-442/98 Michailidis [2000] ECR I-7145, paragraph 31).” 

105 
106 

Paragraphs 4.15 to 4.21 of Part I of the ”Economics Report”. 
Illinois Brick v Illinois, 431 US 720 (1977). 

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165. 

166. 

167. 

168. 

The passage from Courage set out above draws on previous case law of the ECJ. The 
possibility of the passing on defence has been acknowledged by the Court in actions 
for the non-contractual liability of the Community (Article 288(2) EC)107 and actions 
for  the  recovery  of  illegally  levied  duties  brought  by  undertakings  against  Member 
States.108 

The  existence  and  operation  of  the  passing  on  defence  in  Community  law  is 
complex. Indeed, the Court itself has placed such conditions on the operation of the 
passing  on  defence  that  it  could  be  argued  that  when  it  exists  such  a  defence  is  in 
practice redundant.  

Firstly, the majority of the Community case law is not in the field of competition. So 
far  the  Community  courts  have  not  examined  the  issue  in  depth  in  competition 
litigation. In particular, apportionment of damage as a result of the use of the passing 
on  defence  could  be  more  complex  in  antitrust  cases  than  in  tax  or  subsidy  refund 
cases because of the wider effects of the cartel globally.  

Secondly,  the  existing  case  law  of  the  Community  courts  is  limited  to  stating  that 
Community  law  does  not  preclude  a  rule  of  national  law  which  seeks  to  prevent 
unjust enrichment. It does not establish the existence of the passing on defence as a 
matter of Community law. As AG Slynn stated in his Opinion in Bianco: 

“The  Court  [in  Just]  did  not,  however,  hold  that  the  fact  that  charges  had  been 
passed on must as a matter of Community law, e.g. pursuant to a general principle 
forbidding  unjust  enrichment,  mean  that  the  charges  wrongly  demanded  and  paid 
could never be recovered.”109 

169. 

The primary basis for the existence of the passing on defence in the reasoning of the 
Community courts is the prevention of the unjust enrichment of the claimant. This is 
the motivation referred to at paragraph 30 of Courage. However, passing on does not 
necessarily  result  in  the  unjust  enrichment  of  the  claimant  because  it  can  equally 
result in a reduced volume of sales as the trader has to raise prices.110  

107 

108 

109 
110 

Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, referred to in paragraph 30 of 
Courage. 
See Just, as note 6 above; joined cases C-441/98 and C-441/98 Kapniki Michailidis v IKA [2000] ECR 
I-7145,  referred  to  in  paragraph  30  of  Courage;  see  also  San  Giorgio,  as  note  6  above,  joined  cases 
331/85, 376/85 and 378/85 Les Fils de Jules Bianco and J Girard Fils v Directeur général des douanes et 
droits  indirects  [1988]  ECR  1099  and  Comateb,  as  note  6  above;  see  also  the  Opinion  of  AG  van 
Gerven in Banks, as note 4 above, para 48: “Community law does not prevent the national court from 
ensuring, in accordance with national law, that the protection of rights guaranteed by the Community 
legal order does not result in the unjust enrichment of those entitled” and para 51: “In quantifying the 
damage it is necessary, in any event, in accordance with the (…) prohibition on unjust enrichment (...), 
to  take  account  of  the  extent  to  which  the  damage  has  been  passed  on  in  the  selling  prices  of  the 
complainant undertaking.” 
Bianco, as note 108 above. 
The consideration as to a reduction in sales in cases where an overcharge is passed on also is suggested 
by  the  reasoning  of  the  US  Supreme  Court  in  Hanover  Shoe  v  United  Shoe  Machinery,  392  US  481 
(1968). 

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170. 

Indeed,  in  the  later  case  law  of  the  Court  of  Justice  passing  on  and  actual  unjust 
enrichment are expressed by the ECJ as cumulative conditions to be fulfilled for the 
reduction of the charge on the basis of passing on. As the Court held in Comateb at 
paragraph 27 

“Accordingly, a Member State may resist repayment to the trader of a charge levied 
in  breach  of  Community  law  only  where  it  is  established  that  the  charge  has  been 
borne in its entirety by someone other than the trader and that reimbursement of the 
latter would constitute unjust enrichment.”111 

171.  More recently, the Court has held at paragraph 102 of its judgment in Weber 

172. 

173. 

174. 

“It must therefore be concluded on this point that the rules of Community law on the 
recovery  of  sums  levied  but  not  due  are  to  be  interpreted  as  meaning  that  they 
preclude  national  rules  which  refuse  –  a  point  which  falls  to  be  determined  by  the 
national  court  –  repayment  of  a  charge  incompatible  with  Community  law  on  the 
sole ground that the charge was passed on to third parties, without requiring that the 
degree of unjust enrichment that repayment of the charge would entail for the trader 
be established.”112 

The disconnection between passing on and the unjust enrichment of the claimant has 
evolved in the case law of the Court to the point where a presumption that passing on 
leads to unjust enrichment is so unfounded as to offend against the Community law 
principle  of  effectiveness  (where  the  context  is  judicial  protection  of  a  Community 
law  right,  namely  restitution  of  a  charge  levied  in  contravention  of  Community 
law).113 

It can be said that there is no passing on defence in Community law; rather, there is 
an unjust enrichment defence which requires (1) proof of passing on (which can be 
difficult  in  itself  –  see  below)  and  (2)  proof  of  no  reduction  in  sales  or  other 
reduction to income.  

Furthermore, if the passing on defence were to be recognized, it would be extremely 
difficult  to  apportion  damage  as  between  the  different  claimants  at  the  different 
levels of the production/distribution chain. The door to apportionment is opened by 
the Court’s recognition of partial passing on in Comateb and Michailidis.114 This is 
correct as a matter of principle if one wishes to seek to try to estimate as precisely as 
possible  the  extent  of  any  unjust  enrichment.  However,  it  does  not  open  the  same 
complexities  when  applied  in  the  field  of  recovery  of  charges  as  the  possibility  of 
consumer actions in the latter does not appear to be of any relevance (though it could 
be a theoretical possibility).115 This cannot be said of antitrust actions. 

111 

112 
113 
114 

115 

Comateb,  as  note  6  above  (emphasis  added);  repeated  in case  C-147/01  Weber’s Wine World  [2003] 
ECR I-11365 at para 94. 
Weber, as note 111 above (emphasis added). 
See para 117 of Weber, as note 111 above. 
Comateb, as note 6 above, paras 27 and 28 and Michailidis, as note 108 above, para 33. See also para 
51 of the Opinion of Advocate General van Gerven in Banks, as note 4 above. 
See para 7 of the Opinion of AG Mancini in San Giorgio, as note 6 above: “[i]t is absurd to think of a 
mass  of  consumers  who,  in  a  system  in  which  the  class  action  is  unknown,  would  bring  an  action 
against the State in order to recover minimal amounts”. 

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175. 

Finally, in San Giorgio116 the ECJ held that a provision of national law which placed 
the burden of proof on the party claiming repayment to show that it had not passed 
on the charges to the final consumer was incompatible with Community law on the 
grounds  that  it  made  it  virtually  impossible  or  excessively  difficult  to  secure 
repayment of the charge wrongly levied and paid. Under Community law the burden 
of proving passing on, where the issue arises under national law, is on the defendant. 
Passing on operates, where it does operate, as a defence.117 It is a question of fact for 
the  defendant  to  establish.  The  defendant’s  burden  of  showing  passing  on  in  the 
individual case will often be very difficult in practice to discharge.  

C. 

INDIRECT PURCHASER STANDING 

176. 

177. 

178. 

As mentioned above, the question of standing of indirect purchasers and the question 
how,  if  these  purchasers  have  standing,  their  claim  can  be  calculated  in  situations 
where  passing  on  has  taken  place,  is  intimately  linked  with  the  question  of  the 
availability of the passing-on defence as such and, where it exists, its operation. 

The  Community  courts  have  not  taken  any  position  on  the  standing  of  indirect 
purchasers  in  antitrust  actions.  It  has  been  argued  that  the  ruling  of  the  Court  in 
Courage operates against any restriction on standing of indirect purchasers. Firstly, 
the  Court  reaffirmed  at  paragraphs  23  and  24  of  its  judgment  in  the  Courage  case 
that Articles 81 and 82: 

“produce  direct  effects  in  relations  between  individuals  and  create  rights  for  the 
individuals concerned which the national courts must safeguard (…). It follows from 
the  foregoing  considerations  that  any  individual  can  rely  on  a  breach  of  Article 
[81](1) before a national court” (emphasis added). 

This is a reaffirmation of principles laid down in the Court’s earlier jurisprudence.118 

It is submitted that, looked at in isolation and applying the general principles set out 
in the foregoing case law, both direct and indirect purchasers have the right to bring a 
claim subject to proving infringement, injury suffered and causation. To depart from 
such  a  principle  would  deny  those  most  likely  to  have  suffered  antitrust  injury  a 
remedy.  It  is  equally  clear  that  allowing  all  parties  downstream  of  a  competition 
infringement to claim damages creates additional complexities (how to calculate the 
level  of  passing  on),  disincentives  (successful  claimants  will  get  less),  and  higher 
transaction  costs  (increase  in  number  and  complexity  of  cases  following  from  the 
same infringement). 

179. 

In designing any system for claiming antitrust damages the main objective must be 
the  efficient  and  effective  enforcement  of  the  antitrust  rules.  Such  a  system  would 
ideally  be  able  to  accommodate  both  the  deterrence  and  the  compensation  aims  to 

116 
117 

118 

San Giorgio, as note 6 above. 
It should also be noted that according to Section 33 (3)(2) GWB as amended by the 7th Amendment, 
the passing-on defence is not excluded as a matter of German civil law, but that it operates as a defence 
and that the facts underlying that defence have therefore to be proven by the defendant. 
See  BRT  and  SABAM,  as  note  8  above,  para  16;  see  also  case  C-282/95  P  Guérin  Automobiles  v 
Commission [1997] ECR I-1503, para 39. 

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some  degree.  Therefore,  providing  an  efficient  system  can  be  found  to  compensate 
indirect  purchasers,  and  in  particular  final  purchasers,  then  there  is  no  reason  why 
they  should  not  also  benefit  from  actions  for  damages.  Given  the  above-mentioned 
complexities,  it  is,  however,  likely  that  a  trade-off  between  justice  (in  the  sense  of 
full  recovery  for  all  those  who  have  suffered  a  loss  from  an  illegal  practice)  and 
efficiency is inevitable.  

180. 

It  is  suggested  that  the  determining  factor  could  be  the  effective  enforcement  of 
Community law. If limiting the rights of certain individuals to claim is necessary to 
ensure a system which is more effective in safeguarding the enforcement of Articles 
81  and  82,  then  it  is  submitted  that  such  limitations  should  be  acceptable  under 
Community law. Therefore, it might be necessary to determine what rights must be 
facilitated  to  ensure  an  effective  enforcement  system  rather  than  insisting  on  the 
absolute protection of all private rights. For the protection of the rights of consumers, 
a specific small claims procedure or collective action might be an efficient form of 
redress given the very low level of individual damage suffered in many of the cases 
(see further below in Section VI).  

