Commission staff working paper accompanying the White paper on damages actions for breach of the EC antitrust rules {COM(2008) 165 final} {SEC (2008) 405} {SEC (2008) 406}
Date: 2008-04-02
Institutions: European Commission
Subjects: application of EU law, competition law, competition policy, control of restrictive practices, damages, dominant position, impact study, single market

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 2.4.2008 
SEC(2008) 404 

COMMISSION STAFF WORKING PAPER 

accompanying the 

WHITE PAPER on 
Damages actions for breach of the EC antitrust rules 

{COM(2008) 165 final} 
{SEC (2008) 405} 
{SEC (2008) 406} 

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TABLE OF CONTENTS 

Chapter 1 — Introduction .......................................................................................................... 7 

A. 

1. 

2. 

3. 

B. 

1. 

2. 

3. 

The aim of the White Paper ......................................................................................... 7 

The background............................................................................................................ 7 

The obstacles to the enforcement of the victims’ right to damages............................. 8 

The need for facilitating measures and the positive effects of an enhanced level 
of actions for damages ............................................................................................... 10 

A balanced European system which preserves strong public enforcement ............... 10 

The designing of a balanced European system .......................................................... 10 

The importance of preserving effective public enforcement ..................................... 11 

The interaction between public enforcement and actions for damages: the under- 
lying objectives .......................................................................................................... 11 

C. 

The measures proposed in the White Paper ............................................................... 12 

Chapter 2 — Standing: indirect purchasers and collective redress ........................................ 13 

A. 

1. 

2. 

B. 

C. 

1. 

a. 

b. 

2. 

a. 

b. 

c. 

3. 

The options in the Green Paper and the results of the public consultation ................ 13 

Standing of indirect purchasers.................................................................................. 13 

Collective redress ....................................................................................................... 13 

The acquis communautaire as regards standing of indirect purchasers..................... 14 

Measures as regards collective redress ...................................................................... 15 

Necessity of collective redress mechanisms and identification of key issues ........... 15 

Necessity to provide for means of collective redress for all categories of victims 
of competition law infringements .............................................................................. 15 

Key issues to be addressed......................................................................................... 16 

Measures ensuring effective collective redress mechanisms in the competition 
field ............................................................................................................................ 18 

A representative action for damages brought by qualified entities............................ 18 

An opt-in collective action ......................................................................................... 20 

The relation between representative actions, opt-in collective actions, and indivi 
dual actions................................................................................................................. 21 

The relationship with other Commission initiatives in the field of collective re- 
dress............................................................................................................................ 22 

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Chapter 3 — Access to evidence: inter partes disclosure........................................................ 23 

A. 

B. 

1. 

2. 

C. 

1. 

2. 

3. 

4. 

a. 

b. 

c. 

d. 

5. 

a. 

b. 

c. 

d. 

e. 

6. 

7. 

a. 

b. 

The options in the Green Paper and the results of the public consultation ................ 23 

The acquis communautaire ........................................................................................ 24 

The principles of equivalence and effectiveness........................................................ 25 

Community rules on disclosure of evidence in the IP Directive 2004/48/EC ........... 27 

Measures to ensure effective EC antitrust damages actions ...................................... 28 

The problem: need for better access to evidence in antitrust damages cases............. 28 

Solutions not retained: lowering the standard of proof or shifting the overall bur- 
den of proof ................................................................................................................ 29 

The proposed solution: a minimum level of disclosure based on fact pleading, 
combined with judicial control of relevance and proportionality .............................. 30 

Conditions for obtaining a disclosure order by the court and its scope ..................... 31 

Fact pleading: presentation of reasonably available facts and evidence sufficient 
to make out a plausible claim..................................................................................... 31 

Inability of claimant to otherwise access relevant evidence ...................................... 32 

Specification of categories of evidence to be disclosed............................................. 33 

Judicial control of relevance, necessity and proportionality of disclosure measure .. 33 

Further issues related to the scope of the disclosure order......................................... 34 

All types of evidence.................................................................................................. 34 

The disclosure and protection of confidential information ........................................ 35 

The disclosure of corporate statements submitted to a competition authority as 
part of an application for immunity or reduction of fines.......................................... 36 

Investigative privilege of competition authorities...................................................... 37 

No possibility to object to disclosure of unfavourable evidence ............................... 37 

Potential addressees of disclosure orders and their right to be heard ........................ 37 

Refusal to turn over evidence and destruction of evidence........................................ 38 

Sanctions for refusal to produce evidence and for destruction of evidence............... 39 

Protective measures to preserve relevant evidence.................................................... 40 

Chapter 4 — Binding effect of decisions adopted by competition authorities ......................... 41 

A. 

B. 

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The options in the Green Paper and the results of the public consultation ................ 41 

Acquis communautaire and possible measures to ensure effective antitrust 
damages actions ......................................................................................................... 42 

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1. 

2. 

a. 

b. 

c. 

d. 

Acquis communautaire: binding effect of decisions by the Commission .................. 42 

Binding effect of NCA decisions finding an infringement of Article 81 or 82 EC ... 43 

Irrebuttable probative effect of NCA decisions ensures the coherent application 
of Articles 81 and 82 EC and the effectiveness of antitrust damages actions............ 43 

Types of NCA decisions concerned........................................................................... 45 

Conditions for binding effect of NCA decisions........................................................ 46 

Territorial scope of binding effect of NCA decisions................................................ 47 

Chapter 5 — Fault requirements ............................................................................................. 50 

A. 

B. 

1. 

2. 

a. 

b. 

The options in the Green Paper and the results of the public consultation ................ 50 

Acquis communautaire and measures to ensure effective antitrust damages 
actions ........................................................................................................................ 51 

Fault requirement in the case law of the Court of Justice .......................................... 51 

Fault requirements under national law as a condition for a victim to exercise his 
right to damages ......................................................................................................... 52 

Member States with strict or irrebuttably presumed liability for infringements of 
Article 81 or 82 EC .................................................................................................... 52 

Member States requiring proof of elements of fault .................................................. 52 

Chapter 6 — Damages ............................................................................................................. 55 

A. 

B. 

1. 

a. 

b. 

2. 

a. 

b. 

The options in the Green Paper and the results of the public consultation ................ 55 

Acquis communautaire and measures to ensure effective antitrust damages 
actions ........................................................................................................................ 56 

The definition of damages.......................................................................................... 56 

The acquis communautaire ........................................................................................ 56 

Measures to ensure effective antitrust damages actions ............................................ 58 

The calculation of damages........................................................................................ 59 

The acquis communautaire ........................................................................................ 59 

Measures to ensure effective antitrust damages actions ............................................ 60 

Chapter 7 — The passing-on of overcharges........................................................................... 62 

A. 

B. 

1. 

The options in the Green Paper and the results of the public consultation ................ 62 

Measures to ensure effective antitrust damages actions ............................................ 63 

The passing-on shield against an action brought by a purchaser other than the 
final consumer............................................................................................................ 63 

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2. 

3. 

The passing-on sword in an action brought by a purchaser other than the direct 
purchaser .................................................................................................................... 65 

The passing-on shield and sword in joint, parallel or consecutive actions brought 
by purchasers at different levels in the distribution chain.......................................... 67 

Chapter 8 — Limitation periods............................................................................................... 70 

A. 

B. 

1. 

2. 

a. 

b. 

c. 

The options in the Green Paper and the results of the public consultation ................ 70 

Ensuring the effectiveness of antitrust damages actions............................................ 70 

The acquis communautaire ........................................................................................ 70 

Measures to ensure effective antitrust damages actions ............................................ 71 

The commencement date of the limitation period...................................................... 71 

The duration of the limitation period ......................................................................... 72 

The effect of public antitrust proceedings on the limitation period ........................... 72 

Chapter 9 — Costs of damages actions ................................................................................... 74 

A. 

B. 

1. 

2. 

a. 

b. 

3. 

4. 

The options in the Green paper and the results of the public consultation ................ 74 

Measures to ensure effective antitrust damages actions ............................................ 75 

Encouraging settlements ............................................................................................ 75 

The allocation of court costs and party costs ............................................................. 76 

The application of the “loser pays” principle............................................................. 76 

Court discretion as regards the allocation of costs..................................................... 77 

Legal provisions regarding determination of court fees ............................................ 79 

Funding of antitrust damages actions......................................................................... 79 

Chapter 10 — Interaction between leniency programmes and actions for damages .............. 81 

A. 

1. 

2. 

3. 

B. 

1. 

The options in the Green Paper and the results of the public consultation ................ 81 

Consensus on the necessity to protect leniency programmes and exclude 
discoverability of leniency applications..................................................................... 81 

Diverging opinions on whether to grant a conditional rebate on damage claims to 
successful leniency applicants.................................................................................... 82 

Support for the removal of joint liability for the successful leniency applicant ........ 83 

Measures regarding the interaction between leniency programmes and actions for 
damages...................................................................................................................... 84 

Exclusion of discoverability of corporate statements submitted by applicants for 
immunity and reduction of fines ................................................................................ 84 

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a. 

b. 

2. 

The protection granted should apply to applications for leniency submitted under 
the EC and national leniency programmes................................................................. 84 

The protection against disclosure granted to corporate statements............................ 86 

Limiting the scope of the civil liability of the successful immunity applicant .......... 88 

Chapter 11 — Conclusions ...................................................................................................... 90 

A. 

1. 

2. 

B. 

1. 

2. 

Measures to ensure the effectiveness of antitrust damages actions ........................... 90 

The acquis communautaire ........................................................................................ 90 

Measures to ensure effective antitrust damages actions ............................................ 92 

Instruments to ensure the effectiveness of antitrust damages actions........................ 96 

The need for a Community instrument underpinning national measures .................. 96 

The appropriate Community instruments................................................................... 97 

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A. 

