Opinion of the European Economic and Social Committee on the Green Paper — Damages actions for breach of the EC antitrust rules COM(2005) 672 final
Date: 2006-10-26
Institutions: European Economic and Social Committee
Subjects: application of EU law, competition law, control of restrictive practices, damages, dominant position, single market

30.12.2006

EN

Official Journal of the European Union

C 324/1

II

(Preparatory Acts)

EUROPEAN ECONOMIC AND SOCIAL COMMITTEE

430th PLENARY SESSION HELD ON 26 OCTOBER 2006

Opinion of the European Economic and Social Committee on the Green Paper — Damages actions
for breach of the EC antitrust rules

COM(2005) 672 final

(2006/C 324/01)

On 19 December 2005, the European Commission decided to consult the European Economic and Social
Committee, under Article 262 of the Treaty establishing the European Community, on the Green Paper —
Damages actions for breach of the EC antitrust rules

The Section for the Single Market, Production and Consumption, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 20 September 2006. The rapporteur was Ms
Sánchez Miguel.

In view of the renewal of the Committee's four-year term of office, the Plenary Assembly decided to vote on
in
this opinion at its October plenary session and appointed Ms Sánchez Miguel as rapporteur-general
accordance with Rule 20 of the Rules of Procedure.

At its 430th plenary session, held on 25 and 26 October 2006 (meeting of 26 October), the European
Economic and Social Committee adopted the following opinion by 99 votes to 28 with 22 abstentions.

1. Summary

must fit in with the action already being undertaken by the
NCAs.

The Commission's presentation of the Green Paper on
1.1
damages actions for breach of the EC antitrust rules has opened
up a broad debate on the need for Community guidelines to
make it easier for businesses, consumers and workers to bring
liability actions against those in breach of Articles 81 and 82
TEC in the course of their business activity.

1.4
It should be stated that the EESC does not hold a blanket
position covering all of the most important issues raised by the
Green Paper; on each of these issues, it puts forward arguments
that will help the Commission to take decisions aimed at estab-
lishing guidelines for future legislative action. All of these issues
are responded to and discussed in section 5 of the opinion.

1.2
The EESC wishes to state, first of all, that the aim is to
ensure the effective protection of everyone involved in the Euro-
pean internal market. Given the free movement of goods, there
must be a degree of uniformity in all countries between rights
and obligations deriving from contracts and services. Where
cross-border transactions are concerned, some harmonisation
between national legislation in the various countries must be
promoted.

Secondly, account must be taken of the existence of both
1.3
European and national competition authorities (NCAs), whose
task it is to determine what are prohibited practices, and to
establish the economic sanctions that could be imposed on
companies in breach of the rules. The Green Paper is concerned
in
with securing compensation for loss in the private sector,
other words through the courts, which means that this action

2. Introduction

The European internal market has undergone a substan-
2.1
tial
reorganisation where competition rules are concerned,
which has helped firstly to give this market the rules needed to
ensure that companies act within a framework of free competi-
tion. Secondly, this reorganisation has helped to adapt national
competition rules between Member States, so that companies
can exercise their right to freedom of establishment under the
same conditions.

2.2
One of the issues facing the internal market is how to
provide effective protection of the other part of the market, in
other words, consumers — in the broadest sense of the word
— whose rights are adversely affected when contracts and

C 324/2

EN

Official Journal of the European Union

30.12.2006

services take on a cross-border nature. When the relevant
companies are based in another Member State, consumers can
only exercise their national consumer rights they enjoy in their
own countries, whereas competition rules apply to the entire
internal market.

The ECJ has

issued an important

judgment, giving
2.9
private individuals who have suffered as a result of a breach of
Articles 81 and 82 of the Treaty the right to claim for compen-
sation. In cases where national legislation opposes this right (2),
the articles of the Treaty are deemed to take precedence over
national legislation.

2.3
Community competition legislation lacks an effective
system for claiming damages for a breach of the rules laid down
in Articles 81 and 82 TEC across the internal market. The
Commission's new approach on competition policy and
consumer protection has helped prompt the presentation of the
Green Paper, which sets out the key issues, with a view to taking
those who have
legislative action to protect
suffered loss as a result of the lack of free competition in the
internal market.

the rights of

2.10
The Green Paper offers different options for discussion,
which help to determine the different forms of damages actions
possible, on the basis of public actions brought by the competi-
tion authorities or private actions brought by individuals who
have suffered damages. To this end, the Green Paper lists a
number of questions that it considers to be fundamental and
which put forward various options and focus the discussion in
order to achieve the best possible results, so that these options
can then be implemented and also adapted to national
legal
systems, which are not always in line with one another.