D. 

POLICY  OPTIONS  FOR  THE  TREATMENT  OF  THE  PASSING  ON  DEFENCE  AND 
INDIRECT PURCHASER STANDING 

Option 21: The passing on defence is allowed and both indirect and direct purchasers can sue 
the infringer 

181. 

Under  this  model,  damages  have  to  be  apportioned  between  direct  and  indirect 
purchasers.  This  can  involve  difficulties  in  the  assessment  of  passing  on  at  the 
various  stages  in  the  production  and  distribution  chain,  as  discussed  above,  though 
the  system  would  adhere  to  the  principle  of  compensatory  damages  for  each  party 
that has suffered injury. The actions would be in principle separate and independent 
though in practice there is no reason why parties could not seek to coordinate their 
actions and thereby possibly save costs and time through making use of appropriate 
procedural devices. In this regard, the use of joinder or group action mechanisms, as 
well  as  some  form  of  collective  or  representative  action  at  consumer  level  (see 
further below in Section VI), could be applied under this model. 

Option  22:  The  passing  on  defence  is  excluded  and  only  direct  purchasers  can  sue  the 
infringer 

182. 

This  option  privileges  direct  purchaser  recovery  over  recovery  by  other  classes  of 
potential litigant. This brings advantages principally in terms of the deterrent effect 
of actions for damages of competition law, since it can be anticipated that the direct 
purchaser  normally  has  better  access  to  the  evidence  necessary  to  establish  the 
infringement and also to quantify damage, including damage suffered at lower levels 
of the production/distribution chain. The more one moves away from the infringer(s) 
and  direct  purchasers,  the  more  difficult  it  becomes  to  assess  effects.  For  these 
reasons  the  direct  purchaser  is  usually  the  best  placed  claimant  and  so  a  system 
which  encourages  direct  purchaser  claims  can  be  anticipated  to  achieve  a  greater 
degree of enforcement and deterrent effect. 

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50 

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183. 

184. 

It  is  arguable  in  addition  that  if  the  direct  purchaser  is  operating  in  a  competitive 
market, market dynamics may, in some cases, redress the alleged unjust enrichment 
made by the direct purchaser by forcing him to pass on the gain made in the form of 
any damages award to the next levels of the production/distribution chain. 

In  order  to  allow  for  the  possibility  of  recovery  at  the  consumer  level  and  the 
protection of consumer interests, an exception would need to be created within this 
model to the reservation of standing to direct purchasers so as to allow for claims at 
the consumer level (see further section VI below). 

Option 23: The passing on defence is excluded and both direct and indirect purchasers can sue 
the infringer 

185. 

This  model  could  lead  to  over-recovery  from  the  infringer.  On  the  other  hand,  this 
model  promotes  a  strong  form  of  deterrence  against  the  infringer  and  increased 
incentives to sue for both direct and indirect purchasers. 

Option 24: A two-step procedure119 

186. 

This system could be structured as follows: 

(A) In initial proceedings the passing on defence is excluded and the infringer is sued 

for the total overcharge. 

(B)  In  later  proceedings  damages  are  allocated  as  between  all  parties  that  have 

suffered a loss.  

187. 

This  system  has the  advantage of ensuring that the infringer pays (deterrence aim). 
The  subsequent  allocation  proceedings  ensure  as  far  as  possible 
the 
compensation  aim  is  achieved.  This  option  raises  some  further  questions  as  to  the 
precise  modalities  in  which  it  might  operate,  which  would  require  further 
consideration.  

that 

119 

See, for example, ABA Section of Antitrust Law, The State of Federal Antitrust Enforcement – 2001, 
Report  of  the  Task  Force  on  the  Federal  Antitrust  Agencies  -  2001  at  page  24,  and  ABA  Section  of 
Antitrust Law, Report on Remedies (2004). 

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SECTION VI: DEFENDING CONSUMER INTERESTS 

A. 

INTRODUCTION 

188. 

189. 

190. 

There  is  a  merit  in  fostering  claims  by  final  consumers,  because  these  contribute 
directly to the overarching aims of compensation and increased deterrence, as well as 
to  the  development  of  a  competition  culture.  Costs,  delays  and  administrative 
burdens  involved  in  ordinary  judicial  proceedings  can  certainly  discourage 
consumers  who  suffer  a  relatively  minor  economic  loss  from  seeking  a  judgement 
against undertakings engaging in anti-competitive conduct. To enable consumers to 
be viable litigants, some facilitating instruments may be required. 

The  obstacles  to  private  redress  have  led  to  the  introduction  of  simplified  court 
procedures  in  several  jurisdictions  across  Europe.  Although  diverging  in  scope  and 
access  conditions,  the  existing  small  claims  procedures  present  some  common 
characteristics:  the  economic  burden  faced  by  the  plaintiffs  is  minimised;  the 
ordinary  rules  governing  the  acquisition  of  evidence  and  the  quantification  of 
damages  are  relaxed,  enlarging  the  scope  of  court  discretion;  finally,  while 
preserving  the  adversarial  structure  of  the  trial  and  the  neutrality  of  the  judicial 
authorities,  the  court  is  often  allowed  to  provide  some  procedural  support  to  the 
parties and to identify relevant information to decide the case. 

In March 2005, the Commission adopted a proposal for a Regulation establishing a 
European small claims procedure120, which would apply also to infringements of EU 
competition law. The proposal suggests making this optional procedure available to 
litigants as an alternative to the already existing procedures under national law. The 
European Small Claims Procedure is intended to simplify, speed up and render less 
costly  litigation  concerning  claims  where  the  total  value  does  not  exceed  €2000.  It 
would  give  consumers  the  possibility  to  commence  the  procedure  by  completing  a 
standard  claim  form,  without  the  assistance  of  a  lawyer.  The  court  is  granted 
discretion to determine the means of proof and the extent to which evidence is taken. 
Finally,  it  is  specifically  provided  that  when  the  unsuccessful  party  is  a  natural 
person not represented by a lawyer, there will be no obligation to reimburse the legal 
expenses incurred by the counterpart. 

191. 

The  development  of  appropriate  simplified  judicial  procedures  could  arguably 
facilitate  consumer  claims  for  damages  arising  from  infringement  of  European 
antitrust  law.  Special  rules  on  costs  and  legal  assistance  could  arguably  reduce  the 
financial  burden  that  consumers  have  to  face  when  litigating  competition  cases. 
Moreover, the uncertainty as to the practical outcome of the case can be minimised 
by specific provisions governing the award and quantification of damages as well as 
the evidence threshold that consumer claimants have to meet. 

120 

Commission’s proposal for a Regulation of the European Parliament and of the Council establishing a 
European Small Claims Procedure, COM(2005)87 of 15 March 2005. 

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192. 

193. 

194. 

In addition to the European Small Claims Procedure, it may be appropriate to offer 
consumers means of collective redress.121 In that respect, distinction could be made 
between  representative  action,  collective  action  and  public  interest  litigation.  A 
‘representative  action’  is  an  action  brought  by  a  representative  natural  or  legal 
person,  such  as  a  consumer  organisation,  on  behalf  of  a  group  of  identified 
individuals,  usually  its  members,  and  aimed  at  protecting  the  individual  rights  of 
those represented. A ‘collective action’ is brought on behalf of a group of identified 
or identifiable individuals and aimed at protecting interests of those represented.122 A 
further variant is the ‘public interest litigation’, which is not done on behalf of any 
identified  individuals but  for the benefit of the public at large. The  award resulting 
from any such action could be made to the natural or legal person who brought the 
action or to those who suffered the damage. 

Collective  and  representative  actions  are  particularly  important  in  the  context  of 
defending  consumer  interests.  However,  also  beyond  the  specific  context  of 
consumer claims, collective and representative actions can improve the efficiency of 
the litigation process by consolidating a potentially large number of different actions 
into one action. This saves time and cost and avoids the risk of tactical litigation (one 
group of claimants waiting to see how a prior case goes before bringing an action). 
Moreover,  some  form  of  organised  collective  action  can  be  important  in  balancing 
the  resources  and  bargaining  position  of  otherwise  diffuse  claimants  against  well-
organised and potentially resource-rich defendants. 

Easier  enforcement  of  legal  rights  and  increased  ability  to  recover  economic  losses 
are essential to bringing European citizens and their associations closer to European 
laws and policies In order to achieve such objective, there is a range of actions under 
way or under discussion at EU level and in the OECD forum123, which go beyond the 
area  directly  dealt  with  in  the  Green  Paper.  In  particular,  the  Commission  has 
recently  commissioned  a  study  in  order  to  analyse  and  evaluate  the  means  of 
consumer redress, other than redress through ordinary judicial proceedings, available 
in  the  EU  Member  States,  as  well  as  in  other  jurisdictions,  for  both  national  and 
cross-border  disputes.  The  scope  of  the  analysis  will  encompass  small  claims 
procedures and means of collective redress, such as representative actions, collective 
actions  and  class  actions.  The  study  will  cover  all  alternative  means  of  redress 

121 

122 

123 

See  Advocate  General  Jacobs  in  his  opinion  in  case  C-195/98  Österreichischer  Gewerkschaftsbund  v 
Austria  [2000]  ECR  I-10497,  para  47:  “Collective  rights  of  action  are  an  equally  common  feature  of 
modern  judicial  systems.  They  are  mostly  encountered  in  areas  such  as  consumer  protection,  labour 
law,  unfair  competition  law  or  protection  of  the  environment.  The  law  grants  associations  or  other 
representative bodies the right to bring cases either in the interest of persons which they represent or in 
the public interest. This furthers private enforcement of rules adopted in the public interest and supports 
individual complainants who are often badly equipped to face well organised and financially stronger 
opponents.” 
A  collective  action  differs  from  an  opt-out  class  action,  where  an  individual  can  bring  an  action  on 
behalf of an unidentified class of persons. An injured party is thus assumed to be included in the class 
unless he chooses not to be, which may result in the certification of very large classes. It also differs 
from  a  joint  action,  where  the  claimants  or  the  judge  join  individual  claims  because  of  some  link 
between  them  (e.g.  same  defendant  or  damages  resulting  from  same  facts).  The  joining  of  claims  is 
procedural and at the end, although a single judgment may be made covering the cases of all claimants, 
awards will be made individually to the different claimants. 
See the OECD background report for the workshop on consumer dispute resolution and redress in the 
global market place, at http://www.oecd.org/dataoecd/59/21/34699496.pdf.  

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available in business-to-consumers disputes, thus including competition cases, which 
will  therefore  be  considered  by  the  study  in  the  wider  context  of  consumer  redress 
mechanisms.  The  results  of  that  study  will  become  available  in  2006.  The 
Commission will take due account of the results and decide which actions need to be 
taken in order to improve the effectiveness of consumer redress.  