1. 

1. 

2. 

3. 

1 
2 
3 

4 
5 

CHAPTER 1 — INTRODUCTION 

THE AIM OF THE WHITE PAPER 

The background 

On  19  December  2005  the  European  Commission  adopted  a  Green  Paper  on 
damages actions for breach of the EC antitrust rules (hereinafter the “Green Paper”).1 
The  purpose  of  the  Green  Paper  and  of  the  annexed  Staff  Working  Paper2  was  to 
identify the main obstacles to a more effective system of damages claims, and to set 
out  different  options  for  further  reflection  and  possible  action  to  improve  both 
follow-on and stand-alone actions.3 

The adoption of the Green Paper opened a period of public consultation which ended 
on  21  April  2006.  The  Green  Paper  was  met  with  broad  interest  in  the  antitrust 
community,  and  certainly  achieved  its  objective  of  raising  awareness  of  victims’ 
right  to  compensation,  and  of  the  obstacles  faced  by  victims  of  competition  law 
infringements when attempting to enforce their rights. Practically all the submissions 
received  accepted  the  complementary  role  of  private  actions  in  the  overall 
enforcement of EC competition rules. Also, most submissions agreed that victims of 
competition law infringements are entitled to damages and that national rules should 
enable  this  right  to  be  exercised  effectively.  The  submissions  on  the  Green  Paper, 
and the range of comments received more informally from stakeholders,4 highlighted 
the  difficulties 
the 
expectations  of  respondents  regarding  an  effective  system  of  private  enforcement.5 
However,  other  respondents  expressed  their  concerns  about  the  costs  of  private 
enforcement  and  therefore  called  on  the  Commission  to  refrain  from  setting  up  a 
system leading to excessive and unmeritorious litigation. 

in  bringing  damages  claims,  and  emphasised 

involved 

The  European  Parliament  and  the  European  Economic  and  Social  Committee 
(EESC)  contributed  to  the  debate  by  adopting  a  Resolution  and  an  Opinion  on  the 
Green  Paper.  On  25  April  2007,  the  European  Parliament  adopted  a  Resolution 
calling  on  the  Commission  to  “prepare  a  White  Paper  with  detailed  proposals  to 
facilitate  the  bringing  of  ‘stand-alone’  and  ‘follow-on’  private  actions  claiming 
damages (…) which addresses in a comprehensive manner, the issues raised in [its] 
resolution  and  gives  consideration,  where  appropriate,  to  an  adequate  legal 
framework”.  The  issues  raised  in  the  Resolution  are,  in  particular,  the  comple-

COMP(2005) 672 final. 
SEC(2005) 1732, hereinafter the “2005 Staff Working Paper”. 
Follow-on  actions  are  civil  actions  brought  after  a  competition  authority  has  found  an  infringement. 
Stand-alone  actions  are  civil  actions  which  do  not  follow  on  from  a  prior  finding  by  a  competition 
authority of an infringement of competition law. 
For example, on the occasion of a variety of dedicated conferences or in international fora. 
Private enforcement of EC competition rules can take different forms, actions for damages being one of 
them.  Private  enforcement  also  covers  actions  for  injunctive  relief  (to  stop  behaviour  contrary  to  the 
competition  rules),  actions  for  nullity,  as  well  as  the  use  of  the  competition  rules  as  a  defence,  in 
particular  against  actions  for  the  enforcement  of  a  contract  or  against  actions  for  the  enforcement  of 
other rights (e.g. intellectual property rights where such enforcement constitutes an abuse of a dominant 
position).  In  this  White  Paper,  the  Commission  is  focusing  on  damages  actions  so  as  to  render  the 
victims’ right to damages effective in Europe. 

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mentary role of actions for damages (and the issue of joint and several liability of the 
successful  leniency  applicant),  the  asymmetry  of  information  and  of  resources 
between  the  parties,  the  disclosure  of  evidence  inter  partes,  the  binding  nature  of 
national competition authorities  (“NCA”)  decisions, the  need for collective actions, 
the definition and quantification of damages, the promotion of settlements as well as 
the issues of passing-on defence, costs and limitation periods.6 On 20 October 2006, 
the  EESC  adopted  an  Opinion  on  the  Commission’s  Green  Paper.7  The  EESC’s 
Opinion  is  positive  about  the  Commission’s  efforts  to  facilitate  antitrust  damages 
actions  and  considers  that  the  Green  Paper  has  opened  up  a  broad  and  welcome 
debate on the need to make it easier for those injured by anti-competitive practices to 
recover  damages.  The  Opinion  supports  measures  at  Community  level  to  facilitate 
damages actions. 

The  Commission,  encouraged  by  the  comments  received  from  stakeholders,  the 
European  Parliament,  the  EESC  and  the  Member  States,  as  well  as  taking  into 
account the recent case law of the European Court of Justice (ECJ or the Court),8 has 
decided9  to  adopt  a  White  Paper  in  order  to  foster  and  further  focus  the  ongoing 
discussions  by  setting  out  concrete  measures  aimed  at  creating  an  effective  private 
enforcement system in Europe. 

The obstacles to the enforcement of the victims’ right to damages 

The  ECJ  acknowledged,  and  recently  confirmed,  that  the  right  to  damages  is 
necessary to guarantee the useful effect of the EC competition rules.10 However, the 
exercise  of  this  right  in  Europe  is  still  facing  considerable  hurdles.  First,  the 
traditional tort rules of the Member States, either of a legal or procedural nature, are 
often inadequate for actions for damages in the field of competition law, due to the 
specificities of actions in this field. In addition, the different approaches taken by the 
Member States11 can lead to differences in treatment and to less foreseeability for the 
victims as well as the defendants, i.e. to a high degree of legal uncertainty. 

A number of factors influence the victims’ choice whether or not to bring a damages 
action.  In  balancing  the  costs  and  benefits  of  bringing  a  damage  claim,  the  victims 
will  often  consider  that  the  difficulties  of  proving  their  claim,  combined  with  the 
uncertainty in outcome and the risks associated with a rejection of the claim, make it 
too difficult or hazardous, or not attractive enough, to enforce their rights in court. 

The  main  obstacles  have  been  described  and  analysed  in  the  Green  Paper  and  the 
2005 Staff Working Paper: the rules on access to evidence, the fault requirement, the 
definition  of  damages,  the  availability  of  the  passing-on  defence,  the  question  of 

of 

2006 

26  October 

EESC  Opinion 

The  Resolution  of  the  European  Parliament  of  25  April  2007  (2006/2207(INI))  can  be  found  at 
http://www.europarl.europa.eu/oeil/file.jsp?id=5378362. 
The 
http://eescopinions.eesc.europa.eu/viewdoc.aspx?doc=\\esppub1\esp_public\ces\int\int306\en\ces1349-
2006_ac_en.doc. 
Joined  Cases  C-295/04  to  C-298/04  Manfredi  [2006]  ECR  I-6619.  See  also  Case  C-453/99  Courage 
and Crehan [2001] ECR I-6297. 
See the Commission Legislative and Work Programme 2007 — COM(2006) 0629 final. 
Manfredi (footnote 8 above). 
See the conclusions of the study on the conditions of claims for damages in case of infringement of EC 
antitrust  rules  (hereinafter 
the  Commission’s  website  at 
http://ec.europa.eu/comm/competition/antitrust/others/actions_for_damages/study.html. 

the  “2004  Study”),  available  on 

(INT/306) 

found 

can 

be 

at 

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standing  of  indirect  purchasers,  the  question  of  collective  redress  mechanisms,  the 
costs of actions, the issues of limitation periods and of applicable law. 

With  regard  to  the  latter,  the  European  Parliament  and  the  Council  adopted  on 
11 July 2007 Regulation (EC) No 864/2007 on the law applicable to non-contractual 
obligations, also referred to as the Rome II Regulation.12 According to Article 6(3) of 
that  Regulation,  the  law  applicable  to  a  non-contractual  obligation  arising  out  of  a 
restriction of competition shall be the law of the country where the market is (likely 
to be) affected. However, when the market is (likely to be) affected in more than one 
country, as is often the case when Article 81 or 82 EC is violated, the claimant may 
also choose to base his claim on the law of the Member State where he is bringing 
his  claim.  In  order  to  limit  forum  shopping,  the  claimant  can  only  choose  that  law 
when  the  market  of  that  Member  State  is  directly  and  substantially  affected  by  the 
restriction of competition that gives rise to the damages claim.13 

The  Commission  believes  that  Article  6(3)  of  Regulation  864/2007  contains  an 
appropriate  applicable  law  rule  enabling  claimants  to  effectively  use  their  right  to 
obtain antitrust damages in case of an infringement of the EC competition rules. In 
particular,  these  new  rules,  read  together  with  the  rules  on  jurisdiction,14  allow  for 
procedural economy as they provide claimants with the option to have their case for 
antitrust  damages  heard  by  one  court  applying  one  single  law,  even  in  situations 
where  more  than  one  defendant  is  involved  and  where  the  damages  occurred  in 
several Member States. The Commission therefore does not consider it necessary to 
further address the issue of applicable law in the White Paper. 

In  recent  years,  some  Member  States  enacted  legislation  aimed  at  facilitating 
antitrust damages actions, even though not addressing all the issues identified in the 
Green  Paper.  There  is  no  indication  however  that  any  sizeable  number  of  other 
Member  States  is  likely  to  introduce,  in  the  foreseeable  future,  legislative  changes 
that ensure an effective legal framework for damages actions of victims of antitrust 
infringements. In addition, isolated initiatives can not ensure that a coherent level of 
effective  minimum  protection  of  the  victims’  entitlement  to  damages  is  achieved 
throughout  Europe.  Finally,  the  interaction  of  measures  facilitating  actions  for 
damages  with  various  aspects  of  public  enforcement  needs  to  be  addressed,  and 
individual  action  by  Member  States  is  not  sufficiently  capable  of  achieving  this  in 
any consistent manner. 