Consideration must be given to the importance of
a horizontal

2.4
Article 153(3) TEC (1), which provides
consumer protection policy that applies to all policies.

for

2.5
In this context, the Green Paper raises the most impor-
tant issues for introducing protection measures and for estab-
lishing damages claims for breaches of Community antitrust
law, particularly in relation to Articles 81 and 82 of the Treaty
and their implementing rules. Nevertheless, it must be borne in
mind that the Green Paper covers a complex legislative frame-
work, which could lead to a reform of national procedural rules
— a matter that raises questions, mainly with regard to issues of
subsidiarity and even affecting other issues of civil law.

The Green Paper takes as its starting point the dual appli-
2.6
cation of competition law. On the one hand, the public authori-
ties, i.e. not only the Commission but also the national authori-
ties (NCAs), apply the rules individually, making use of the
powers available to them. Firstly, the competition authorities are
empowered both to declare infringements of the rules and to
declare the invalidity of agreements restricting competition.
Secondly, they have the power to impose financial sanctions
based on the implementing regulations for competition law.

2.7
On the other hand, the private enforcement of competi-
tion law is allowed in ordinary courts, because the Courts of
Justice have the right to enforce this law directly. In this private
sphere, particular importance is attached to requests for precau-
tionary measures
to discontinue any
prohibited practices, in order to reduce the detrimental impact
on competitors and consumers.

forcing undertakings

2.8
Nevertheless, the purpose of fully protecting the rights
granted in the Treaty is to ensure that damages can be contested
in court, and this is the basic aim of actions for damages caused
by breaches of competition rules. Restricting free competition
affects undertakings as well as consumers, who are at the end of
the chain of market activity.

(1) See OJ C 185 of 8.8.2006.

3. Summary of the Green Paper

3.1
The Green Paper is structured around a list of questions,
aimed at stimulating a discussion of the legal nature of damages
actions, providing a number of options circumscribing and
shaping the Commission's future legislative action. It attempts
to clarify under what circumstances a damages action could be
brought, and what factors, bearing in mind existing legislation
in some Member States, would make the process easier.

The Commission poses

3.2
number of possible options:

three questions providing a

Question A: Should there be special rules on disclosure of docu-
mentary evidence in civil proceedings for damages under Arti-
cles 81 and 82 of the EC Treaty? If so, which form should such
disclosure take?

Question B: Are special rules regarding access to documents
held by a competition authority helpful for antitrust damages
claims? How could such access be organised?

Question C: Should the claimant's burden of proving the anti-
trust infringement in damages actions be alleviated? If so, how?

The second issue addressed is fault requirement, since in many
Member States civil liability actions require fault to be proven.
The question posed is:

Question D: Should there be a fault requirement for antitrust-
related damages actions?

With regard to the third issue, the concept of damages, the
following two questions are proposed:

(2) See the Judgment Courage Ltd v Bernard Crehan; C-453/99 of 20
September 2001. Reference by the Court of Appeal of England and
Wales (Civil Division) for a preliminary ruling.

30.12.2006

EN

Official Journal of the European Union

C 324/3

Question E: How should damages be defined?

Question F: Which method should be used for calculating the
quantum of damages?

The passing-on defence and indirect purchaser's standing is also
addressed:

Question G: Should there be rules on the admissibility and
operation of the passing-on defence? If so, which form should
such rules take? Should the indirect purchaser have standing?

One important question is whether this type of action could be
used to protect consumers' interests, given that it is considered
to be hard to apply to stand-alone actions. It would make sense,
in this case, to bring collective actions, which already exist in
some EU countries.

Question H: Should special procedures be available for bringing
collective actions and protecting consumer interests? If so, how
could such procedures be framed?

Costs play an important role in the success of proposed actions,
since the high costs sometimes deter claimants from bringing
an action, which leads to the question:

Question I: Should special rules be introduced to reduce the
cost risk for the claimant? If so, what kind of rules?

The success of proposed actions can hinge on the coordination
of public and private enforcement, hence the following ques-
tion:

Question J: How can optimum coordination of private and
public enforcement be achieved?

Jurisdiction and applicable law is another of
the issues
addressed. Given the cross-border nature of many practices
prohibited under competition rules, the question is:

Question K: Which substantive law should be applicable to anti-
trust damages claims?