COLLECTIVE  AND  REPRESENTATIVE  ACTIONS  FOR  ANTITRUST  DAMAGES  CASES  IN 
THE MEMBER STATES 

In  some  Member  States,  consumer  and  other  representative  organisations  already 
have successful experience of litigation in areas other than competition law, although 
in several cases such possibility is limited to seeking injunctive relief, with no award 
of  damages.124  It  is  understood  that  in  some  countries  collective  or  representative 
actions have been brought before the national courts, principally in financial services 
(for  example  cases  relating  to  banking  and  credit  cards).  Often  the  specific  plea 
appears to be for unfair contractual terms. It is understood that these actions do not 
have a sector-specific legal basis but are brought under general standing provisions 
of  national  law.  Indeed,  in  many  Member  States,  general  procedural  laws  grant 
standing for representative bodies to bring actions on behalf of diffuse interests, often 
where some specific conditions are met. 

One  of  the  most  elaborated  national  legislation  in  this  respect  is  the  2002  Swedish 
Group  Proceedings  Act,  which  provides  for  actions  to  be  brought  by  the 
representative  of  a  group.125  A  group  action  may  be  instituted  as  a  private  group 
action, an organisation action or a public group action. A private group action may 
be instituted by a natural or legal person who himself has a claim that is subject to 
the action. An organisation action may be instituted by a non-profit association that 
protects  consumer  or  wage-earner  interests  in  disputes  between  consumers  and  a 
business  operator.  Finally,  a  public  group  action  may  be  instituted  by  an  authority 
that is suitable to represent the members of the group and that has been allowed by 
the  government  to  institute  such  actions.126  For  a  group  action  to  be  permitted  the 
circumstances  on  which  the  action  is  founded  must  be  common  or  similar  to  the 
entire group. Also, it must be clear that the larger part of the claims cannot equally 
well  be  pursued  by  individual  actions  by  the  members  of  the  group.  Group  actions 
are opt-in, which means that a claimant must choose to be included as a member of 
the group. Only such members who have given a written notice to the court to opt-in 
can participate in the proceedings as passive members and are then bound by a final 

Many of these provisions have a Community law origin, since they are adopted in implementation of 
European Directives in the field of consumer injunctions and unfair contract terms (e.g. Directive 93/13 
on  unfair  terms  in  consumer  contracts,  OJ  1993  L  95/29  and  Directive  98/27  on  injunctions  for  the 
protection  of  consumers’  interests,  OJ  1989  L  166/51),  protection  of  the  environment  (e.g.  Directive 
2003/35 providing for public participation in respect of the drawing up of certain plans and programmes 
relating  to  the  environment  and  amending  with  regard  to  public  participation  and  access  to  justice 
Council  Directives  85/337/EEC  and  96/61/EC,  OJ  2003  L  156/17)  and  protection  of  intellectual 
property rights (e.g. Directive on the enforcement of intellectual property rights, as note 26 above). 
The 
http://www.sweden.gov.se/content/1/c6/02/77/67/bcbe1f4f.pdf. 
In Germany, Section 34 GWB allows the German competition authority (Bundeskartellamt) to order an 
undertaking that infringed the competition rules to pay an amount which corresponds with the profits 
made as a result of the antitrust infringement. 

Proceedings 

(2002:599) 

available 

Swedish 

Group 

Act 

at 

is 

B. 

195. 

196. 

124 

125 

126 

EN 

54 

   EN 

 
                                                 
decision  of  the  court.  The  passive  group  members  have  as  a  general  rule  no 
obligation  to  pay  any  legal  cost  to  a  successful  defendant.  In  relation  to  the 
representative  claimant,  the  normal  rule  under  Swedish  procedural  law  applies  that 
the loser has to pay the winning party’s cost. 

197. 

So  far,  only  one  Member  State  has  specific  legislation  allowing  for  collective  or 
representative  actions  for  damages  in  case  of  breach  of  the  competition  rules.127  In 
the UK, consumer associations specified by the Secretary of State can bring actions 
for damages on behalf of two or more individual consumers before the CAT.128 Such 
claims can only be brought on the back of an infringement decision made by a public 
authority (either the OFT or the European Commission). 

C. 

POLICY OPTIONS 

Option 25: A cause of action for consumer associations 

198. 

199. 

200. 

It  remains  to  be  seen  to  what  extent  existing  simplified  judicial  procedures  already 
available  at  national  level  –  eventually  in  combination  with  the  European  Small 
Claims Procedure proposed by the Commission – can adequately tackle the obstacles 
that  hinder  access  to  justice  in  competition  cases.  It  appears  that  there  is  scope  to 
introduce  additional  means  of  collective  consumer  redress,  such  as  a  collective  or 
representative action by consumer associations or other qualified entities. Consumer 
association  actions  are  not  unfamiliar  to  Community  and  Member  State  law, 
although they are often confined to injunctive relief, without any award of damages. 
It should be considered whether to make provision for a collective or representative 
action  by  reference  to  competition  law,  i.e.  an  entity  representing  the  interests  of 
consumers in competition cases. A specific legal basis for actions to be brought by 
consumer associations or other qualified entities in the competition field would have 
the advantage of greater clarity, as well as possibly defining the relationship of such 
actions to other issues such as the standing of direct or indirect purchasers.  

Further  thought  would  need  to  be  given  to  issues  such  as  standing  (a  possible 
registration  or  authorisation  system  or  the  use  of  a  legal  standing  test  directly 
applicable  by  the  court),  the  distribution  of  damages  (whether  damages  go  to  the 
association  itself  or  to  its  members),  and  the  quantification  of  damages  (damages 
awarded to the association could be calculated on basis of the unlawful gain of the 
defendant, whereas damages awarded to the members are calculated on basis of the 
individual damage suffered). 

Any  provision  of  specific  forms  of  collective  organisation  of  claims  for  antitrust 
litigation will need to be carefully co-ordinated with other initiatives undertaken by 
the  European  institutions  as  well  as  the  Member  States,  aimed  at  improving 
consumers’  access  to  justice.  Enforcement  of  consumer  rights  in  competition  cases 
must be appropriately set in the wider context of consumer redress mechanisms. The 

127 

128 

In France, a working group set up by President Chirac and composed of representatives of consumers, 
industry and government, is about to deliver its final report on the introduction in France of collective 
actions  in  the  field  of  consumer  law.  The  report  may  advise  to  extend  the  possibility  of  collective 
actions to the field of competition law. 
Section 47B of the Competition Act 1998, as inserted by section 19 of the Enterprise Act 2002. 

EN 

55 

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Commission is following closely the developments in this field to decide what sort of 
EU-level action might in future be considered in order to ensure the consistency and 
effectiveness of the regulatory framework. 

Option  26:  Some  provision  for  collective  action  for  groups  of  purchasers  other  than  final 
consumers 

201. 

Arguably,  existing  procedures  for  consolidation  and  joining  of  claims  protect  to 
some extent the interests of claimant groups other than final consumers. However, it 
is conceivable that some other form of opt-in group action may be desirable for the 
protection  of  groups  of  litigants  other  than  final  consumers.  Such  litigants,  for 
example at the retail stage in the production or distribution chain, may be otherwise 
unaware of their claim and require organisation into a group to make the cost/benefit 
analysis as to the prospects of litigation more attractive. 

EN 

56 

   EN 

 
SECTION VII: COSTS OF ACTIONS 

A. 

INTRODUCTION 

202. 

The  bringing  of  an  action  for  damages  entails  costs.  Economically  speaking,  these 
costs represent different expenditures necessary for the work of the people involved 
in bringing the action as well as other material costs. Although all civil actions have 
a  cost,  competition-related  damage  claims  may  be  particularly  costly  as  they  are 
generally  more  complex  and  thus  more  time-consuming  than  other  kinds  of  civil 
action.  

203. 

The  Study  has  identified  cost  exposure  as  one  possible  obstacle  for  damages 
actions.129 The Study distinguishes two kinds of risks associated with costs rules: 

•  The obligation for a claimant to pay certain fees upfront might make it difficult as 
such to bring an action if these fees are high. Although normally the fees can be 
recovered from the losing party, it might be difficult for a claimant to put up the 
required sum of money with the hope of getting it back at the end of a – possibly 
long – trial. 

•  The application of the “loser pays” principle has ambiguous consequences for the 
likelihood  of  a  (possible)  claimant  to  bring  an  action:  on  the  one  hand  the 
principle will allow him to recover his own costs from the defendant if he wins his 
action. On the other hand, he might face paying his own expenses as well as those 
of the defendant if he loses his case. As mentioned above, the application of the 
principle  is  especially  problematic  in  unclear  cases  and  might  serve  in  such  a 
situation as a disincentive for bringing an action. 

All  the  relevant  jurisdictions  have  rules  governing  the  allocation  of  costs  in  civil 
proceedings. These rules provide that the costs associated with a civil action shall be 
borne  by  one  of  the  parties.  Most  of  the  time  (as  will  be  shown  in  greater  detail 
below)  these  rules  start  from  the  assumption  that  costs  should  be  borne  by  the 
unsuccessful  litigant.  It  should  be  stressed  however,  that  there  is  a  difference 
between  those  legal  rules  regarding  cost  recovery  and  the  real  costs  of  an  action: 
most  of  the  recovery  rules  for  example  limit,  to  some  degree,  the  amount  of  fees 
which can be recovered for the work of a lawyer or of an expert witness.  

THE  OBLIGATION  OF  THE  MEMBER  STATES  TO  PROVIDE  FOR  EFFICIENT  COST 
RULES GUARANTEEING ACCESS TO COURTS 

to  Article  6  of 

According 
the  European  Convention  on  Human  Rights 
(”Convention”),  everyone  is  entitled  to  a  fair  hearing  by  a  tribunal  in  the 
determination  of  his  civil  rights  and  obligations.  This  principle  is  applicable  to 
actions  for  damage  claims  in  competition-related  cases  as  these  concern  civil 
obligations  of  the  parties.  According  to  settled  case  law  of  the  European  Court  of 

204. 

B. 

205. 

129 

Comparative Report, page 116. 

EN 

57 

   EN 

 
                                                 
206. 

207. 

Human  Rights  (“ECHR”),  the  right  of  access  guaranteed  by  Article  6  of  the 
Convention  is  not  an  absolute  one.  The  contracting  parties  to  the  Convention  have 
the right to formulate rules of access to civil tribunals if these rules serve a legitimate 
interest and are proportional to the attainment of that interest. The ECHR has ruled 
on the question of cost recovery in this regard. 

In its 2001 decision in the case Kreuz v Poland, the ECHR considered whether the 
collection  of  court  fees  was  contrary  to  the  Convention.130  The  Court  declared  that 
the collection of court fees as such was not contrary to Article 6 of the Convention as 
such a requirement was justified by a legitimate aim, was proportionate and did not 
infringe the “essence” of the right conferred by Article 6. However, the Court found 
that  the  amount  of  court  fees  demanded  was  excessive  and  violated  Article  6.  The 
national  court  had  demanded  court  fees  of  PLN  100,000,000  –  an  amount  equal  to 
the  average  annual  income  in  Poland  at  that  time.  The  Polish  court  had  refused  to 
modify  this  sum,  stating  that  as  a  businessman  the  claimant  was  in  a  position  to 
provide  this  sum.  The  European  Court  of  Human  Rights  found  that  this  infringed 
Article  6  of  the  Convention,  as  the  national  court  had  based  its  decision  on 
guesswork as to the financial situation of the claimant and had not tried to establish 
clearly whether he was indeed – as he himself had claimed – unable to provide the 
court  fees  demanded.  What  is  interesting  about  the  decision  of  the  ECHR  is  that  it 
refers  strictly  to  the  claimant's  financial  situation  –  it  is  with  reference  to  that 
situation that the question should be answered whether the court fees demanded are 
excessive. The European Court of Human Rights adopts a subjective understanding 
of the issue, in which costs exposure for access to tribunals is seen as a – possibly 
legitimate – limitation or condition of that right of access. 