Since  the  Green  Paper,  one  can  observe  an  increase  in  awareness,  leading  to  more 
reported  antitrust  damages  cases,  especially  cases  following  on  decisions  of 
competition authorities, and most probably also to more settlements. Some of these 
cases  have  further  highlighted  the  difficulties  faced  by  the  victims  in  bringing  a 
damages  claim.  The  problems  identified  in  the  Green  Paper  remain  essentially 
unchanged and there is thus still a clear need to improve the conditions for effective 

12 

13 

14 

Regulation  864/2007  of  the  European  Parliament  and  of  the  Council  of  11  July  2007  on  the  law 
applicable to non-contractual obligations (“Rome II”, OJ 2007, L 199/40). 
Note  that  according  to  Article  6(4)  of  Regulation  864/2007,  the  applicable  law  pursuant  to  this 
provision may not be derogated from by an agreement between the parties. 
Regulation 44/2001  of  22 December 2000  on  jurisdiction  and  the  recognition  and  enforcement  of 
judgments in civil and commercial matters, OJ 2001, L 12/1. 

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13. 

14. 

15. 

B. 

1. 

16. 

compensation  of  victims  for  harm  suffered 
infringements. 

through  EC  competition 

law 

The need for facilitating measures and the positive effects of an enhanced level of 
actions for damages 

The Commission made clear in its 2005 Staff Working Paper that it does not intend 
to  incentivise  victims  to  bring  an  action  when  their  actions  are  not  meritorious.  It 
considers it fundamental, though, that those victims who have meritorious claims for 
damages  are  able  to  bring  such  actions  successfully,  and  are  not  deterred  from 
bringing an action to court due to the numerous obstacles they face. 

The Impact Assessment annexed to the White Paper has shown that in the absence of 
any  measures  to  facilitate  actions  for  damages,  most  of  the  harm  caused  by 
competition  law  infringements  will  continue  to  be  left  uncompensated,  and  victims 
and businesses that comply with the law will continue to have to absorb that loss.15 

Enhancing the effectiveness of actions for damages will, amongst other effects, mean 
that  compensation  of  the  harm  suffered  by  victims  of  illegal  anti-competitive 
behaviour will be achieved more often. Compensation of the harm is fundamental so 
that  companies  who  comply  with  the  law  do  not  suffer  from  a  competitive 
disadvantage, and victims who are harmed do not bear the costs of the infringements: 
these costs must be borne by the infringers. Victims have a right to compensation, as 
confirmed by the ECJ, and it is fundamental that they can enforce it effectively. 

Even  though  actions  for  damages  in  Europe  are  primarily  about  victims  effectively 
exercising Treaty rights, an enhanced level of actions for damages will also have the 
positive  effect  of  increasing  deterrence  for  potential  infringers.  Indeed,  actions  for 
damages can complement public enforcement by adding to the risk of administrative 
sanction, the risk of having to compensate the harm caused to the victims, and also 
by  widening  the  scope  of  enforcement  of  EC  competition  rules  to  cases  not  dealt 
with by the competition authorities. Better enforcement of the law, by increasing the 
risks associated with a breach of EC competition rules, will encourage companies to 
comply  with  the  law,  thus  helping  European  markets  to  remain  open  and 
competitive.  An  enhanced  level  of  actions  for  damages  will  also  help  develop  a 
culture  of  competition  amongst  market  participants  and  raise  awareness  of  the 
competition rules. 

A  BALANCED  EUROPEAN  SYSTEM  WHICH  PRESERVES  STRONG  PUBLIC 
ENFORCEMENT 

The designing of a balanced European system 

The Commission’s White Paper takes account of the stakeholder input it has received 
since the adoption of  the  Green Paper on the options put forward for discussion. It 
also gives consideration to the possible economic and social impacts of an enhanced 
level of actions for damages.16 In this White Paper the Commission suggests targeted 
measures  which  are  designed  to  effectively  tackle  the  identified  obstacles.  These 

15 

16 

See  the  Impact  Assessment  Report  annexed  to  the  White  Paper  (hereinafter  the  Impact  Assessment), 
section 2 and section 5.2.5. 
See the Impact Assessment. 

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17. 

18. 

3. 

19. 

20. 

21. 

measures are embedded in, and build on, the European legal cultures and traditions 
of  the  27  Member  States.  Great  care  has  been  taken  to  strike  a  balance  in  order  to 
have  effective  measures  which  do  not  result  in  a  situation  where  unmeritorious 
litigation are encouraged or facilitated. 

The importance of preserving effective public enforcement 

Since the adoption of the Green Paper many stakeholders have expressed the opinion 
that it is important to preserve the central role of the public authorities in the overall 
enforcement of EC competition rules. It was also often underlined that in Europe the 
main objective of damages actions was different from that of public enforcement, the 
former  primarily  pursuing  compensation  of  a  loss  (even  though  it  also  increases 
deterrence),  whereas  the  latter  is  primarily  pursuing  deterrence  and  overall 
compliance with the rules by penalising infringements of Articles 81 and 82 EC. 

As  confirmed  in  the  2005  Staff  Working  Paper,  the  aim  is  not  to  substitute  public 
enforcement,  or  parts  thereof,  with  actions  for  damages.  The  role  of  the  public 
authorities  will  continue  to  be  of  crucial  importance  in  detecting  anti-competitive 
practices such as cartels, where the special investigation powers vested in the public 
authorities  are  indispensable  for  effective  and  efficient  enforcement  of  competition 
law.  When  assessing  the  different  options  put  forward  for  discussion  in  the  Green 
Paper,  and  then  identifying  the  measures  contained  in  this  White  Paper,  the 
Commission  has  borne  in  mind  the  need  to  maintain  a  strong  and  effective  public 
enforcement system. 

The  interaction  between  public  enforcement  and  actions  for  damages:  the 
underlying objectives 

The Green Paper sought consultation on the interaction between actions for damages 
and  public  enforcement,  in  order  to  avoid  tensions  between,  on  the  one  hand, 
rendering  the  victims’  right  to  damages  effective  in  Europe,  and  on  the  other, 
preserving the effectiveness of public enforcement.17 

Actions for damages and enforcement by public authorities necessarily interrelate to 
some  extent.  Greater  enforcement  by  both  public  authorities  and  through  private 
actions will increase deterrence and will increase the probability that infringers bear 
the costs for the harm caused. This will normally lead to a decrease, in the long run, 
of the number of infringements. 

The Commission’s objective is to create an effective system of private enforcement 
through  damages  actions  as  a  complement  to,  and  not  a  substitute  for,  public 
enforcement.  This  notion  of  complement  covers  two  categories  of  cases.  Firstly,  it 
covers those cases where the public authorities, for reasons of limited resources and 
public  priorities,  do  not  take  any  enforcement  action,  or  limit  their  enforcement 
activities to specific aspects of a particular behaviour. In that case, private actions for 
damages  can  extend  the  enforcement  of  EC  law  through  what  are  known  as  stand-
alone  actions.  Secondly,  private  enforcement  covers  cases  where  a  private  party 
claims  damages  for  harm  arising  from  an  infringement  established  by  a  public 
authority. These are known as follow-on actions. The Commission ensured that the 

17 

See question J in the Green Paper and the 2005 Staff Working Paper. 

EN 

11 

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measures  contained  in  the  White  Paper  are  designed  in  such  a  way  as  not  to 
jeopardise public enforcement. 

C. 

22. 

THE MEASURES PROPOSED IN THE WHITE PAPER 

In  the  White  Paper,  the  Commission  proposes  policy  choices  in  relation  to  the 
following issues: 

•  standing: indirect purchasers and collective redress (Chapter 2); 

•  access to evidence through inter partes disclosure (Chapter 3); 

•  binding nature of competition authorities’ decisions (Chapter 4); 

•  fault (Chapter 5); 

•  definition of damages (Chapter 6); 

•  availability of the passing-on defence (Chapter 7); 

•  limitation periods (Chapter 8); 

•  costs of damages actions (Chapter 9); 

•  interaction between actions for damages and leniency programmes (Chapter 10). 

23. 

The White Paper is accompanied by an Impact Assessment. It assesses the economic 
and social impacts of an enhanced level of antitrust damages actions in Europe and 
of the policy measures contained in the White Paper. 

EN 

12 

   EN 

CHAPTER 2 — STANDING: INDIRECT PURCHASERS AND COLLECTIVE REDRESS 

A. 

24. 

25. 

26. 

1. 

27. 

2. 

28. 

THE  OPTIONS  IN  THE  GREEN  PAPER  AND  THE  RESULTS  OF  THE  PUBLIC 
CONSULTATION 

In the event of small damages claims, it is unlikely that victims will bring individual 
actions against the perpetrators of competition law infringements given the costs of 
litigation  in  relation  to  the  harm  they  have  suffered.  Even  when  a  number  of  such 
actions are brought, they do little to deter the perpetrators from violating the law, and 
the  full  harm  caused  to  society  is  not  repaired.  To  make  enforcement  of  the 
competition rules more effective, the Green Paper put forward two options aimed at 
encouraging  some  form  of  collective  actions,  such  as  actions  taken  on  behalf  of 
consumers by consumer organisations and collective actions for businesses. 

The issue of collective redress is all the more relevant when indirect purchasers are 
the victims of the violations. Their damage claims face increased obstacles due to the 
number  of  layers  between  them  and  the  infringers  (e.g.  production,  distribution, 
retail).  A  possible  way  of  reducing  the  burden  for  indirect  purchasers’  claims  is  to 
allow some form of collective redress. 