Other questions included in the proposal are:

Question L: Should an expert, whenever needed, be appointed
by the court?

Question M: Should limitation periods be suspended? If so,
from when onwards?

Question N: Is clarification of the legal requirement of causation
necessary to facilitate damages actions?

4. General comments

Regulation 1/2003 (3) recognises that both the Commis-
4.1
sion and the NCAs are responsible for monitoring the proper

(3) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty, OJ L 1 of 4.1.2003, p. 1. EESC opinion in OJ C
155 of 29.5.2001, p. 73.

implementation of Community competition law by the Com-
munity authorities and the Member States and, within the limits
of their powers, they can declare a commercial practice prohib-
ited or an abuse of a dominant position within the market, with
the ensuing sanctions, in a form and on a scale appropriate to
the damages caused.

The problem arises with regard to private enforcement,
4.2
in the civil courts, where individuals who have suffered loss,
including consumers, as a result of prohibited competitive prac-
tices, wish to bring a judicial action to seek compensation for
damages caused by distortion to competition. This is the debate
that needs to be resolved at EU level, because the free movement
of goods and services in the European internal market requires
Community measures,
in particular bearing in mind that the
situation varies considerably from one Member State to another
and, since no European legislation exists on the matter, it is the
national courts that have jurisdiction.

4.2.1
The solution to facilitating consumer damages actions
cannot necessarily be used for disputes between businesses,
the parties most often involved in disputes
which are
to competition. The Commission's
concerning restrictions
proposal must envisage an approach for such disputes. Similarly,
the protection of workers in companies involved in antitrust
practices must be provided for.

4.3
Nevertheless, given the absence of Community legislation
on compensation for loss arising from breaches of Articles 81
and 82 of the Treaty, the ECJ (4), which had received a request
for a preliminary ruling on the application of these rules by a
national court, ruled that the articles of the TEC would apply
directly. Claims for damages caused by restrictions on competi-
tion fall within the jurisdiction of national courts. Furthermore,
the ECJ reiterated the principle already expressed in a number of
rulings (5) according to which the Treaty has created its own
legal system, which is incorporated into the Member States' own
legal systems, and which is equally binding on states and private
individuals.

The ECJ has also confirmed (6) that Articles 81(1) and 82
4.4
‘produce direct effects in relations between individuals, and
create rights for the individuals concerned which the national
courts must safeguard’ and even adds (7) that ‘in the absence of
Community rules governing the matter, it is for the domestic
legal system of each Member State to designate the courts and
tribunals having jurisdiction and to lay down the detailed proce-
dural rules governing actions for safeguarding rights which indi-
viduals derive directly from Community law’.

(4) See the judgment referred to in footnote 3, paragraphs 17 to 19.
(5) See paragraph 19 of the judgment cited above, which sets out a consid-
erable number of judgments upholding the same principle on the direct
application of the rules set out in the EC Treaty.

(6) See paragraph 23 of the judgment cited above, along with a consider-

able body of case-law.

(7) See paragraph 29 of the judgment cited above.

C 324/4

EN

Official Journal of the European Union

30.12.2006

The EESC considers that Community guidelines could be
4.5
drawn up establishing the conditions for bringing an action for
damages arising from infringements of the Treaty. This action
must compensate those who have suffered losses, within reason-
able limits, for economic loss or loss of profit resulting from
it must
prohibited competition practices. Above all however,
enable consumers — in the broadest sense of the word — to
exercise their economic rights, recognised in the laws designed
to protect them, and this is why we welcome the Green Paper
on the matter. We do, however, wish to highlight the need for
in order to ensure the best
proceedings to be made shorter,
outcomes as swiftly as possible.

5. Specific comments

5.1
The EESC considers it to be a priority to determine, from
the outset of a private case brought in a civil court, future
actions for damages caused by prohibited competitive practices.

5.2
The public competition authorities, both Community
and national, have an instrument for implementing Community
legislation — Regulation (EC) 1/2003 (8) — which gives them
wide-ranging powers to act
in claims against undertakings
suspected of breaching competition law. Despite this consider-
able power to act, all the public authorities can do is declare
that an undertaking has infringed antitrust legislation and then
impose fines.

The problem becomes more complicated when, at Com-
5.3
munity level, competition authorities lack the power to bring
damages actions. Furthermore, the ECJ can only act on refer-
ences for preliminary rulings, because sole jurisdiction in this
area lies with the national courts. With this in mind, the ECJ has
stated the need for Member States to establish their own
arrangements for bringing damages actions (9).