Similarly, the ECHR has ruled that Article 6 of the Convention guarantees, in certain 
circumstances a right to legal aid. In its 2005 decision in the case of Steel and Morris 
v United Kingdom, the ECHR considered that there was no absolute right to legal aid 
in  all  proceedings  and  that  it  was  not  incumbent  on  the  state  to  guarantee  a  total 
equality  of  arms  between  the  parties.131  The  Court  found,  however,  that  the 
circumstances  in  that  particular  case,  which  involved  a  libel  action  brought  by  the 
McDonald’s  company  against  two  litigants  of  moderate  income,  commanded  that 
these  defendants  be  given  legal  aid  by  the  United  Kingdom  in  order  to  ensure  the 
possibility  of  an  effective  defence.  The Court  based  its  decision  specifically  on  the 
drastic  difference 
the 
consequences of this difference for the effective possibility of the defendants to deal 
with the claim brought against them. Transposed to the field of competition law, this 
case  might  well  indicate  that  there  is  an  obligation  to  grant  legal  aid  in  those 
circumstances in which such a profound difference in resources exists.132  

in  resources  between  claimant  and  defendants  and 

208. 

The  Community  courts  have  developed  a  case-law  on  liability  for  infringement  of 
Community rights. The decision in Courage is just one of those cases. The general 
principles of these cases are similar: Community law provides for a right and in the 

130 
131 

132 

ECHR, Kreuz v Poland, (Application No. 28249/95), judgment of 19 June 2001.  
ECHR,  Steel  and  Morris  v  United  Kingdom,  (Application  No.  68416/01),  judgment  of  15  February 
2005. 
See also in a similar context Directive 2003/8 to improve access to justice in cross-border disputes by 
establishing minimum common rules relating to legal aid for such disputes, OJ 2003 L 26/41. 

EN 

58 

   EN 

 
                                                 
absence of EC law on the matter, it is for the legal system of the Member States to 
provide  the  “procedural  modalities”  for  the  bringing  of  the  corresponding  action. 
These legal rules of the Member States in this respect are subject, on the one hand, to 
the principle of equivalency (rules with regard to EC law may not be more stringent 
than  those  for  violations  of  national  law)  and  to  the  principle  of  effectiveness  (a 
certain minimum effectiveness of the remedy under national law and its procedural 
regulations must be guaranteed).  

209. 

In its 2001 decision Clean Car Autoservice v Stadt Wien & Republik Österreich, the 
ECJ applied these principles to the question of cost recovery.133 The original dispute 
concerned an infringement by Austria of the freedom of movement guaranteed under 
EC law. The Austrian Supreme Administrative Court (Verwaltungsgerichtshof) had 
referred the case to the ECJ under Article 234 EC and the ECJ had passed judgment 
on  that  application.134  In  accordance  with  its  rules  of  procedure  the  ECJ  had 
determined  that  the  question  of  cost  recovery  was  for  the  national  court  to  decide. 
Charged  with  making  this  decision,  the  Austrian  court  had  referred  the  question  to 
the ECJ for a preliminary ruling.  

210.  While the ECJ did not find an infringement of the principle of effectiveness in this 
particular case, it made it clear that the principle was applicable with regard to costs 
recovery. As damages claims are a right conferred by Community law, the cost rules 
governing  those  actions  must  conform  to  the  principle  of  effectiveness,  e.g.  they 
must not render impossible or excessively difficult the bringing of such a claim. As 
far as can be ascertained, there has been no case as of yet in which a cost rule from 
one of the Member States was found to have infringed the above-mentioned principle 
of effectiveness. It should, however, be stressed that the application of that principle 
to the kind of cases here considered means that – under applicable Community law – 
the  Member  States  are  under  a  legal  obligation  to  design  their  cost  rules  in  such  a 
way  that  actions  for  damage  claims  can  “effectively”  be  brought  before  the 
competent national courts.  

C. 

COST RULES OF THE COMMUNITY COURTS 

211. 

The  Community  courts  themselves  have  rules  regarding  costs  recovery  in 
proceedings brought before them. The main principles of these rules are as follows: 

•  In general, there are no court fees to be paid for proceedings before either the ECJ 

or the CFI.135 There is only an exception for vexatious actions. 

•  Recoverable  costs  include  lawyer’s  fees  or  the  expenses  of  other  agents  or 
advisers (with the exception of Commission staff) as well as expenses incurred by 
witnesses.  Costs  for  certain  technical  tasks  performed  by  the  Courts  (such  as 
authenticated copies of decisions, etc…) may also be recovered. 

133 
134 
135 

Case C-472/99 Clean Car Autoservice v Stadt Wien and Republik Österreich [2001] ECR I-9687. 
Case C-350/96 Clean Car Autoservice v Landeshauptmann von Wien [1998] ECR I-2521. 
Rules of Procedure of the Court of Justice, Art. 72; Rules of Procedure of the Court of First Instance, 
Art. 90. 

EN 

59 

   EN 

 
                                                 
•  The  Courts  rule  on  cost  recovery  in  their  final  decision.  An  exception  to  this  is 
cost recovery in proceedings for a preliminary ruling, in which the ECJ leaves the 
question of cost recovery to the court of the Member State who has referred the 
question to the ECJ.  

•  An  order  for  cost  recovery  is  only  made  on  application  by  a  party.  If  no  such 

application is made, each party will bear its own costs. 

•  In  general,  the  Court  will  order  the  unsuccessful  party  to  bear  the  costs  of  the 
action. There are some exceptions to this rule (especially for vexatious actions). 

•  There is no official tariff for the individual items recoverable under such a ruling. 
The Courts will consider the complexity of the case and its economic importance 
in fixing the recoverable lawyer’s fees. An example of how the Court decides the 
recoverability of certain  items is  provided in the Airtours decision, in  which  the 
Court  discussed  in  depth  whether  the  costs  claimed  were  indeed  necessary  with 
regard to the general importance of the case and its economic value.136 Regardless 
of  the  complexity  of  the  case,  however,  the  Court  will  generally  only  regard  as 
recoverable the fees of one single lawyer per party. 

D. 

COST RULES OF THE COURTS OF THE MEMBER STATES 

212. 

The  legal  rules  regarding  costs  recovery  in  the  Member  States  are  of  great 
complexity  and  differ  considerably  in  their  detail.  Some  common  themes  emerge 
from a comparison of these rules: 

•  All Member States charge court fees which in most cases are paid upfront by the 

claimant. 

•  All  Member  States  follow  the  rule  that  the  unsuccessful  litigant  has  to  bear  the 
costs  of  the  civil  action.  In  cases  of  partial  success,  the  costs  are  either  divided 
between  the  parties  or  –  in  some  instances  –  borne  by  one  party  alone.  Some 
Member States make an exception from the “loser pays” principle in cases where 
the legal (or factual) assessment of the dispute was difficult. 

•  The amount of recoverable fees both for lawyers as well as for experts and other 

witnesses is often limited by statutory fee schemes.  

•  Both the court fees and the fees for lawyers and witnesses are generally calculated 
with reference to the economic value of the case. A high-value case may therefore 
lead  to  high  court  fees  (to  be  paid  upfront  in  most  cases)  as  well  as  to  the 
possibility of exposure to substantial fees for lawyers, to be borne (in most cases 
for both sides) by the unsuccessful litigant.  

•  In  most  Member  States  some  form  of  legal  aid  insurance  exists.  Only  in  three 
Member  States  does  such  insurance  not  exist  at  all,  or  does  not  cover  cases  of 
antitrust law (namely Cyprus, Germany and Malta). 

136 

Case T-342/99 DEP Airtours v Commission, order of 28 June 2004, not published. 

EN 

60 

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213. 

Particularly interesting in this respect is the evolution in some Member States of the 
“loser pays” principle. As mentioned above, this principle is applied in one form or 
the  other  in  all  Member  States.  In  some  Member  States,  cost  rules  for  some 
procedure foresee that the unsuccessful claimant will be ordered to pay costs only if 
his  action  was  unreasonable.  Such  a  rule  is  particularly  useful  in  cases  where  the 
outcome of litigation cannot be easily assessed. In such cases, the “reasonableness” 
rule  might  act  to  lessen  the  risk  of  litigation  for  claimants.  In  a  similar  fashion, 
Article 14 of the draft Regulation establishing a European Small Claims Procedure, 
states that the unsuccessful party shall bear the cost of the proceedings, except where 
this  would  be  unfair  or  unreasonable,  thus  limiting  cost  recovery  to  the  notion  of 
reasonableness.137  

E. 

COST RULES AS INCENTIVES FOR BRINGING AN ACTION 

214. 

215. 

216. 

217. 

Cost  rules  play  an  important  role  in  being  an  incentive  –  or  disincentive  –  for 
bringing an action. While it is clear that the single most important issue in deciding 
whether  to  bring  an  action  is  the  likelihood  of  winning,  rules  on  cost  recovery  can 
either give special incentives for going to court, or can act as a restraining influence. 

As mentioned above, the most commonly applied rule for cost recovery is the “loser 
pays” principle. The application of this principle will neither act as an incentive nor 
as a disincentive in those cases in which the claimant can be reasonably sure about 
winning  his  case  and  in  which  the  exact  rules  on  cost  recovery  will  allow  the 
successful claimant to recover the entirety (or a very large part) of his actual costs.  

The application of the “loser pays” principle will, however, be problematic in those 
cases in which very small amounts of damages are being claimed. In such a situation 
the  actual  cost  of  the  action  might  be  disproportionate,  even  with  regard  to 
recoverability  under  cost  rules.  This  is  especially  true  in  those  Member  States  in 
which recoverable lawyer’s fees are defined by reference to the value of the claim. 
The  introduction  of  collective  proceedings  can  be  helpful  in  making  these  actions 
worthwhile by bundling small damage claims together.138 

The application of the “loser pays” principle will also be problematic in those cases 
in which the outcome of the case cannot be assessed upfront. In such a situation, it 
will be very difficult for a possible claimant to know whether he will be in a position 
to  pay  all  the  costs  or  in  a  position  to  recover  his  own  costs.  Although  this  is 
probably  true  for  a  number  of  areas  of  the  law,  the  dilemma  is  likely  to  be 
particularly  acute  for  damage  claims  in  competition-related  cases:  these  often  will 
depend on complex factual (as well as possibly legal) assessments and may therefore 
“go either way”. In terms of cost recovery this will put the risk associated with this 
uncertainty on the claimant, as it is he who will have to begin the action. Some of the 
Member States allow exceptions from the “loser pays” principle in cases in which the 
claim under review is difficult or particularly complex. But the majority of Member 
States applying this principle do  not allow  for such a distinction and will order the 
losing side to pay costs even if the outcome of the trial was difficult to assess at its 

137 

138 

Proposal for a Regulation of the European Parliament and of the Council establishing a European Small 
Claims Procedure, COM(2005) 87 final. 
On collective actions, see Section VI. 