This Chapter analyses the issue of standing with regard to indirect purchasers as well 
as collective and representative actions. 

Standing of indirect purchasers 

In  its  Green  Paper,  the  Commission  indicated  that  the  question  of  standing  for 
indirect purchasers and the question of how, if these purchasers have standing, their 
claim  can  be  brought  are  two  issues  which  are  closely  linked.  Comments  were 
therefore  invited  on  both  issues.18  Some  respondents  to  the  Green  Paper 
acknowledged  that  granting  standing  to  indirect  purchasers  could  run  counter  to 
effective  enforcement  of  Articles  81  and  82  EC,  given  the  complexities  faced  by 
indirect  purchasers’  claims.  However,  a  majority  of  respondents  were  opposed  to 
limiting the standing to direct purchasers. Such limitation was usually considered to 
be contrary to the underlying principle of full compensation. 

Collective redress 
The first option19 put forward for discussion in the Green Paper suggested giving a 
cause of action to consumer associations without depriving individual consumers of 
their  right  to  bring  an  individual  action.  In  their  submissions,  respondents  were 
invited to consider several issues raised by this option, such as standing (a possible 
registration or authorisation system), the distribution of damages (whether damages 
go to the association itself or to its members), and the definition of damages (on the 
basis of the harm suffered or of the illegal gain). The second option20 in the Green 
Paper, which may be used in complement to the previous one, was to enact special 

18 
19 
20 

See options 21 to 24 of the Green Paper. 
See option 25 of the Green Paper. 
See option 26 of the Green Paper. 

EN 

13 

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provisions  allowing  collective  actions  by  groups  of  purchasers  other  than  final 
consumers. 

In reaction to the Green Paper, some respondents opposed any initiative which would 
facilitate collective redress. The objections focus principally on the potential costs of 
collective  redress  mechanisms  for  society,  and  on  the  risk  of  multiple  recoveries 
from infringers. Those opposing any  initiative in that field evoke the US system in 
their argumentation, mentioning the excesses this system has led to, and the resulting 
costs for business and society as a whole. 

However,  many  respondents  recognise  the  need  to  allow  consumer  claims  to  be 
aggregated in some way, in particular in order to reduce the difference between the 
costs  of  the  action  and  the  often  small  value  of  the  damage  individually  suffered. 
Among those not opposed to collective redress mechanisms there is some support for 
allowing actions to be brought through consumer organisations. Such representative 
actions by consumer organisations are said to serve the purpose of rendering rights 
under  competition  law  more  effective  and  accessible  to  citizens,  while  clearly 
moderating  the  excesses  and  external  costs  associated  with  certain  types  of  “class 
actions” (such as abusive settlements). However, opinions diverge on the standing of 
consumer  organisations,  some  respondents  favouring  an  authorisation  system  while 
others  point  out  that  such  a  system  is  not  necessary  in  Europe  to  avoid  abuses.  On 
other  practical  issues,  especially  the  distribution  of  damages,  opinions  also  diverge 
but seem to favour the solution where the award would directly benefit the victims 
themselves, in accordance with the principle of compensation. 

The question of the special provision for collective actions for groups of purchasers 
other than final consumers was less commented on. A number of submissions were 
favourable  to  such  collective  means  of  action  for  small  businesses,  with  some 
underlining that collective actions should be available for all types of victims since 
there  was  no  justification  for  distinguishing  between  end  consumers  and  small 
businesses. 

The  consultation  therefore  shows  that  the  availability  of  some  form  of  collective 
redress for the victims of competition law infringements is supported, but that such a 
system  should  be  designed  in  a  way  that  protects  against  unmeritorious  actions. 
Generally it is believed that actions through consumer associations are less likely to 
lead to abuses. 

ACQUIS COMMUNAUTAIRE AS REGARDS STANDING OF INDIRECT PURCHASERS 

In Courage and Crehan, the ECJ stated that: 

“the practical effect of the prohibition laid down in Article 81(1) EC 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”.21 (emphasis added) 

Since  the  publication  of  the  Green  Paper,  the  ECJ  has  reaffirmed  this  position  in 
Manfredi, stating: 

29. 

30. 

31. 

32. 

B. 

33. 

34. 

35. 

21 

Courage v Crehan (footnote 8 above) at paragraph 26. 

EN 

14 

   EN 

                                                 
36. 

37. 

C. 

38. 

1. 

a. 

39. 

22 
23 

“It follows that any individual can claim compensation for the harm suffered where 
there  is  a  causal  relationship  between  that  harm  and  an  agreement  or  practice 
prohibited under Article 81 EC”.22 (emphasis added) 

It can be noted, first, that although the judgment only refers to Article 81 EC because 
of  the  facts  underlying  the  case,  the  reasoning  of  the  Court  clearly  applies  also  to 
Article 82 cases. 

Second, the wording used by the ECJ (“any individual” having suffered harm caused 
by  the  infringement)  is  such  that  it  encompasses  indirect  purchasers.  In  fact, 
infringements of Articles 81 and 82 EC may cause quite significant harm to indirect 
purchasers. However, given that the Court emphasised the requirement of causality, 
the finding of the Court does not exclude national provisions or case law that lead to 
barring  damages  actions  brought  by  certain  indirect  purchasers  for  reasons  of 
remoteness.  The  Commission  welcomes  these  clarifications  by  the  Court  and  does 
not  intend  to  suggest  any  limitation  on  standing  of  anyone  who  can  show  a  causal 
link between his harm and an infringement of Article 81 or 82 EC. 

Acquis communautaire: 

Any individual can claim compensation for the harm suffered where there is a 
causal relationship between that harm and an infringement of Article 81 or 82 
EC. This principle also applies to indirect purchasers. 

MEASURES AS REGARDS COLLECTIVE REDRESS 

On  the  basis  of  the  results  of  the  public  consultation,  it  appears  appropriate  to 
examine possible collective redress mechanisms aimed at defending the interests of 
consumers  and  businesses23  having  suffered  from  competition  law  infringements. 
The  following  sections  (1)  underline  the  necessity  to  provide  for  such  mechanisms 
for  all  categories  of  victims  of  competition  law  infringements,  and  (2)  identify 
effective  means  of  collective  redress  in  the  competition  field.  A  final  section  (3) 
addresses  the  relationship  between  the  suggested  measures  and  other  Commission 
initiatives in the field of collective redress. 

Necessity of collective redress mechanisms and identification of key issues 

Necessity to provide for means of collective redress for all categories of victims 
of competition law infringements 

Individual  consumers  and  small  businesses  are  less  likely  to  bring  individual 
damages claims against the perpetrators of competition law infringements in cases of 
scattered  low-value  damages.  These  victims  may  be  dissuaded  from  starting  an 

Manfredi (footnote 8 above) paragraph 61. 
The  term  “businesses”  refers  to  all  the  persons,  legal  or  natural,  acting  for  purposes  falling  primarily 
within their trade, business and profession (see for the definition also the Green Paper on the Review of 
the Consumer Acquis COM(2006) 744 final). Whilst it is not appropriate to establish certain thresholds 
(e.g. in terms of size or turnover) for standing, the collective redress mechanisms would be more used 
by small businesses for which they would be particularly well-suited given the obstacles they face when 
bringing  an  action  for  damages.  These  obstacles  are  usually  not  encountered  in  the  same  manner  by 
bigger businesses. 

EN 

15 

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individual action given the costs, delays and burdens involved in actions for damages 
in this field, compared to the value of their individual claim. Also, the victims are not 
always  aware  of  the  existence  of  the  competition  law  infringement,  often  secret  or 
difficult to appreciate, or of the extent of the losses suffered due to this infringement. 
Moreover,  the  uncertainty  as  to  the  outcome  of  the  proceeding,  mainly  due  to  the 
difficulty of having access to the relevant evidence, also acts as a disincentive. This 
leads  to  the  unsatisfactory  situation  that  the  victims  concerned  receive  no  compen-
sation  and  the  illegal  gain  often  remains  in  the  hands  of  the  tortfeasors.  Finally,  a 
situation  where  national  courts  would  have  to  handle  a  multitude  of  scattered  low-
value  individual  claims  with  no  possibility  of  collective  redress  would  lead  to 
procedural inefficiency. 

Even  though  some  of  the  difficulties  outlined  above  may  to  a  certain  extent  be 
addressed  through  certain  specific  remedies  (e.g.  by  alleviating  cost  rules  or 
improving access to evidence), it remains that the costs and uncertainty in outcome 
make  it  necessary  for  the  victims  to  be  able  to  share  the  risks  and  costs  associated 
with  the  action.  Therefore,  competition  law  is  a  field  where  collective  redress 
mechanisms  can  significantly  enhance  the  victims’  ability  to  obtain  compensation 
and  thus  access  to  justice,  and  contribute  to  the  overall  efficiency  in  the 
administration of justice. For the reasons set out above, it is essential that collective 
redress mechanisms are available for competition law infringements. 