5.4
Private enforcement of Articles 81 and 82 TEC means
that they can be used by national courts in civil proceedings to
bring actions for damages for private individuals. The problem
lies in determining what type of action is most appropriate and
especially whether a special action should be brought. There are
considerable problems and these can be seen in the wide range
of questions raised by the Commission in its Green Paper. The
EESC would like to help to guide the debate by making some
remarks on the issues raised.

5.4.1
Access to evidence. The rules on evidence in civil
proceedings raise two key questions: 1) the burden of proof and
2) evaluating this evidence. These issues should be considered in

(8) It is important to highlight the role taken on by the Network of Compe-
tition Authorities, (ECN) (OJ C 101 of 27.4.2004) in order to work
with the Commission and the NCAs on implementing of competition
law.

(9) See the Courage judgment referred to above.

court cases likely to take place under various circumstances: a)
following a competition authority ruling, b) before a competi-
tion authority ruling and even c) at the same time that the
competent authority is carrying out an analysis of certain prac-
tices.

5.4.1.1
Regulation (EC) 1/2003 establishes each and every
circumstance in which Community and national competition
authorities can demand proof, in order to determine whether
prohibited practices are taking place (10); the option of using
competition authority files as evidence would thus be a way of
solving private individuals' problem of obtaining proof. The
question is, would the decision to grant access to files be left to
the courts to which a request is made, or would the private indi-
viduals — the claimants — have the right to obtain them? The
ECJ (11) has developed a substantial body of case-law on the
Commission's commitment not to release contentious docu-
ments to third parties until the main proceedings are over.

5.4.1.2
Consequently, with regard to what are known as
‘follow-up’ actions, the following approach could be used: once
a breach has been declared by the competition authorities and a
damages action has been initiated by the individuals affected,
the competition authority would provide the courts with the
evidence, thus establishing a link between public and private
enforcement (12).

5.4.1.3
In cases where damages actions for breach of anti-
trust rules do not apply as the result of a decision by the
competent authorities, the EESC considers that presentation by
the claimants of evidence adequate for a preliminary assessment
of the likelihood of the action's success (establishing the facts)
should be deemed sufficient to bring such an action. This argues
for not only for the existence of special rules for releasing docu-
mentary evidence, but also for the courts to be granted an
active role and broad powers, including the power to impose
sanctions, with regard to fundamental aspects of the action and
in particular as regards the finding, gathering and release of
evidence.

5.4.1.4
Because the national courts that will hear antitrust
damages cases have a parallel power concerning abuses of
competition rules (Regulation 1/2003), their access to these
documents, without prejudice to the duty to safeguard confiden-
tiality referred to above, must not form an insurmountable
obstacle. The rules of access must, as a matter of priority, obey
the law of the forum, but the competition authorities must also
be obliged to release to the courts any evidence that
they
request.

(10) The scope of their powers has actually increased in this field, although
in some cases, they require authorisation from the national judicial
authorities to carry them out, for example with regard to company
registration.

(11) Judgment of 18 May 1982, Case 155/79, AM&S Ltd v. Commission

(ECN.1982 p. 417).

(12) Commission Communication on the co-operation between the
Commission and the courts of the EU Member States in the applica-
tion of Articles 81 and 82 EC (DO C 101 of 27.4.2004).

30.12.2006

EN

Official Journal of the European Union

C 324/5

It should be emphasised that access to documents
5.4.1.5
already held in a damages action is particularly important in
actions for antitrust damages regardless of
the investigating
body (administrative or judicial) and regardless of the outcome
of the case (13).

The possibility

5.4.1.6
bodies
that
involved in an antitrust action might also select the evidence
that can be accessed in a damages action is likely to create suspi-
cion and liability as regards the criteria governing the selection
process.

administrative

the

Lastly, on the assumption that the courts are to be
5.4.1.7
given special and wide-ranging powers in this type of case,
support should be given to the idea that the refusal of one of
the parties to submit evidence could have a negative impact on
into
its assessment, enabling the court
consideration in order to determine whether or not the case is
proven.

to take this refusal

Another possibility for cases involving consumers
5.4.1.8
would be to reverse the burden of proof, by placing it on the
defendant, meaning that, once a given practice has been
declared anticompetitive by the competition authorities, they
can only be exonerated from paying compensation for damages
if it is proved that this does not apply to the claimants. Atten-
tion is drawn to this, as one of the main principles of consumer
protection, and although most Member States enforce the rule
lies with the claimants, exceptions
that the burden of proof
this burden of proof (14) are also
leading to the reversal of
recognised, as has occurred in court rulings (15) (16). If a prior
ruling exists stating that an infringement has occurred, failure to
reverse the burden of proof
in damages actions where this
is the cause would represent an unacceptable
infringement
in this case, would have to be
duplication of proof which,
produced not by an authority that has special
investigative
powers but by the injured parties, which would heighten the
asymmetries between the parties in this type of action.