EN 

61 

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beginning.  As  mentioned  above,  a  cost  rule  stating  that  the  unsuccessful  claimant 
shall only bear the costs if he acted unreasonably by bringing the action can arguably 
play a role in addressing those situations.  

218. 

Some  jurisdictions  provide  further  incentives  for  bringing  an  action  of  damages. 
Specific cost rules can also serve to provide an incentive. For example, contingency 
fees are a strong incentive because the financial risk for bringing the action is borne 
not by the claimant but by private attorneys. The experience of US law suggests that 
the  existence  of  contingency  fees  is  a  factor  in  the  emergence  of  a  claimant  bar 
strongly  associated  with  bringing  actions  for  damages.  It  must  be  underlined, 
however,  that  contingency  fees  are  not  allowed  in  some  Member  States  and  are 
regulated in others. 

F. 

POLICY OPTIONS 

219. 

As  shown  above,  Community  law  as  well  as  the  European  Convention  on  Human 
Rights demand of the Member States that they regulate costs recovery in such a way 
that  access  to  courts  in  civil  matters  is  not  unduly  restricted  and  that  effective 
remedies exist for violations of rights derived from Community law. The rules which 
exist  in  the  Member  States  differ  considerably.  Beyond  the  formal  content  of  the 
rules, there are appreciable differences in the economic impact of these cost rules. In 
some Member States, for example, court fees are hardly important, whereas in others 
they  might  be  calculated  as  a  percentage  of  the  claim  brought  and  this  may  result, 
where no cap exists, in high amounts of court fees, usually to be paid upfront.  

Option 27: Limitation of cost exposure of the claimant 

220. 

In order to prevent the disincentive effect of the “loser pays” principle in those cases 
in  which  the  outcome  can  not  be  clearly  assessed  at  the  outset  of  the  action,  one 
could make cost recovery dependent always on a court order and give the court the 
power to grant a protection from costs recovery even if the claimant fails to win the 
case on the merits. Such “cost protection order” could be given at the outset of the 
action. The risk of facing cost recovery from the defendant could therefore be limited 
in  those  cases  by  a  grant  from  the  court  at  the  beginning  of  an  action  of  an  order 
ensuring that no cost exposure will take place. Such an order could also be used to 
protect  economically  weak  parties  from  cost  exposure,  thereby  strengthening  their 
right of access to a court for their damages claims. A similar idea would consist in 
adopting  the  rule  that  costs  will  only  be  ordered  against  a  claimant  who  acted 
manifestly  unreasonable  by  bringing  the  action.  Such  a  rule  would  work  to  protect 
claimants  while  at  the  same  time  working  as  a  mechanism  against  unmeritorious 
litigation.  

EN 

62 

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SECTION VIII: COORDINATION OF PUBLIC AND PRIVATE ENFORCEMENT 

A. 

INTRODUCTION 

221. 

222. 

B. 

223. 

Competition law is enforced both by way of public enforcement as well as by way of 
private  enforcement.  A  strengthening  of  damages  actions  for  infringement  of 
competition law does not in any way signify less public enforcement by competition 
authorities.  It  is,  however,  necessary  to  examine  the  coordination  of  public  and 
private  enforcement  procedures.  In  Section  II  of  this  paper,  the  importance  of 
infringement decisions by competition authorities was examined and an option was 
put forward concerning the role to be played by the decisions of NCAs (see Option 8 
above).  Furthermore,  the  coordination  of  public  and  private  enforcement  decisions 
plays an important role in determining the adequate regime of limitation/prescription 
for  civil  claims  (see  below  in  Section  IX).  Of  particular  importance  for  the 
coordination of public and private enforcement is the existence of leniency programs 
operated by competition authorities.  

One of the key aspects of public enforcement of competition law is the existence of 
leniency programs. The common characteristic of leniency programs is the fact that 
an undertaking is granted either immunity from fines or a reduction of a fine if that 
undertaking  has  disclosed  significant  information  about  a  secret  cartel  to  the 
competition authorities. The granting of immunity or a reduction of the fine depends 
both on the quality of the information disclosed and on the timing of the submission 
of the information.  

LENIENCY  AND  CIVIL  ACTIONS  AS  PART  OF  AN  OPTIMUM  DETERRENCE  OF 
INFRINGEMENTS 

Both leniency programs and civil actions for damages are part of the general fabric 
of competition law enforcement. Damages claims and fines imposed by competition 
authorities  are  the  consequences  of  an  infringement  of  EC  antitrust  rules.  In  some 
Member  States,  the  infringement  of  competition  law  can  also  lead  to  criminal 
sanctions against those involved in anti-competitive behaviour. The primary purpose 
of these remedies lies in the prevention of cartels being entered into in the first place. 
Undertakings  understand that anti-competitive agreements  are  illegal under EC  and 
national competition law and that infringement of these rules carries great risks both 
in  terms  of  fines  and  in  terms  of  civil  liability,  with  criminal  sanctions  (where 
applicable)  serving  to  strengthen  the  effect  of  these  remedies.  By  making  the 
discovery  of  secret  cartels  likely,  the  leniency  program  is  part  of  this  system  of 
deterrence.  The  likelihood  of  being  found  out  because  of  leniency  applications  and 
the  strength  of  both  public  enforcement  (fines,  criminal  sanctions)  and  private 
enforcement (civil liability through damage claims) will serve to deter undertakings 
from  entering  into  anti-competitive  agreements,  thus  driving  the  number  of  cartels 
down.  Fewer  cartels  mean  fewer  losses  suffered  by  the  victims  of  anti-competitive 
agreements.  A  strengthening  of  private  enforcement  thus  serves  to  strengthen  the 
deterrence system as such. 

EN 

63 

   EN 

 
C. 

RELATIONSHIP BETWEEN LENIENCY PROGRAMS AND DAMAGE CLAIMS 

224. 

In its notice on leniency the Commission specifically states: 

225. 

226. 

227. 

228. 

229. 

“The  fact  that  immunity  or  reduction  of  fines  is  granted  cannot  protect  an 
undertaking from the civil law consequences of its participation in an infringement of 
Article 81 EC.”139 

The  benefit  which  an  undertaking  receives  from  the  operation  of  the  leniency 
program  is  therefore  limited  to  those  remedies  which  the  Commission  itself 
administers  and  does  not  have  an  influence  on  the  civil  liability  towards  other 
undertakings or persons. 

It is, however, important to underline that unlike in the US system, it is not part of 
the  conditions  for  a  valid  leniency  application  under  current  EC  law  that  the 
applicant undertakes to indemnify those who have suffered a loss as a result of anti-
competitive  practices.  An  undertaking  which  fulfils  the  conditions  set  out  in  the 
Leniency  notice  will  be  granted  immunity/reduction  of  the  fine;  indemnification  of 
losses  suffered  by  third  parties  is  not  part  of  those  conditions.  Similarly,  national 
leniency  programs  do  not  typically  contain  an  obligation  to  indemnify  those  who 
have suffered losses nor do they alter the conditions for damages claims under civil 
law.  

It is possible that the very existence of leniency programs will make damage claims 
more  frequent.  Some  of  the  ongoing  antitrust  damages  litigation  stems  from  cartel 
procedures  which  were  started  or  aided  by  leniency  applications.  It  must  be 
underlined that any such increase only concerns cases of follow-on actions and only 
such  cases  for  which  leniency  programs  exist.  Vertical  arrangements  or  Article 82 
cases for example may not be covered by the leniency programs. 

The use made by competition authorities of the information supplied by the leniency 
applicant in motivating their decision can lead to (at least partial) disclosure of that 
information.  Competition  authorities  have  to  give  the  factual  background  of  their 
decisions.  The  Commission  may  use  the  information  supplied  under  the  leniency 
program  to  motivate  its  decisions.  The  information  contained  in  the  decision  will 
allow the claimant to offer a detailed account of the infringing acts by the defendant. 
It  will  be  effectively  impossible  for  a  cartel  member  to  defend  himself  on  the 
grounds  that  there  has  been  no  infringement.  The  Commission  decision  may  also 
offer the claimant a factual starting point for the quantification of damages.  

The leniency applicant is like the other cartel members subject to a decision by the 
Commission  finding  that  the  applicant  has  infringed  EC  antitrust  rules.  If  not 
appealed successfully to the Community courts, such a decision by the Commission 
will have a legally binding effect on the courts of the Member States deciding on the 
same infringement as part of a decision on a damages claim (Art. 16 of Regulation 
1/2003).  

139 

Commission notice on immunity from fines and reduction of fines in cartel cases (“Leniency notice”), 
OJ 2002 C 45/3, para 31. 

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230. 

231. 

Another possible influence of the leniency program on damages claims is the use of 
documents prepared for the leniency application as evidence in civil trials. The actual 
confession  made  by  the  applicant  undertaking  must  be  distinguished  in  this  respect 
from  pre-existing  documents  submitted  by  the  applicant  together  with  that 
confession. As part of its leniency program, the Commission accepts oral corporate 
statements.  In  case  such  an  oral  statement  has  been  given  by  the  undertaking,  the 
leniency applicant will not have in his own files a copy of his corporate statement. In 
those cases, however, in which the leniency applicant has made a written statement 
and  has  kept  a  copy  of  the  application,  it  depends  on  the  applicable  national  law 
whether he has to turn over these documents to a claimant.  

It has been argued that the prospect of damages claims could constitute a disincentive 
for leniency applicants and thus exercise a negative effect on public enforcement in 
the field of cartel fighting. Some effect is certainly not to be excluded. However, the 
existence  of  a  negative  effect  is  by  no  means  certain  given  the  fact  that  a  cartel 
member  is  already  today  exposed  to  civil  claims  and  does  not  want  to  forgo  his 
chance to at least reduce his liability of fines in favour of some other cartel member 
who  may  at  any  time  choose  to  apply  for  leniency  in  which  case  the  potential 
applicant would be exposed to both fines and civil damages. However, any measure 
which  optimises  the  combined  deterrent  effect  of  leniency  programs  and  private 
enforcement should be considered.  

D. 

POLICY OPTIONS 

232. 

The  consideration  of  these  diverse  influences  between  the  operation  of  leniency 
programs  and  damages  claims  leads  to  several  policy  options.  These  options  are 
designed  to  ensure  that  leniency  programs  and  the  rules  on  damages  claims  are 
coordinated  in  such  a  way  that  the  underlying  aims  are  optimally  achieved.  As 
mentioned above, civil liability and leniency programs pursue a common goal. 

Option 28: Exclusion of discoverability of the leniency application 

233. 

234. 

As mentioned above, it is unclear whether the leniency application is discoverable in 
those Member States which have disclosure rules. If the threat of discoverability of 
the confession submitted by the applicant to a competition authority is considerable, 
a  possible  change  would  be  to  specifically  exclude  the  discoverability  of  such  an 
application. Such an exception on discoverability would certainly have to cover the 
actual  corporate  statement  (“the  confession”).  It  must  be  underlined  that  such  an 
exception will only be important in those cases in which a written statement has been 
given and the leniency applicant has kept a copy of his statement.  