Collective  redress  for  low-value  damages  can  be  achieved  through  a  number  of 
different  mechanisms,  either of  a  voluntary  or compulsory nature,  either  judicial or 
non-judicial, either initiated by a group of victims, a representative body or a public 
authority.  A  non-judicial  voluntary  resolution  of  claims  for  damages  may  often  be 
preferable for victims as well as for infringers, since such resolution does not involve 
the  same  costs  and  burden  as  do  judicial  proceedings,  and  usually  allows  for  swift 
resolution of the matter at stake. However, alternative dispute resolution (ADR) and 
other  voluntary  mechanisms  can  only  be  effective  and  efficient  if  there  is  another 
effective option for the victim should no fair resolution be agreed on by the infringer. 
Judicial  collective  redress  mechanisms,  which  may  usefully  be  complemented  by 
ADR, are therefore necessary to improve the situation of victims of competition law 
infringements, even though safeguards should be put in place so as to avoid abusive 
litigation.  By  allowing  an  aggregation  of  claims  for  damages  that  would  otherwise 
not  be  viable  in  individual  court  action,  judicial  collective  redress  mechanisms  not 
only  ensure  the  victims’  right  of  access  to  justice,  but  also  reduce  the  inequality 
between the victims (often the weaker party) and the infringers (often the financially 
stronger party) in out-of-court/settlement discussions. 

It  is  therefore  necessary  to  design  facilitating  measures  enabling  consumers  and 
small  businesses  to  effectively  seek  redress  in  court  for  the  harm  suffered  from 
competition  law  infringements.  These  measures  would  play  an  important  role  in 
rendering the victims’ right to antitrust damages more effective in Europe. 

Key issues to be addressed 

The  development  of  collective  redress  mechanisms  in  Europe  has  increasingly 
attracted  attention  because  of  the  importance  of  these  mechanisms  for  access  to 
justice,  but  also  due  to  the  excesses  that  have  been  reported  from  other 

40. 

41. 

42. 

b. 

43. 

EN 

16 

   EN 

jurisdictions.24 It is important to underline that specific features may be designed in 
order to serve as effective safeguards against misuse of the system. These measures 
can  contribute  to  ensuring  that  the  collective  redress  mechanisms  for  victims  of 
competition law infringements in Europe achieve the objective of improving access 
to  justice  and  guaranteeing  compensation,  whilst  avoiding  imposing  unnecessary 
costs on potential defendants and the judicial system. 

The  aggregation  of  individual  claims  in  court  raises  a  number  of  issues  that  are 
specific to collective redress mechanisms, and also amplifies the practical importance 
of certain general issues in comparison with individual actions. The actual design of 
collective  redress  mechanisms  therefore  requires  that  these  issues  be  addressed.  At 
this  stage,  however,  the  purpose  of  this  section  is  to  stress  the  importance  of  these 
issues rather than to already set out concrete solutions. 

The  first  key  issue  is  the  funding  of  the  action.25  Even  if  collective  redress 
mechanisms allow for more efficient bundling of claims and sharing of the risks and 
costs  among  a  greater  number  of  victims,  the  fact  remains  that  available  ways  of 
funding  can  have  a  serious  impact  on  the  use,  or  misuse,  of  collective  redress 
mechanisms. Launching a court action requires initial funding, an up-front cost that 
may discourage victims from bringing an action, as well as the ability to face the cost 
exposure, when relevant.26 Several ways of funding group litigation can be envisaged 
and  they  depend  on  the  specificities  of  the  collective  redress  mechanism  in  place. 
The funding may be provided by the victims launching the action themselves, or by 
the  entity  representing  the  latter,27  by  legal  aid  mechanisms  or  other  publicly  or 
privately administered funds, by insurance companies or other players on the market, 
or by the claimant’s lawyers working under a contingency fees agreement. In order 
to  limit  the  cost  exposure,  early  resolution  through  settlement  negotiations  may  be 
facilitated  or  encouraged  (e.g.  at  the  initiative  of  the  judge).  By  limiting  the  costs 
incurred and allowing a swift resolution of the case, early settlements are beneficial 
to the parties as well as to the judicial system. 

The second key issue is the way the group of victims, whose claims are collectively 
pursued  in  court,  is  (i)  defined  and  (ii)  represented,  and  (iii)  what  control 
mechanisms are put in place. First, the way the group of victims is defined influences 
the practical functioning of the mechanism (e.g. how many victims will participate to 
the action, the way damages will be quantified and distributed, etc.). Several systems 
may  be  envisaged:  the  group  may  be  strictly  defined  (e.g.  strict  identity  of  harm, 
named  victims)  or  more  loosely  defined  (e.g.  similarity  of  harm,  unnamed  victims, 
etc.).  Affiliation  to  the  group  may  be  limited  to  victims  that  have  expressly  stated 

Excesses  in  US  class  action  litigation  have  often  been  mentioned,  and  the  risk  of  importing  these 
excesses into Europe was raised. It is important to note, however, that the overall legal context in the 
US, which goes well beyond the mere class action mechanism, is very different from the one in Europe. 
US class actions in antitrust cases are characterised by a combination of features that is very specific to 
the  US,  including  jury  trial,  one-way  shifting  of  costs,  treble  damages,  wide  pre-trial  discovery, 
contingent fees agreements and an opt-out mechanism. The introduction in Europe of features similar to 
one or some of these features may not produce the same effects. For instance, the introduction of opt-
out mechanisms in Portugal and The Netherlands is not reported to have led to similar excesses. 
For an analysis of the costs of proceedings, see Chapter 9. 
This is generally the case in Europe where the prevailing cost rule is the loser-pays rule. 
Representative entities may, for instance, be financed through the fees paid by their members (e.g. trade 
associations), public subsidies (e.g. consumer associations) and/or proceeds from commercial activities. 

44. 

45. 

46. 

24 

25 
26 
27 

EN 

17 

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47. 

2. 

48. 

a. 

49. 

their intention to be included in the action or, on the contrary, to all those who have 
not expressly opted out of the action. Finally, inclusion in the group may be possible 
until the initiation of the action, or on the contrary, be possible until a very late stage 
in the procedure. Moreover, the way victims can be represented may have practical 
consequences, for instance on the number of actions that will be brought (depending 
on  how  strictly  eligibility  is  defined).  Lastly,  there  may  be  different  degrees  of 
control mechanisms put in place (e.g. through various degrees of court supervision) 
in order to guarantee an appropriate definition of the group of victims, the adequacy 
of the representation or to avoid unmeritorious actions being brought. 

The third key issue is the quantification and distribution of the damages. The more 
loosely  the  group  of  victims  is  defined,  the  more  difficult  it  will  be  to  precisely 
quantify the harm suffered by all the individual claimants, and to actually distribute 
the  damages  awards  to  the  victims.  Distribution  of  the  award  itself  may  be  direct 
(e.g.  by  the  defendant  or  by  an  independent  fund,  with  various  possible  degrees  of 
action requested from the victims) and may exceptionally be more indirect (e.g. cy-
pres distribution,28 distribution to a public interest foundation). 

Measures ensuring effective collective redress mechanisms in the competition field 

Two  systems,  which  are  complementary,  effectively  address  the  concerns  outlined 
above in the competition field, both for follow-on and stand-alone antitrust damages 
actions.  When  further  implemented,  they  should  address  the  key  issues  outlined  in 
the preceding section and contain sufficient safeguards to avoid abusive litigation in 
the competition field. These two mechanisms are, on the one hand, a representative 
action  brought  by  qualified  entities,  and  on  the  other  hand,  an  opt-in  collective 
action. They would usefully allow victims to enforce their rights, thereby providing 
them with a minimum level of protection beyond which Member States could decide 
to go depending on their legal traditions.29 

A representative action for damages brought by qualified entities 

A  representative  action  for  damages  brought  by  entities  with  certain  characteristics 
may  constitute  an  appropriate  collective  redress  mechanism  in  the  field  of 
competition  law.  A  representative  action  for  damages  is  an  action  brought  by  a 
natural or legal  person on  behalf of two or more individuals or businesses who are 
not themselves party to the action, and aimed at obtaining damages for the individual 
harm  caused  to  the  interests  of  all  those  represented  (and  not  to  the  representative 
entity). One may think of a consumer association defending consumers’ interests, or 
a trade association defending the interests of its members active in a given industry. 
It  is  obviously  important  that  qualified  entities  that  are  about  to  bring,  or  have 
brought,  a  damages  action  are  under  a  clearly  set  out  obligation  to  use  effective 
mechanisms for informing the victims they represent.  

28 

29 

Distribution  according  to  the  “cy-pres”  doctrine  means  that  the  damages  awarded  are  not  distributed 
directly to those injured to compensate for the harm they suffered (for instance because they cannot be 
identified) but are rather used to achieve a result which is as near as may be (e.g. damages attributed to 
a fund protecting consumers’ interests in general). 
As  it  is  further  explained  in  Chapter  9  below,  complementary  early  resolution  of  disputes,  especially 
through settlements reached via alternative dispute resolution mechanisms, is beneficial to the parties as 
well as to the judicial system, and should therefore be encouraged. 

EN 

18 

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50. 

51. 

52. 

53. 

Such  a  representative  action  is  appropriate  in  competition  cases  because  consumer 
organisations,  trade  associations  or  State  bodies  having  as  their  object  to  protect 
specific  interests  may  be  less  reluctant  to  start  actions  against  competition  law 
infringers  than  the  individual  consumers  or  small  businesses  whose  interests  have 
been harmed. One reason is that an action for damages against the infringers would 
be  related  to  their  core  activity  (i.e.  the  protection  of  specific  interests),  whereas 
especially small businesses may not be able to invest time and resources in an action 
to the detriment of their usual business activity. Also undertakings, especially SMEs, 
may  be  reluctant  to  start  an  action  against  a  commercial  partner  with  whom  they 
conduct  business  on  a  regular  basis.  Similarly,  for  consumers,  costs,  delays  and 
administrative  burdens  involved  in  judicial  proceedings  may  discourage  them  from 
bringing  an  action,  in  particular  if  they  suffered  a  relatively  small  economic  loss. 
While  representative  actions  for  damages  are  appropriate  for  competition  cases, 
procedures  for  representative  bodies  to  bring  this  type  of  action  on  behalf  of  the 
victims they represent are, for the main part, either not available under national law 
or not fully suitable. 