5.4.1.9
Also related to the submission of evidence is the
issue of expert witnesses, whose services are often required, due
to the complexity of damages actions. The multiplication of
possibly contradictory experts should be avoided, however, as
this would contribute little to the desired effectiveness of the
proceedings.
In line with the court's wide-ranging powers
already argued for in this context, where the parties fail to reach
any
agreement,

to appoint

should fall

to the

court

it

(13) For example, the competition authorities' power to accept commit-

ments, as set out in Article 5 of Regulation 1/2003.

(14) See the examples: Study on the conditions of claims for damages in cases of
infringement of EC competition rules — comparative report drawn up by
Denis Waelbroeck, Donald Slater and Gil Even-Shoshan, of 31 August
2004 (p. 50 et seq.).

(15) In line with Council Regulation (EC) No 44/2001 of 22 December
2000 on jurisdiction and the recognition and enforcement of judg-
ments in civil and commercial matters (OJ L 12 of 16.1.2000, p. 1).
EESC opinion OJ C 117 of 26.4.2000, p. 6.

(16) Rules on the burden of proof and its reversal in fact already exist, in
Article 2 of Regulation 1/2003: In any national or Community
proceedings for the application of Articles 81 and 82 of the Treaty, the
burden of proving an infringement of Article 81(1) or of Article 82 of
the Treaty shall rest on the party or the authority alleging the infringe-
ment. The undertaking or association of undertakings claiming the
benefit of Article 81(3) of the Treaty shall bear the burden of proving
that the conditions of that paragraph are fulfilled.

experts required, possibly in cooperation with the administrative
competition bodies.

Damages. The key issue is to consider the loss incurred
5.4.2
by individuals and to quantify such loss. DG SANCO has carried
out a study (17) in order to establish a concept of damage to
consumers and to draw up a definition that could apply in
different areas, including competition. The issue has wide reper-
cussions, because an assessment of the loss will depend on the
share of the market affected by the prohibited practices. In any
event, deterring the losses incurred by individuals involves extre-
mely difficult problems of assessment, because it has been
recognised that it is very often easier to assess the advantages
gained by companies from an antitrust agreement than the loss
it has caused.

5.4.2.1 While the courts must be given broad powers when
hearing this type of action, an equitable approach would be
reasonable, although for reasons of the system's consistency and
bearing in mind the trends-based development of case-law,
guidelines must be provided on the criteria (proof of equity) to
be used when determining the amount of damages.

the

Another

concerns

related point

5.4.2.2
limitation
period (18) applying to the right to claim damages for antitrust
practices, which cannot begin to be calculated, especially in
actions brought following a competition authority ruling, before
the final judgment has been handed down on the infringement,
because this might cause further difficulties regarding access to
evidence.

Lastly, the issue of the legal nature of a claim for
5.4.2.3
compensation must be addressed because,
in most cases, the
absence of a contractual relationship between the business that
has committed the breach and the consumer makes it harder to
establish a legal base for the claim. To this end, applying the
rules on non-contractual obligations (19) would enable use to be
made of the damages action system, which is a deep-rooted
tradition in national legislation.

5.4.3
Collective actions compared to individual damages
actions (20). In the context of damages for breach of antitrust
rules, group actions provide a perfect example of some key
facilitating
i) effective compensation for damages,
objectives:

(17) An analysis of the issue of consumer detriment and the most appro-

priate methodologies to estimate it (2005/S 60-057291).

(18) Point 4 of the conclusions, concerning suspension of a limitation
period, to the ECJ Judgment of 13 July 2006, in Joined Cases C-
295/04 to 298/04 (request from the Giudice di Pace di Bitonto
(Italy) for a preliminary ruling) — Vincenzo Manfredi v Lloyd Adria-
tico Assicurazioni SpA (C-295/04), Antonio Cannito v Fondiaria Sai
SpA (C-296/04), Nicolò Tricarico (C-297/04) and Pasqualina
Murgolo (C-298/04) v Assitalia SpA.
Attention is drawn to the significance of this recent agreement of the
ECJ for strengthening the case-law mentioned.