A  shield  against  disclosure  of  pre-existing  documents  submitted  by  the  leniency 
applicant together with his statement would not be justified as this would allow the 
applicant  to  use  the  leniency  program  in  order  to  prevent  the  disclosure  of  these 
documents. Thus, the operation of the leniency program would substantially enhance 
the  position  of  the  applying  undertaking  with  regard  to  the  operation  of  disclosure 
rules under national procedural law. It is, however, arguable that the operation of the 
leniency program on the contrary should not worsen that position either. Rather, the 
operation of the leniency program should be neutral with regards to the obligations of 
the  leniency  applicant  under  applicable  national  disclosure  rules.  It  might  therefore 

EN 

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be necessary to exclude not only the actual corporate statement but also to disallow 
that a claimant seeks through disclosure the documents in the form submitted by the 
leniency applicant to a competition authority. Although these documents might still 
be discoverable under other (more general) grounds, it might be particularly harmful 
to the leniency applicant if his choice of documents, as submitted with regard to their 
use in the leniency program, were to become known to the claimants of a damages 
action.  

Option 29: Rebate on damages claim 

235. 

One option would be to grant the successful leniency applicant the option to claim a 
rebate  on  any  damages  claim  facing  him  in  return  for  helping  claimants  bring 
damages claims against all cartel members. The claims against the other infringers, 
who  are  jointly  and  severally  liable  for  the  entire  damage,  remain  unchanged. 
Someone who has been granted leniency from fines could for example, in return for 
helping claimants with evidence, receive a rebate of 50 % on any damages claim in a 
follow-on action. If there was a system of double damages for horizontal cartels, this 
rebate  would  de-double  the  award  for  the  leniency  applicant,  thus  restoring  single 
damages as the content of the claim which he faces.140 

Option 30: Removal of joint liability for the leniency applicant 

236. 

Damages claims are tort claims and under general rules of civil liability undertakings 
which are parties to anti-competitive agreements will be liable for the whole of the 
damage  caused  by  these  agreements.  The  tortfeasors  will  be  jointly  and  severally 
liable for the damage caused by their actions. A possible policy solution would be to 
limit the liability of the leniency applicant to the share of the damage corresponding 
to his share in the cartelized market. 

140 

On doubling of damages, see above at Section IV. 

EN 

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SECTION IX – JURISDICTION AND APPLICABLE LAW 

A. 

JURISDICTION AND CONSOLIDATION OF CLAIMS 

237. 

238. 

239. 

240. 

Jurisdiction of courts to hear cases brought against defendants domiciled in Member 
States  is  governed  by  Community  law.141  Under  Regulation  44/2001,  persons 
domiciled  in  a  Member  State  may  be  sued  in  that  State,  irrespective  of  their 
nationality.142  It  is  the  choice  of  the  claimant  to  seek  to  found  jurisdiction  in  the 
alternative on the basis of Article 5(3). Under Article 5(3), every person domiciled in 
a  Member  State  may  be  sued  in  the  courts  of  the  place  where  the  harmful  event 
occurred or may occur. The place where the harmful event occurred can be either (a) 
the place where the event giving rise to the damage occurred or (b) the place where 
the damage itself occurred (at the choice of the claimant).143  

Under  Article  6(1)  of  Regulation  44/2001,  a  person  domiciled  in  a  Member  State 
may also be sued where he is one of a number of co-defendants, in the courts of the 
place  where  any  one  of  them  is  domiciled,  provided  the  claims  are  so  closely 
connected that it is expedient to hear and determine them together to avoid the risk of 
irreconcilable judgments arising from separate proceedings. Article 6(1) only refers 
to the jurisdiction under Article 2, the jurisdiction defined by domicile.  

The claimant in competition-related litigation has thus a wide variety of jurisdictions 
from  which  to  choose  when  deciding  where  to  launch  his  action.  It  is,  however, 
important  to  stress  that  the  case-law  of  the  ECJ  on  the  interpretation  of  Regulation 
44/2001 (and, where appropriate, on the Brussels Convention, its predecessor) has a 
significant  influence  on  the  parameters  of  that  choice.  For  instance,  in  its  1995 
decision in the Shevill case the ECJ declared that the jurisdiction of the courts where 
the  damage  occurred  under  Article  5(3)  was  limited  to  those  damages  which 
occurred in the Member State thus designated.144 Although this judgment was given 
in the context of a press tort, it is generally accepted that it applies in other tort cases 
as well and would therefore be authoritative in competition cases as well.  

Regulation  44/2001  also  governs  the  coordination  of  existing  and  separate  claims 
filed before the courts of different Member States (lis pendens). Under Article 27, if 
proceedings  concerning  the  same  cause  of  action  and  between  the  same  parties  are 
brought in the courts of different Member States, any court other than the court first 
seized must of its own motion stay its proceedings until the jurisdiction of the court 
first  seized  is  determined.  If  the  jurisdiction  of  the  court  first  seized  is  established, 
any  other  court  must  decline  jurisdiction  in  favour  of  that  court.  Under  Article  28, 

141 

142 

143 

144 

For Denmark, jurisdiction is governed by the Brussels Convention on jurisdiction and the enforcement 
of  judgments  in  civil  and  commercial  matters (OJ  1990 C  189/2),  as amended, which  is  substantially 
similar to Regulation 44/2001. 
Article  2(1)  Regulation  44/2001  on  jurisdiction  and  the  recognition  and  enforcement  of  judgments  in 
civil and commercial matters, OJ 2001 L 12/1. Under Article 15 et seq. of Regulation 44/2001, there are 
special rules on jurisdiction for actions based on a contract concluded by a consumer.  
Case 21/76 Handelskwekerij G. J. Bier v Mines de Potasse d’Alsace [1976] ECR 1735; case C-68/93 
Fiona Shevill and others v Presse Alliance [1995] ECR I-415 at para 20. 
See Shevill, as note 143 above. 

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where  “related  actions”  are  pending  in  the  courts  of  more  than  one  Member  State, 
the  court  seized  later  may  stay  proceedings  and  may  further,  on  the  application  of 
one of the parties, decline jurisdiction if the court first seized has jurisdiction and is 
able under its own law to consolidate the claims. Actions are deemed to be related 
where they are “so closely connected that it is expedient to hear and determine them 
together  to  avoid  the  risk  of  irreconcilable  judgments  resulting  from  separate 
proceedings”. While Article 28 thus allows consolidating closely connected actions 
which  have  been  filed  in  different  courts,  it  does  not  grant  in  itself  a  jurisdictional 
basis  for  a  genuine  consolidation  of  claims.  It  works  as  an  exception  from 
jurisdiction rather than as a positive ground for the assumption of jurisdiction.  

B. 

APPLICABLE LAW 

1. Introduction 

241. 

For every damages action based on a violation of competition law it is fundamental 
to know which substantive law will be applied to the case. Insofar as trade between 
Member  States  may  be  affected  by  the  practice in question, Articles  81  and  82  EC 
will  apply.  In  the  absence  of  Community  legislation,  the  detailed  conditions  for  a 
damage claim (such as the definition and quantification of damages, the availability 
of the passing-on defence, etc.) will be governed by national law. It should also be 
noted that Article 3(2) of Regulation 1/2003 allows Member States to enforce rules 
on unilateral conduct which are stricter than Article 82 EC even where that Article is 
applicable.  Clear  and  unambiguous  rules  on  applicable  law  would  help  to  facilitate 
damages  actions  for  breach  of  EC  antitrust  rules.  Given  the  factual  background  of 
many  cartels,  there  is  a  special  risk  that  in  a  subsequent  civil  action  the  laws  of 
several states could be applicable to the claim. This would make litigation extremely 
complicated and should be avoided.  

2. Factors determining the applicable law 

The Rome II project 

242. 

In  order  to  determine  the  right  approach  to  take,  it  is  essential  to  look  at  the 
approximation  proposals  by  the  Commission  in  the  field  of  civil  and  commercial 
matters.  The  Commission  has  proposed  a  Regulation  on  the  law  applicable  to  non-
contractual obligations, the so-called “Rome II” Regulation.145 The applicable law in 
contractual disputes is determined with reference to the Rome Convention on the law 
applicable to contractual disputes.146 As damage claims are generally tort claims, the 
Rome II project is of greater importance in this field.  

243. 

The  draft  Rome  II  Regulation,  according  to  Article  1,  shall  apply  in  situations 
involving  a  conflict  of  laws  to  non-contractual  obligations  in  civil  and  commercial 
matters. Given that a universal application is foreseen in Article 2, any law specified 
by  the  Regulation  shall  be  applied  whether  or  not  it  is  the  law  of  a  Member  State. 

145 
146 

As note 15 above. 
1980  Rome  Convention  on  the  law  applicable  to  contractual  obligations  (consolidated  version),  OJ 
1998  C 27/34.  The  Commission  intends  bringing  a  proposal  to  replace  the  Convention  with  a 
Regulation. 

EN 

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According to the non exhaustive list of Article 13, the scope of applicable law shall 
govern:  the  conditions  and  extent  of  liability;  the  grounds  for  exemption  from 
liability;  the  existence,  the  nature  and  the  assessment  of  damages  or  the  redress 
sought;  whether  a  right  to  claim  damage  may  be  transferred;  persons  entitled  to 
compensation  for  damage  sustained  personally;  the  liability  for  the  acts  of  another 
person;  the  manners  in  which  an  obligation  may  be  extinguished  and  rules  of 
prescription and limitation, including rules relating to the commencement of a period 
of  prescription  or  limitation  and  the  interruption  and  suspension  of  the  period. 
Procedural aspects remain covered by the law of the forum.  

244.  Most  damages  claims  based  on  breaches  of  competition  rules  are  tort  claims.  The 

general rule applicable to torts is set out in Article 5 of the proposal: 

Article 5 – General rule 

1.  Where no choice has been made under Article 4, the law applicable to a 
non-contractual  obligation  shall  be  the  law  of  the  country  in  which  the 
damage  arises  or  is  likely  to  arise,  irrespective  of  the  country  in  which 
the  event  giving  rise  to  the  damage  occurred  and  irrespective  of  the 
country  or  countries  in  which  the  indirect  consequences  of  that  event 
arise. 

2.  However,  where  the  person  claimed  to  be  liable  and  the  person 
sustaining  damage  both  have  their  habitual  residence  in  the  same 
country when the damage occurs, the non-contractual obligation shall be 
governed by the law of that country. 

3. 

Notwithstanding  paragraphs  1  and  2,  where  it  is  clear  from  all  the 
circumstances  of  the  case  that  the  non-contractual  obligation  is 
manifestly more closely connected with another country, the law of that 
other  country  shall  apply.  A  manifestly  closer  connection  with  another 
country  may  be  based  in  particular  on  a  pre-existing  relationship 
between the parties, such as a contract, that is closely connected with the 
non-contractual obligation in question. For the purpose of assessing the 
existence of a manifestly closer connection with another country, account 
shall be taken inter alia of the expectations of the parties regarding the 
applicable law. 