(i) Definition of qualified entities 

Standing should be restricted to certain types of entities so as to exercise some public 
control  over the entities  able to bring representative actions, e.g. verification of the 
legitimacy of the interests to be represented. However, the definition of the entities 
having  standing  should  not  be  overly  restricted  so  that  the  possibility  of  a 
representative  action  remains  an  effective  and  accessible  means  of  redress. 
Therefore,  standing  for  representative  actions  in  the  competition  field  should  be 
authorised for two types of entities.  

The  first  type  would  include  entities  representing  legitimate  and  defined  interests, 
officially  designated  in  advance  by  their  Member  State  to  bring  representative 
actions for damages on behalf of identified or, in rather restricted cases, identifiable 
victims30 (not necessarily their members). In order to be designated, these qualified 
entities  would  need  to  meet  specific  criteria  set  in  the  law,  which  give  sufficient 
assurance that abusive litigation is avoided.31 

The second type would be entities that would be certified, in order to be able to bring 
a  representative  action  in  relation  to  a  particular  infringement,  on  an  ad  hoc  basis 
according  to  the  procedures  laid  down  in  the  national  law  of  their  Member  State. 
Eligibility should be limited to entities whose primary task is to protect the defined 
interests  of  their  members,  other  than  by  pursuing  damages  claims  (e.g.  a  trade 
association  in  a  given  industry)  and  which  give  sufficient  assurance  that  abusive 
litigation is avoided.32 

30  

31  

32 

Victims  shall  normally  be  identified  either  at  the  beginning  of  the  proceedings  or  at  a  later  stage. 
Exceptionally there may be no need to identify the victims, in particular where the damages awarded to 
the  representative  entity  are  distributed  to  related  entities  or  used  for  related  purposes,  as  set  out  in 
paragraph 56. 
For  an  example  of  such  mechanism  and  possible  but  non  exhaustive  criteria  for  designation,  see  for 
instance Article 3 of 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 1998 L 166/51). 
As regards the information of the members, see paragraphs 49 and 61 below. 

EN 

19 

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54. 

55. 

56. 

b. 

57. 

58. 

This second type of representative entity (ad hoc certified entity), as opposed to the 
first type (qualified entities designated in advance), would only be able to represent 
the interests of its members, which are identified. The entity may also decide to bring 
a  representative  action  on  behalf  of  a  subgroup  of  its  members,  which  would  be 
identified or identifiable victims of the competition law infringement. 

EC  competition  law  infringements  are  likely  to  affect  consumers  and  small 
businesses  located  in  several  Member  States,  and  the  court  competent  to  hear  a 
damage  claim  may  be  located  in  a  Member  State  different  from  the  one  where  the 
qualified  entity  willing  to  bring  an  action  is  located.  Therefore,  entities  having 
standing in one Member State should automatically be granted standing in all other 
Member  States,  without  having  to  be  certified  in  the  latter.  This  rule  should  apply 
both  to  entities  designated  in  advance  and  those  certified  on  an  ad  hoc  basis  for 
bringing an action in relation to a particular infringement. 

(ii) Distribution of damages 

The  damages  would  be  awarded  to  the  representative  entity,  who  is  the  party 
bringing the action.33 Where possible, it is preferable that the damages be used by the 
entity to directly compensate the harm suffered by all those represented in the action 
(e.g.  the  harm  suffered  by  the  producers  in  a  given  industry).  However,  it  may  be 
necessary to reflect on the possibility that, exceptionally, the damages awarded to the 
representative entity are distributed to related entities or used for related purposes. 

An opt-in collective action 

In  a  collective  action,  claims  from  individuals  or  businesses  are  combined  in  one 
single  action.34  A  collective  action  differs  from  a  representative  action  where  only 
the qualified entity brings a claim. In a collective action, as opposed to representative 
actions as defined above, the claimant himself has suffered harm. A collective action 
system improves the situation of the claimants by rendering the cost/benefit analysis 
of the litigation more attractive, since it allows them to share the evidence obtained 
as  well  as  the  costs,  but  also  more  indirectly  by  reinforcing  their  position  in  the 
litigation and providing moral support. A collective action also differs from the mere 
joining  of  individual  claims.  The  joining  of  individual  claims  has  also  some 
advantages,  such  as  ensuring  consistency  in  the  outcome  of  the  individual  claims, 
facilitating  the  sharing  of  evidence  and  providing  moral  support  for  the  individual 
claimants, but does not in itself render the cost/benefit analysis more attractive since 
each action has to be pursued individually. 

The opt-in collective action system that should be envisaged is a  system  where  the 
victims  have  to  express  their  intention  to  be  included  in  the  action.  An  opt-in 
collective action system would usually result in a smaller number of victims claiming 
damages  than  in  an  opt-out  system,  thereby  limiting  corrective  justice,  and  would 
have as a consequence that some of the illicit gain may be retained by the infringers, 
thereby limiting the deterrent effect of the mechanism. By requiring the identification 
of  the  claimants  (and  the  specification  of  their  alleged  harm  suffered),  an  opt-in 

33 
34 

With respect to the definition of damages, see Chapter 6 Section B. 
In an opt-in collective action, the claims brought in the single action are the claims of the victims who 
opted-in.  In  an  opt-out  collective action,  the  claims  brought  in  the  single  action  are  the  claims  of  the 
victims who have not opted out. 

EN 

20 

   EN 

                                                 
collective  action  may  also  render  the  litigation  in  some  way  more  complex  since  it 
increases  the  defendant(s)  possibility  to  dispute  each  victim’s  harm.  However,  the 
analysis in the field of competition suggests that an opt-in collective action should be 
preferred  to  an  opt-out  collective  action  in  which  a  person  can  bring  an  action  on 
behalf of a class of unidentified persons. Combined with other features, such opt-out 
actions  have  in  other  jurisdictions  been  perceived  to  lead  to  excesses.  In  particular 
there is an increased risk that the claimants lose control of the proceedings and that 
the  agent  seeks  his  own  interests  in  pursuing  the  claim  (principal/agent  problem). 
Opt-in mechanisms are more similar to traditional litigation, and would therefore be 
more easily implemented at national level. 

59. 

In  accordance  with  the  principle  of  full  compensation,  the  damages  awarded  in  an 
opt-in collective action for damages should correspond to the harm suffered by those 
included in the action. The issue of distribution of damages awarded would not cause 
any particular difficulty since the claimants would be individually identified. 

Victims  of  competition  law  infringements  should  be  able  to  bring  an  opt-in 
collective  action  for  damages  or  to  be  represented  in  a  representative  action 
for damages brought by qualified entities. 

Qualified  entities,  able  to  act  on  behalf  of  identified  or,  in  rather  restricted 
cases, identifiable victims should include (i) entities designated in advance by 
the  Member  States  according  to  national  procedures,  representing  legitimate 
and defined interests; and (ii) other existing entities whose primary task would 
be  to  protect  the  defined  interests  of  their  members,  other  than  by  pursuing 
damages  claims,  which  would  be  certified  on  an  ad  hoc  basis  in  relation  to  a 
particular infringement according to national procedures. 

The  damages  awarded  in  an  opt-in  collective  action  or  in  a  representative 
action for damages should correspond to the harm suffered by those included 
or represented in the action. 

c. 

60. 

The  relation  between  representative  actions,  opt-in  collective  actions  and 
individual actions 

Representative  actions  and  opt-in  collective  actions  can  act  as  mutually 
complementary means of collective redress. First, a qualified entity may not have the 
resources  to  simultaneously  handle  several  actions  related  to  distinct  infringements 
and  may  decide  to  prioritise  its  action.  The  qualified  entity  may  also  be  prevented 
from bringing an action because of a conflict of interest, for example when a trade 
association  has  as  members  both  victims  of  a  competition  law  infringement  and 
infringers.  Secondly,  there  may  be  subgroups  of  victims  which,  even  though  they 
could  theoretically  be  represented  by  the  same  qualified  entity,  may  want  to  bring 
distinct claims collectively. Finally, it is possible that the interests of certain groups 
of victims are not represented by any existing qualified entity (e.g. SMEs active in a 
new market with no trade association). 

61. 

The  coexistence  of  representative  actions,  collective  actions  and  possible  separate 
individual claims raises the issue of their interrelationship. In particular, it is possible 
that the interests of those represented in a representative action for damages, and of 
those victims having decided to bring a distinct claim, either individually or through 

EN 

21 

   EN 

an  opt-in  collective  action,  coincide.  The  basic  principle  should  be  that  individual 
victims  are  not  deprived  of  their  right  to  bring  an  action  for  damages  (either 
individually  or  through  an  opt-in  collective  action)  if  they  so  elect  nor  from  their 
right  not  to  bring  an  action  at  all.  It  is  therefore  important  that  qualified  entities 
inform  the  victims  they  represent  as  stated  in  paragraph  49.  Finally,  necessary 
safeguards should be put in place in order to avoid the same harm being compensated 
several  times  through  the  various  means  of  action  available  (individual,  collective 
and representative actions). 

The relationship with other Commission initiatives in the field of collective redress 

As regards consumer collective redress more generally, the Commission launched, in 
March 2007, two studies on collective redress, which are not specific to competition 
law.  The  first  of  these  studies  will  evaluate  the  effectiveness  and  efficiency  of  the 
national collective redress systems that currently exist in EU Member States, assess 
whether  consumers  suffer  a  detriment  in  those  Member  States  where  collective 
redress mechanisms are not available, and examine the existence of negative effects 
for the Single Market and distortions of competition. The second study will analyse 
in  detail  the  problems  faced  by  consumers  in  obtaining  redress  for  mass  claims,  as 
well as the economic consequences of such problems for consumers, enterprises and 
the market.  