(19) Proposal for a Regulation of the European Parliament and of the
Council on the law applicable to non-contractual obligations —
(‘Rome II’) — COM(2003) 427 final.

(20) The practice of so-called ‘class actions’ in US law is not deemed to be
appropriate either in Europe's legal systems or in its judicial model, at
least in most countries, which have their own traditional systems for
making claims for compensation.

C 324/6

EN

Official Journal of the European Union

30.12.2006

claims for damages by organisations on behalf of the consumers
affected, thus helping to provide real access to justice;
ii) the
prevention and deterrence of antitrust behaviour, given the
greater social impact of this type of action. Furthermore, from
the point of view of those breaching the rules, the possibility of
concentrating their defence would have marked cost and effi-
ciency gains.

5.4.3.1
The key point about collective action is that it recog-
nises organisations' legitimacy to act, which makes it easier for
them to bring a case before the courts, along similar lines to
Directive 98/27/EC (21), in the area of injunctions for the protec-
tion of consumers' interests. Although this directive in the field
of consumer protection, founded on the principle of the mutual
recognition of organisations' legitimacy and their notification to
the Commission (22), does not provide for damages or compen-
sation for loss, it has opened the way at European level for the
active legitimacy of various bodies and organisations and for
bringing actions on behalf of collective interests (23).

Funding damages actions. The standard practice of
5.4.4
bringing damage liability actions shows that
the procedural
costs act as a deterrent. First of all, the high costs required to
bring proceedings can prevent an action from getting off the
ground and secondly, the protracted nature of civil proceedings
increases their costs. Consideration could be given to the idea of
consumer authorities creating a fund to support collective
claims.

5.4.4.1
Unless this happens, there is a risk that the injured
parties would be dispersed, with individual, sometimes derisory
payouts that would make it extremely difficult to secure funding
for actions of this nature, in contrast with the defendants, who
can readily pour further funds into their defence.

Practice has demonstrated that the difference in the
5.4.4.2
costs born by the injured parties and by the undertaking or
association of undertakings that has breached the rules puts the

Brussels, 26 October 2006.

latter under pressure. It is considered that providing for exemp-
tions from or reductions in legal costs for the claimants in
damages actions for breach of antitrust rules — without preju-
dice to the right to penalise parties acting in bad faith, or
payment of costs if a case is won — is a means of offsetting the
asymmetries between parties in actions of this nature.

5.4.5
The passing-on defence and indirect purchaser's
standing entails a complex procedure in that losses caused by a
prohibited practice by an undertaking could have an impact
further down the supply chain or even affect the end-consumer.
This makes it still more difficult to bring damages actions, in
particular due to the difficulty in proving a link between the
loss and the prohibited practice. Difficulty in providing proof
results in passing-on being excluded from damages actions.

5.4.6
Jurisdiction and applicable law. The Brussels Conven-
tion covers the issue of jurisdiction for hearing cases and the
enforcement of
judgments in civil and commercial matters.
Subsequently, Regulation 44/2001 set out the implementing
rules, within the EU, for cross-border disputes. This can solve
most of the potential
implementing difficulties in actions for
damages caused by prohibited competition practices. Collective
actions in the field of damages actions for antitrust practices are
established practice in only a minority of Member States and
when deciding on whether this is a useful option, consideration
must thus be given to their specific characteristics, in particular
in terms of the competent jurisdiction and the applicable legisla-
tion. The cost and efficiency gains for both claimants and defen-
dants produced by this type of action will only be effective if
the rules can be applied consistently, which depends on giving
primacy to the law of the court having jurisdiction. Making
information available not only on the bodies competent
to
bring actions of this nature but also on actions pending and the
ensuing rulings would appear to be an important step in estab-
lishing genuine private enforcement of competition policy.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

(21) Directive 98/27/EC of the European Parliament and of the Council of
19 May 1998 on injunctions for the protection of consumers' interests
(OJ L 166 of 11.6.1998, p. 51). EESC Opinion in OJ C 30 of
30.1.1997, p. 112.

(22) See the Commission Communication on injunctions for the protec-
tion of consumers' interests, concerning the entities qualified to bring
an action under Article 2 of Directive 98/27/EC of the European Parlia-
ment and of the Council, listing a total of 276 entities. (OJ C 39 of
16.2.2006, p. 2).

(23) (…) collective interests mean interests which do not include the cumulation of
interests of individuals who have been harmed by an infringement; See para-
graph 2 of the directive.