245. 

In  cases  arising  out  of  a  practice  restricting  free  competition,  it  is  unclear  whether 
Article 5 meets the specific needs of EC competition law. Several interpretations of 
the  general  rule  are  possible  in  cases  involving  a  damage  claim  for  breach  of 
competition  law.  One  interpretation  would  construe  the  place  where  the  damage 
occurs  to  be  the  territory  where  the  anti-competitive  behaviour  has  its  effects  on 
competition. It could, however, also be argued that the application of Article 5(1) in 
these cases will connect the claim not to the market effects of the illicit practice but 
to the - often coincidental - place of financial loss. If damage is sustained in several 
countries and/or there are multiple claimants from different countries, the laws of all 
the countries concerned would have to be applied. This has the consequence that in 
cases  involving  pan-European  or  global  cartels  the  optimal  scenario  of  having  one 
applicable law would not be reached. Furthermore, the application of Article 5(2) is 
not  appropriate  for  cases  involving  an  infringement  of  competition;  the  underlying 
rationale that the law of the common domicile of tortfeasor and victim is best placed 

EN 

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246. 

247. 

248. 

249. 

to determine the regulation of the recovery of losses between them  does not fit the 
public policy nature of competition law.  

In  Article  7  of  the  Commission’s  proposal,  it  is  clarified  what  the  general  rule  of 
Article 5 means in cases arising out of an act of unfair business practice. In such a 
case the place where the damage occurs shall be the territory where the competitive 
relationship is directly and substantially affected. Accordingly, the laws of the state 
where  that  territory  lies,  shall  govern  the  claim.  It  appears  that  this  provision  is 
applicable only to laws concerning unfair business practice, thus not covering claims 
based on an infringement of Articles 81 and 82 EC (or similar provisions in national 
competition law). Furthermore, the application of the rule to antitrust litigation would 
pose problems because it cannot be said in an action by a purchaser against a seller 
that  there  exists  between  them  a  competitive  relationship.  Purchaser  and  seller  are 
not normally competitors.  

An effect-based test 

It should therefore be considered whether a special rule for civil claims based on an 
infringement  of  competition  law  should  be  introduced.  Such  a  rule  could  serve  to 
clarify the meaning of the general rule as contained in Article 5 of the Commission’s 
proposal for these types of claims. Such claims could be governed by the law of the 
state on whose market the victim was affected by the anti-competitive practice. The 
civil remedy (damage claim) would thus be linked to the restriction or distortion of 
competition.  According  to  a  comparative  analysis  of  the  Member  States’  private 
international law there is currently a broad consensus in favour of applying the law 
of  the  country  in  which  the  market  is  distorted  by  competitive  acts.  This  result  is 
mainly obtained by application of the lex loci delicti principle. But there is, however, 
a  situation  of  uncertainty,  especially  in  countries  where  the  courts  have  not  had  an 
opportunity  to  rule  on  how  the  lex  loci  delicti  rule  should  operate  in  practice.  The 
effects  in  question  would  have  to  be  the  effects  on  competition  as  such,  not  the 
financial loss caused to certain undertakings.  

The  application  of  such  an  effects-based  test  would  lead  to  the  application  of  one 
single  law  in  those  cases  in  which  the  market  affected  is  either  national  or  sub-
national.  If,  however,  the  affected  market  is  bigger  than  one  single  state  or  where 
there are several national markets, special problems arise with the proposed rule as in 
such a case the laws of a number of different states could be applicable to a claim. 
The recovery of each loss would be governed by the law specifically applicable to it. 
This could render litigation very complex. 

The application of lex fori 

An alternative solution would be to stipulate that the applicable law shall always be 
the  law  of  the  forum  called  upon  to  adjudicate  the  dispute.  As  explained  above, 
jurisdiction  is  regulated  by  Regulation  44/2001  within  the  European  Union.  The 
coherence  of  substantive  EC  antitrust  rules  could  justify  that  a  court  of  a  Member 
State  should  always  apply  its  own  substantive  law  to  civil  disputes  concerning 
competition  cases.  Such  a  policy  would  greatly  simplify  the  bringing  of  damage 
claims for infringement of competition law. It would, however, lead to the result that 
the  applicable  substantive  law  is  not  the  same  depending  on  which  court  has 
jurisdiction over the matter. This might be an incentive for forum shopping.  

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Choice of the claimant 

250. 

As mentioned above, there are specific difficulties with an effects-based approach in 
cases in which the jurisdiction of the court allows the court to rule on the entirety of 
the loss suffered and those cases in which the markets affected are situated in more 
than  in  one  state.147  In  such  a  case,  the  laws  of  several  states  could  become 
applicable,  as  the  recovery  of  each  loss  would  be  covered  by  the  law  specifically 
applicable  to  it.  It  could  be  considered  whether  in  such  a  situation  it  might  be 
justified to let the claimant choose a single applicable law from among a number of 
different laws. This choice could be limited to choose one single applicable law from 
those  laws  designated  by  the  application  of  the  principle  of  affected  market.  The 
choice could also be widened so as to allow for the choice of one single law, or of 
the law applicable to each loss separately or of the law of the forum.  

C. 

POLICY OPTIONS 

Option  31:  The  applicable  law  shall  be  determined  by  the  general  rule  as  expressed  in 
Article 5 of the proposed Rome II Regulation 

251. 

The  proposed  Rome  II  Regulation  contains  in  its  Article  5  a  general  rule  for  the 
determination of the law applicable to torts. This rule has as its starting point the law 
of the state where the damage occurs. The application of this rule in cases of damage 
claims for infringement of competition law is unclear. 

Option  32:  There  could  be  a  specific  rule  for  damage  claims  based  on  an  infringement  of 
competition  law.  That  rule  could  clarify  that  the  law  of  the  state  where  the  damage  occurs 
shall be, in the case of such claims, any of the laws of the states on whose market the victim is 
affected by the anti-competitive conduct on which the claim is based. 

252. 

An  effects-based  test  would  link  the  civil  remedy  (damage  claim)  to  the  market 
affected  by  the  conduct  on  which  the  remedy/claim  is  based.  This  is  in  line  with 
general  competition  policy.  It  might,  however,  result  in  the  laws  of  a  number  of 
states  being  applicable  to  the  damage  arising  in  those  states  (e.g.  in  the  case  of  a 
Community-wide cartel).  

Option 33: The specific rule could be that the applicable law is always the law of the forum 

253. 

The application of the law of the forum which has jurisdiction to deal with the case 
would  facilitate  litigation.  It  must  be  carefully  assessed,  however,  whether  it  could 
lead to arbitrary results and whether it could unduly further forum shopping. 

Option 34: The specific rule could be that in those cases in which the markets of more than 
one state are affected, the claimant should have the choice of law. 

147 

Where jurisdiction is based on the place where the damage occurred (Art. 5(3) of Regulation 44/2001) 
and where that jurisdiction is limited to the recovery of the losses which occurred in that Member State 
(see  Shevill,  as  note  143  above),  these  difficulties  do  not  arise  and  the  option  discussed  here  is  not 
appropriate.  

EN 

71 

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254. 

Such a rule would address the specific difficulties which the “pure” application of the 
law of the affected market would pose in cases in which a number of different laws 
would be applicable. The choice of the claimant would have to be made between any 
of  the  laws  designated  by  the  application  of  the  principle  of  the  affected  market. 
Alternatively,  the  claimant  could  be  given  the  wider  choice  between  the  three 
different options: a) the recovery of each loss under the law specifically applicable to 
it (the general rule under Article 5 of the proposed Rome II Regulation), b) any one 
of the laws so designated as a law applicable to the whole case or c) the law of the 
forum. 

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SECTION X: OTHER ISSUES 

A. 

USE OF EXPERTISE IN COURT 

1. Introduction 

255. 

256. 

257. 

258. 

It  has  become  apparent  from  the  foregoing  sections  that  due  to  their  very  complex 
nature  claims  for  damages  in  the  area  of  competition  law  often  call  for  specific 
expertise  of  the  court  involved  (e.g.  proof  of  infringement,  quantification  of 
damages).  The  level  of  expertise  of  the  competent  courts  varies  considerably 
between  Member  States.  The  reason  behind  this  is  the  different  approach  taken  by 
Member  States.  While  some  countries  have  tried  to  increase  the  expertise  by 
according first instance jurisdiction in damages claims to higher courts than normal 
or  by  limiting  the  number  of  competent  courts  to  hear  competition-based  damages 
actions,  other  countries  rely  on  their  general  rules  governing  all  kinds  of  claims. 
Clearly the civil judges in the latter Member States are unlikely to acquire as much 
experience  and  expertise  as  judges  in  countries  where  some  kind  of  centralising 
action  has  been  taken.  Specialist  courts  or  specialist  panels  for  competition  cases 
might be useful in fostering a culture of expertise of the judges involved and could 
play a positive role in promoting efficient enforcement of competition law.  

Under Article 15 of Regulation 1/2003, national courts can ask the Commission for 
its  opinion  on  questions  concerning  the  application  of  the  Community  competition 
rules  whenever  the  national  court  is  applying  Article  81  or  82  EC.  Paragraph  3  of 
Article  15  empowers  NCAs  to  make  written  submissions  to  the  court  of  their 
Member  State  on  their  own  initiative  and  to  submit  oral  observations  with  the 
permission of the court. The Commission is empowered to make written submissions 
to the court of any Member State on its own initiative and to make oral submissions 
with the permission of the court “where the coherent application of Article 81 or 82 
of the Treaty so requires.” Furthermore, national courts can make a reference to the 
ECJ for a preliminary ruling under Article 234 EC.  

Recourse to expert evidence in court is in some way possible in all Member States.148 
Nevertheless important differences persist among Member States as to the question 
of who can nominate an expert, who can be an expert, on which issues the expert can 
give  evidence  and  the  relevant  evidential  value  of  an  expert  report.  Experts  can  be 
appointed either by the court, by a single party or by mutual agreement of the parties.  

The value of an expert report differs in many jurisdictions depending on the author. 
The majority of Member States attributes a higher evidential value to a report by an 
official court appointed expert than to a report that derives from an expert appointed 
by  one  of  the  parties.  This  distinction  may  be  either  formally  provided  for  or  may 
simply  reflect  the  reality  of  the  judge’s  assessment.  It  should  be  noted,  that  in 

148 

See the Comparative Report, page 65. 

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Germany, expert opinions delivered in former court proceedings might be introduced 
into later court proceedings with the full probative value of an expert opinion.149 

2. Policy Option on Experts 

Option 35: Use of external expertise in court 

259. 

260. 

External expertise is necessary particularly where Member States do not provide for 
specialist  courts  or  panels.  This  likewise  increases  the  expertise  available  in  court, 
but may also boost the costs of litigation. In most cases a higher evidential value will 
be attributed to a court appointed expert. Hence a provision requiring the parties to 
agree on an expert to be appointed by the court may increase the expertise and save 
costs.  It  would  possibly  facilitate  actions  for  damages  and  assist  judges  if  the 
nomination and use of experts by the court were possible in all legal systems. 