After  receiving  the  results  of  these  studies,  the  Commission  intends  to  publish  a 
Communication  on  consumer  collective  redress 
in  December  2008.  This 
Communication will be used to consult on the options that are available in relation to 
consumer  collective  redress.  Following  this  consultation,  the  Commission  will 
consider  whether,  and  if  so,  to  which  extent  an  initiative  on  consumer  collective 
redress is necessary at EU level.  

Should  the  further  analysis  show  that  a  possible  broader  initiative  would  not  be 
appropriate  to  effectively  tackle  the  difficulties  encountered  by  victims  of 
competition  law  infringements,35  specific  measures  may  be  needed  to  render  these 
victims' rights to compensation effective. 

3. 

62. 

63. 

64. 

35 

See paragraphs 39 to 42. 

EN 

22 

   EN 

                                                 
A. 

65. 

66. 

67. 

68. 

69. 

CHAPTER 3 — ACCESS TO EVIDENCE: INTER PARTES DISCLOSURE 

THE  OPTIONS  IN  THE  GREEN  PAPER  AND  THE  RESULTS  OF  THE  PUBLIC 
CONSULTATION 

Competition  cases  are  particularly  fact-intensive.  The  finding  of  an  antitrust 
infringement,  the  determination  of  damages  and  the  establishment  of  the  relevant 
causal  links  all  require  the  assessment  of  a  variety  of  often  complex  factual 
elements.36 All these elements must be corroborated by appropriate evidence. 

Competition  cases  are  characterised  by  a  very  asymmetric  distribution  of  the 
available  information  and  the  necessary  evidence:  it  is  often  very  difficult  for 
claimants  to  produce  the  required  evidence,  since  many  of  the  relevant  facts  are  in 
the  possession  of  the  defendant  or  of  third  persons  and  are  often  not  known  to 
claimants in sufficient detail. 

In view of these circumstances, it is widely acknowledged, and the comments on the 
Green  Paper  confirm  this,  that  the  difficulty  for  a  claimant  of  obtaining  all  the 
evidence necessary to demonstrate his case for antitrust damages constitutes one of 
the  major  obstacles  to  antitrust  damages  actions.  The  Green  Paper  put  forward  for 
discussion  a  range  of  options  aimed  at  removing  this  obstacle  and  improving  the 
effectiveness of the legal framework for actions for antitrust damages across the EU 
Member States. 

The  Green  Paper  asked  for  views  on  whether  there  should  be  special  rules  on 
disclosure of evidence and, if so, what form such disclosure should take. The Green 
Paper  described  three  options  to  facilitate  the  disclosure  of  evidence:  disclosing 
identified individual documents, disclosing classes of documents, and drawing up a 
list  of  all  relevant  documents  and  making  all  documents  on  this  list  available.37 
Whilst  these  options  differ  as  to  the  scope  of  the  disclosure  requirement,  each  is 
subject to the condition that a party has reasonably described the known facts of the 
case  and  has  proffered  reasonably  available  evidence  in  support  of  its  allegations 
(“fact pleading”).38 

The  large  majority  of  respondents  agreed  that  access  to  evidence  is  crucial  for 
ensuring effective exercise of the right to seek compensation for antitrust damages. 
Some  respondents  argued  that  special  rules  concerning  access  to  evidence  in 
competition  law  litigation  were  not  warranted,  as  antitrust  cases  do  not  present 
evidentiary difficulties greater than other commercial litigation. 

70. 

Several  respondents  emphasised  that  any  rules  concerning  improved  access  to 
evidence  should  avoid  unwelcome  externalities,  such  as  “fishing  expeditions”,39 

36 

37 
38 
39 

In follow-on  actions,  claimants  may  −  as  regards  the proof of  an  infringement  −  be  able  to  rely  on a 
decision by a competition authority; cf. in more detail Chapter 4 below. 
See options 1, 2 and 3 of the Green Paper. 
See option 1 of the Green Paper. 
The term “fishing expedition” describes a strategy to elicit in an unfocused manner, through very broad 
discovery  requests,  information  from  another  party  in  the  hope  that  some  relevant  evidence  for  a 
damages claim might be found. 

EN 

23 

   EN 

 
                                                 
“discovery  blackmail”,40  procedural  abuses  and  excessive  costs  for  potential 
defendants. Some felt that such unwelcome externalities could be kept under control, 
provided  there  is  sufficient  judicial  control  over  the  scope,  the  manner  and  the 
relevance of disclosure. 

A number of respondents stressed that it would not be practical or proportionate to 
require that the party seeking disclosure must specify individual documents, as this 
party will often simply have no knowledge of the existence of particular documents, 
let  alone  be  able  to  specify  them  in  a  sufficiently  detailed  manner.  It  was  further 
pointed out that also courts would face practical  difficulties to “reasonably identify 
individual documents”. 

Several respondents argued that disclosure of classes of documents would strike the 
right balance: the “classes” of documents to be divulged would have to be defined by 
the  court  on  the  basis  of  the  “fact  pleading”  by  the  claimant.  This  would  limit 
“fishing expeditions” and would be less burdensome on the parties, whilst providing 
an effective solution to the information deficit on the part of the claimant. 

The Green Paper also put forward for discussion the option of introducing sanctions 
for  the  destruction  of  evidence  and  obligations  to  preserve  evidence.41  Several 
commentators on the Green Paper argued that both a failure to produce evidence or 
its  destruction  should  result  in  adverse  procedural  consequences  for  the  offending 
party  in  the  civil  damages  case  and/or  should  be  subject  to  penalties.  The  option,42 
however,  whereby  the  unjustified  refusal  of  a  party  to  turn  over  evidence  has  the 
consequence of modifying the burden of proof in favour of the other party was only 
supported by some. 

In  the  context  of  access  to  evidence  held  by  other  parties,  the  Green  Paper  finally 
presented  the  option  of  lowering  the  standard  of  proof  or  reversing  the  burden  of 
proof as a possible means to address the information asymmetry between the plaintiff 
and the defendant.43 In this context, it was pointed out by some that alleviations of 
proof should not apply to the finding of the antitrust infringement (which should be 
fully  proven  by  the  claimant),  but,  if  at  all,  only  to  the  issues  of  damages  and 
causation. Overall, however, there seems to be a preference for measures facilitating 
disclosure of evidence over alleviations of proof. 

ACQUIS COMMUNAUTAIRE 

In  order  to  enhance  the  effectiveness  of  actions  for  damages  based  on  EC 
competition rules, the Commission considers it indispensable to improve the position 
of victims as regards their access to the relevant evidence. 

The term “discovery blackmail” describes a strategy to request very broad discovery measures entailing 
high  costs  with  the  intention  to  compel  the  other  party  to  settle  rather  than  to  continue  the  litigation, 
although the claim or the defence may be rather weak or even unmeritorious. It is a strategy that can be 
employed by both claimants and defendants. 
Option 4 and 5 of the Green Paper. 
Option 10 of the Green Paper. 
Option 9 of the Green Paper. 

71. 

72. 

73. 

74. 

B. 

75. 

40 

41 
42 
43 

EN 

24 

   EN 

                                                 
1. 

76. 

77. 

78. 

79. 

80. 

81. 

The principles of equivalence and effectiveness 

The  Court  of  Justice  has  repeatedly  stated  that  in  the  absence  of  Community  rules 
governing the matter, it is for the domestic legal system of each Member State to lay 
down  the  detailed  rules  governing  the  exercise  of  rights  which  individuals  acquire 
directly under Community law. However, when laying down the applicable rules for 
the  enforcement  of  Community  rights,  Member  States  are  under  a  Community  law 
obligation  to  respect  both  the  principle  of  equivalence  and  the  principle  of 
effectiveness.44 

The  principle  of  equivalence  requires  that  the  rules  governing  the  enforcement  of 
Community  rights  are  not  less  favourable  than  those  governing  similar  domestic 
actions.  This  principle  constitutes  an  important  support  for  the  enforcement  of 
Community rights, in particular where the Member States have not provided for any 
specific rules for the enforcement of Community rights. It is, however, of little avail 
when  the  applicable  rules  for  the  enforcement  of  the  rights  under  national  law  are 
such that they hinder the effectiveness of antitrust damages actions. 

According  to  the  principle  of  effectiveness,  the  domestic  rules  governing  the 
enforcement  of  Community  rights  may  not  render  the  exercise  of  those  rights 
practically impossible or excessively difficult. 

The effects of the principle of effectiveness on domestic rules can be both negative 
and positive. The negative effect is that Member States’ authorities — and thus also 
national  judges  —  cannot  apply  domestic  rules  to  the  extent  that  they  are 
incompatible  with  the  principle  of  effectiveness.  The  positive  effect  means  that 
Member States are under an active Community law obligation to apply the rules in 
such a way that they make the exercise of Community rights practically possible and 
not  excessively  difficult.  This  Community  law  obligation  exists  independent  from 
whether or not there are domestic rules governing the matter. 

In  the  context  of  access  to  evidence  in  civil  proceedings  for  antitrust  damages,  it 
follows  from  the  principle  of  equivalence  that  Member  States  must  apply  to  EC 
antitrust damages actions all rules and mechanisms that are available to facilitate the 
bringing  of  evidence  in  domestic  antitrust  damages  actions  or  similar  cases.  This 
concerns, for instance, all national rules on allowing claimants to obtain knowledge 
of  information  and  to  access  means  of  evidence  that  are  in  the  possession  of  the 
defendant or of third persons. It also concerns any alleviations of the burden of proof 
or alleviations of the  standard  of proof that may be available under national law to 
compensate the consequences of information asymmetry. 