It should be borne in mind that the expertise of the courts will be further increased 
through  the  training  programmes  for  national  judges  in  EC  competition  law  first 
introduced  in  2002  by  the  Commission.150  The  situation  could  also  be  further 
improved were the national courts to make greater use of the existing possibilities of 
Article 15 of Regulation 1/2003 (see paragraph 256 above). 

B. 

IMPACT OF LIMITATION PERIODS IN THE MEMBER STATES 

1. Introduction 

261. 

262. 

263. 

Limitation periods (prescriptions) can impose significant restrictions on the recovery 
of damages. While time-barred claims cannot be enforced (thus leading to a denial of 
recovery for the victim in question), limitation periods perform an important role in 
providing  for  legal  certainty  by  ensuring  that  the  legal  position  of  the  parties 
concerned becomes irreversible at a certain point in time.  

The Study explains that the number of competition-based damages cases which are 
settled out of court is very substantial in comparison to the number of cases that are 
actually adjudicated on in court. The power of the claimant in settlement negotiations 
might  increase  the  longer  the  limitation  period  is  as  the  claimant  will  feel  reduced 
pressure to bring an action to stop the running of the limitation period.  

Special consideration needs to be given to the relationship between limitation periods 
and  procedures  before  public  competition  authorities.  Longer  time  limits  are 
favourable  for  follow-on  claims  as  other  parties  which  feel  aggrieved  by  the 
impugned,  anti-competitive  behaviour  will  be  more  inclined  to  bring  an  action  if  a 
judgment or decision has already been rendered finding a breach of competition law. 
If  limitation  periods  are  too  short  a  claim  might  be  already  statute  barred  once  a 

149 

150 

Article 1 No. 14 of the First act for the modernisation of Judiciary (“1. Justizmodernisierungsgesetz”) as 
adopted  on  9  July  2004,  Bundestagsdrucksache  15/3482  and  the  Study,  the  German  national  report, 
page 16. 
See e.g. call for proposals, available at: 
http://europa.eu.int/comm/dgs/competition/proposals2/20040316_ call/call_en.pdf. 

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judgment  or  decision  is  finally  rendered,  so  that  potential  claimants  are  no  longer 
able to bring a case.  

264. 

Also,  the obligation  in some jurisdictions  to  present all  evidence  to  the court when 
filing a claim has important consequences for the role played by limitation periods. A 
short limitation period together with an extensive need for collecting evidence could 
thus constitute a serious obstacle to the bringing of such competition-based damages 
cases. 

2. Limitation periods in the Member States 

265. 

266. 

267. 

There is considerable diversity between the Member States as to the rules concerning 
limitation periods. According to the Study, some Member States set their limitation 
periods  irrespective  of  the  knowledge  of  the  claimant,  i.e.  the  period  starts  running 
from the date on which the infringement occurred while others allow for a time limit 
dependent  on  the  subjective  knowledge  of  the  potential  claimant,  i.e.  damage  was 
detected  or  ought  -  under  usual  circumstances  -  to  have  been  detected.  Finally,  in 
many  Member  States  (Belgium,  the  Czech  Republic,  Denmark,  Germany,  Estonia, 
Greece, the Netherlands, Austria, Poland, Slovakia and Slovenia) both types of time 
limits  are  applied,  i.e.  there  is  a  subjectively  fixed  time  limit  starting  from  the 
subjective knowledge of the claimant but also an objectively fixed longer period after 
the  expiration  of  which  no  action  can  be  brought  irrespective  of  the  claimant’s 
knowledge. The length of limitation periods in general appears to differ substantially 
and ranges between one and 30 years.151 

The German 7th amendment to the Competition Act (GWB) provides in Section 33(5) 
for the suspension of limitation periods from the moment proceedings are instituted 
by  any  of  the  European  competition  authorities.  This  provision  applies  to 
investigations by any competition authority of the EU. As mentioned above, such a 
provision  is  particularly  important  for  the  coordination  of  private  and  public 
enforcement.  

In Spain, the injured party has to bring a damages action before the court within one 
year of the date when the party discovers the damage or, according to the opinion of 
most academics, from the date the Competition Court gives a definitive decision on 
the  infringement  in  the  event  that  previous  administrative  procedure  has  been 
initiated.152  It  is  not  entirely  clear  how  this  period  is  calculated  in  cases  where  a 
judgment is appealed. In principle it can be argued that a period of one year seems to 
be  too  short  for  competition  law  cases,  on  the  other  hand  a  period  of  one  year 
following  the  last  court  decision  seems  rather  fair,  as  a  couple  of  years  can  have 
already passed by until the last instance decided.  

3. Limitation periods in Community law 

268. 

Under Article 25 of Regulation 1/2003, the limitation period for powers conferred to 
the  Commission  by  Articles  23  and  24  are  subject  to  a  three  (infringements  of 

151 

152 

In  Palmisani,  as  note  11  above  at  para  29,  the  ECJ  has  held  -  although  in  the  context  of  a  limitation 
period  for  claims  stemming  from  legislative  or  administrative  malpractice  -  that  a  period  of  one  year 
does not make it excessively difficult to start court proceedings to obtain redress for damages sustained. 
See the Spanish national report, page 22. 

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provisions  concerning  requests  for  information  or  the  conduct  of  inspections)  and 
respectively  five  year  limitation  period  (all  other  infringements).  According  to 
Article 25(2) of the Regulation the clock starts on the day on which the infringement 
is  committed.  However,  in  the  case  of  continuing  or  repeated  infringements,  the 
clock starts on the day on which the infringement ceases.  

269. 

Articles 10 and 11 of the Product Liability Directive153 deal with limitation periods 
effective between private individuals: 

“Member  States  shall  provide  in  their  legislation  that  a  limitation  period  of  three 
years shall apply to proceedings for the recovery of damages as provided for in this 
Directive. The limitation period shall begin to run from the day on which the plaintiff 
became aware, or should reasonably have become aware, of the damage, the defect 
and the identity of the producer.  

The  laws  of  Member  States  regulating  suspension  or  interruption  of  the  limitation 
period shall not be affected by this Directive.  

Member  States  shall  provide  in  their  legislation  that  the  rights  conferred  upon  the 
injured person pursuant to this Directive shall be extinguished upon the expiry of a 
period  of  10  years  from  the  date  on  which  the  producer  put  into  circulation  the 
actual  product  which  caused  the  damage,  unless  the  injured  person  has  in  the 
meantime instituted proceedings against the producer.” 

270. 

Article 7 of the Commission Proposal for a Directive on certain aspects of mediation 
in civil and commercial matters154 foresees that limitation periods shall be suspended 
when the parties have agreed to mediation or the use of mediation has been ordered 
by a court or when an obligation to use mediation arises under the national laws of a 
Member State. This proposed rule is particularly relevant for the present issue as it 
too concerns the coordination between two different types of proceedings and is an 
example  that  the  functioning  of  limitation  can  be  made  dependant  on  another 
procedure. 

4. Policy option on limitation periods 

Option 36: Suspension of the time period where there is a public investigation 

271. 

Particularly in the possible absence of any form of disclosure serious thought should 
be given to the suggestion contained in Section 33(5) of German GWB as amended 
by the 7th Amendment. This provides for the suspension of the limitation period from 
the  moment  proceedings  are  instituted  by  either  the  Commission  or  by  any  of  the 
competition authorities of the Member States. This solution has the advantage for the 
claimant of keeping his right to claim open until such time as proceedings have run 
their course thus eliminating the risk involved with failing to prove the infringement. 
However, although the envisaged suspension facilitates private actions, it could also 
make potential claimants hesitant to start actions on their own on the grounds that it 
is much more convenient for them to await a final decision which lowers the risk (as 
then  the  infringement  itself  or  at  least  a  rebuttable  presumption  is  established)  and 

153 
154 

As note 74 above. 
COM(2004) 718final. 

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the  efforts  to  be  taken  by  the  claimant.  Compared  to  the  general  prolongation  of 
limitation periods a private claimant might be less inclined to put off an action since 
he does not know if proceedings actually will be initiated by a competition authority. 

272. 

The “Spanish” model155 is a variant on this idea. A period which starts running after 
a  court  in  last  instance  has  decided  on  the  matter  of  infringement  could  at  least 
preserve all follow-on claims. 

C. CAUSATION 

273. 

The  requirement  of  causation  is  a  necessary  element  of  any  damage  claim.  In 
principle,  recovery  will  be  ordered  where  an  infringing  behaviour  has  caused  a 
damage. Causation links damages to infringing acts, thus ensuring that the defendant 
will only be liable for those damages which are the consequence of his illicit action. 

274.  When  considering  the  importance  of  the  causation  requirement  for  the  actual 
availability and efficiency of damages claims, a difference must be made between the 
legal  notion  of  causation  and  the  evidence  showing  that  in  a  given  case  the 
requirement  (as  defined  by  the  legal  notion)  is  fulfilled.  Proof  of  causation  can  be 
highly complex in antitrust cases. The financial loss suffered by the victims of anti-
competitive behaviour will often consist in the paying of a supra-competitive price. 
The  claimant  will  therefore  often  have  to  show  that  a  rise  in  price  was  the 
consequence of the actions of the defendant. The defendant might in turn argue that 
any  rise  in  prices  was  in  fact  caused  by  something  different,  such  as  the  normal 
functioning  of  the  market  or  by  the  actions  of  third  parties.  Proving  a  causal  link 
might  require  complex  economic  analysis  based  on  a  large  number  of  facts  and 
economic data. Insofar as proof of causation is concerned, we refer to Section II of 
this paper which deals in greater length with access to evidence. 

275.  With regard to the legal notion of causation, the legal systems of the Member States 
adopt  diverse  approaches.  Legal  systems  refer  to  such  concepts  as  “foreseeability”, 
“direct  cause”  or  “adequate  cause”.  It  is  arguable  that  the  application  of  these 
concepts  in  concrete  cases  will  not  lead  to  widely  diverging  results  and  that  the 
concepts  derive  from  the  legal  culture  of  the  jurisdictions  in  question  more  than  to 
actual differences in appreciation. Given the complex nature of the assessments to be 
made and given that case-law has played a very important role in all jurisdictions on 
this question, it could be considered that no further action is necessary in this field in 
order to facilitate damage claims. 

276. 

It must, however, be stressed that the application of the legal requirement should not 
lead  to  the  exclusion  of  groups  of  victims  of  anti-competitive  behaviour  from 
recovering their losses. It must be recalled in this respect that the ECJ has ruled in its 
Courage decision that the full effectiveness of the EC Treaty would be put at risk if it 
were  not  open  to  any  individual  to  claim  damages  for  loss  caused  to  him  by  a 
conduct  prohibited  by  Articles  81  and  82  EC.156  In  the  absence  of  Community 
legislation,  the  detailed  conditions  for  the  claim  remain  covered  by  national  law. 
However,  the  application  of  national  law  in  this  matter  depends  on  the  double 

155 
156 

See above, paragraph 267. 
Courage, para 26. 

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principle of equivalence and effectiveness. These principles and particularly the latter 
can  influence  notions  of  causation  as  existing  in  national  civil  law.  It  should  be 
considered whether a clarification of the legal requirement of causation is necessary 
in order to further facilitate damages actions. 

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