Rules of this type (i.e. rules on access to evidence in cases of information asymmetry 
and  rules  on  alleviating  the  burden  or  standard  of  proof)  are  likely  to  exist  in  all 
Member States. It is true that comprehensive sets of rules on disclosure of evidence 
in the possession of the opponent or third parties exist principally in Member States 
whose  system  of  civil  procedure  is  more  adversarial  in  nature  (particularly  in 
countries  of  the  common  law  tradition).  Nonetheless,  the  feedback  received  on  the 

44 

See  e.g.  Case  C-261/95  Palmisani  [1997]  ECR  I-4025  paragraph  27,  Case  C-453/99  Courage  and 
Crehan (footnote 8 above) paragraph 29, and Joined Cases C-295/04 to C-298/04 Manfredi (footnote 8 
above) paragraph 64. 

EN 

25 

   EN 

                                                 
82. 

83. 

Green Paper shows that also Member States of the civil law tradition (whose systems 
of  civil  procedure  are  more  “inquisitorial”  in  nature,  i.e.  where  evidence-taking  is 
conducted through and before the judge) contain various examples of facilitations of 
the bringing of evidence through forms of disclosure or the reversal of the burden of 
proof. As regards disclosure, many Member States of the civil law/continental legal 
tradition  provide  that  courts  can  order  opponents  or  third  parties  to  hand  over 
evidence in their possession, if the claimant specifies this evidence sufficiently and if 
it is relevant to the case. There are also examples whereby jurisdictions of the civil 
law tradition reduce, in cases of information asymmetry and under certain conditions, 
the  requirement  of  specification  of  means  of  evidence  and  allow  the  taking  of 
evidence in the sphere of the opponent (or third parties) on the basis of more general 
factual contentions. 

The principle of effectiveness requires Member States to apply their domestic law in 
such a manner that the exercise of Community rights is practically possible and not 
excessively  difficult.  From  this  follows,  first,  that  in  law  suits  on  EC  antitrust 
damages,  Member  States  must  make  full  use  of  any  rules  that  may  exist  under 
national law so that victims can exercise their right to compensation effectively. This 
concerns in the present context particularly rules and principles on the facilitation of 
bringing evidence, for example in situations of information asymmetry such as those 
mentioned above. The Court of Justice has explicitly held that “if the national court 
finds that the fact of requiring a [company] to prove that wholesale distributors are 
overcompensated […] is likely to make it impossible or excessively difficult for such 
evidence to be produced, since inter alia that evidence relates to data which such a 
[company] will not have, the national court is required to use all procedures available 
to it under national law, including that of ordering the necessary measures of inquiry, 
in  particular  the  production  by  one  of  the  parties  or  a  third  party  of  a  particular 
document.”45 

The principle of effectiveness secondly requires that any domestic rules making the 
exercise  of  this  right  practically  impossible  or  excessively  difficult  must  not  be 
applied. For example, to the extent that very strict specification requirements under 
national  rules  of  civil  procedure  render  the  exercise  of  the  right  to  compensation 
excessively difficult for victims of EC antitrust  infringements, national courts  must 
loosen these requirements in situations  where  the  victims have  no access  to crucial 
means of evidence which are located in the sphere of the opponent or third parties. 

Acquis communautaire: 

In  actions  for  EC  antitrust  damages,  Member  States  must  apply  all  domestic 
rules and principles on the facilitation of bringing evidence available in order 
to ensure that victims of EC antitrust infringements can exercise their right to 
compensation effectively. 

Member States must apply such rules and principles to the same extent as in 
similar cases based on the infringement of national law. 

Domestic rules that make the exercise of the right to compensation excessively 
difficult  must  not  be  applied  to  cases  of  damages  for  the  infringement  of  EC 

45 

Case C-526/04 Laboratoires Boiron [2006] ECR I-7529 paragraph 55. 

EN 

26 

   EN 

                                                 
antitrust rules. 

2. 

84. 

Community rules on disclosure of evidence in the IP Directive 2004/48/EC 

There already exists Community legislation, in a specific area of law, on obligations 
to  disclose  evidence  to  the  opponent  in  civil  litigation.  Directive  2004/48  on  the 
enforcement of intellectual property rights (IP Directive)46 provides in its Article 6, 
with regard to the disclosure of evidence: 

“Member  States  shall  ensure  that,  on  application  by  a  party  which  has  presented 
reasonably  available  evidence  sufficient  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. […].” 

“Under  the  same  conditions,  in  the  case  of  an  infringement  committed  on  a 
commercial scale Member States shall take such measures as are necessary to enable 
the  competent  judicial  authorities  to  order,  where  appropriate,  on  application  by  a 
party, the communication of banking, financial or commercial documents under the 
control of the opposing party, subject to the protection of confidential information.” 
(emphasis added) 

85. 

The  IP  Directive  also  addresses  the  issue  of  ensuring  the  preservation  of  evidence 
which  is  located  in  the  sphere  of  the  opposing  party.  Article  7(1)  provides  in  this 
respect that: 

“Member States shall ensure that, even before the commencement of proceedings on 
the  merits  of  the  case,  the  competent  judicial  authorities  may,  on  application  by  a 
party who has presented reasonably available evidence to support his/her claims that 
his/her intellectual property right has been infringed or is about to be infringed, order 
prompt and effective provisional measures to preserve relevant evidence in respect of 
the  alleged  infringement,  subject  to  the  protection  of  confidential  information.  […] 
Those  measures  shall  be  taken,  if  necessary  without  the  other  party  having  been 
heard,  in  particular  where  any  delay  is  likely  to  cause  irreparable  harm  to  the 
rightholder or where there is a demonstrable risk of evidence being destroyed. […].” 
(emphasis added). 

These  rules  provide  useful  points  of  reference  when  considering  ways  to  improve 
access to evidence in competition cases. They also illustrate that in certain areas of 
law the presence of specific problems, such as a very asymmetric distribution of the 
available  information  and  pronounced  difficulties  for  claimants  to  produce  the 
required evidence, can require solutions that differ to some extent from the general 
legal regime in civil litigation. 

Directive  2004/48/EC  of  the  European  Parliament  and  of  the  Council  of  29  April  2004  on  the 
enforcement of intellectual property rights, OJ 2004 L 195/16. The measures on evidence adopted in the 
Directives  are  derived  from  the  obligations  of  the  Community  and  the  Member  States  towards  the 
World  Trade  Organisation  under  Part  III  of  the  Agreement  on  Trade-Related  Aspects  of  Intellectual 
Property Rights of 15 April 1994. 

86. 

46 

EN 

27 

   EN 

                                                 
C. 

1. 

87. 

88. 

89. 

MEASURES TO ENSURE EFFECTIVE EC ANTITRUST DAMAGES ACTIONS 

The problem: need for better access to evidence in antitrust damages cases 

The feedback received on the Green Paper confirmed that national rules on evidence 
often  have  the  effect  of  making  it  very  difficult,  if  not  impossible,  for  claimants  to 
bring  a  successful  action  for  antitrust  damages.  This  appears  to  result  from  a 
combination  of  three  factors:  first,  competition  cases  are  particularly  fact-intensive 
due  to  the  economic  nature  of  antitrust  law.  The  second  factor  relates  to  the 
“information  asymmetry”  that  typically  exists  in  competition  cases,  namely  the 
situation  in  which  the  comprehensive  factual  information  and  the  corresponding 
means of evidence required to prove a case of antitrust damages are located within 
the sphere of the opponent or third persons. The third factor is the fact that in many 
Member States there are strict rules requiring claimants to assert in detail all the facts 
of their case and to proffer exactly specified pieces of evidence in support of these 
assertions;  the  limited  alleviations  of  these  requirements  currently  applied  are 
insufficient to ensure effective redress in situations of information asymmetry typical 
in competition cases. 

In relation to the first and second factor it is important to recall that cases on antitrust 
damages often require an unusually complex  assessment  of  economic  interrelations 
and effects. This analysis is not only a very extensive and often difficult exercise. It 
presupposes  the  knowledge  and  the  ability  to  prove  a  wide  range  of  underlying 
factual  elements,  which  are  often  not  known  to  the  claimant.  For  example,  to 
establish  an  infringement  of  the  competition  rules,  proof  is  often  required  of  the 
defendant’s  trading  practices,  commercial  strategy,  pricing  policy,  cost  structure  or 
his positioning on the market. In many competition cases it will be necessary to show 
negative  effects  on  prices,  output  or  innovation  on  the  relevant  market.  In  some 
cases,  notably  cartels  or  other  restrictions  of  competition  by  object,  such  negative 
effects can be presumed, but the establishment of the conduct will, in the absence of 
an infringement decision by a competition authority, be all the more arduous. In fact, 
the  undertakings  involved  in  the  gravest  antitrust  infringements  usually  employ 
efforts  and  sometimes  sophisticated  means  to  conceal  their  illegal  conduct.  This  is 
not only an issue in secret cartels, but it often also occurs in other cases of serious 
antitrust infringements, for instance in the context of Article 82 EC. 

Even  where  claimants  are  in  a  position  to  describe  and  prove  the  factual  elements 
necessary for finding an infringement,47 having to demonstrate in detail the causation 
and  quantification  of  their  damages  remains  a  particular  difficulty  in  competition 
cases.  To  establish  their  damage,  claimants  have  to  compare  the  anti-competitive 
situation to a situation which would have existed in the absence of the infringement, 
i.e.  a  hypothetical  competitive  market.  In  a  breach  of  contract  case,  a  claimant  can 
normally use market prices at the time of the breach of contract as the benchmark for 
calculating his loss. However, in a typical competition case, the claimant cannot rely 
on  the  prices  at  the  time  of  the  infringement  and  has  to  establish  what  the  price 
would have been in the absence of the restriction of competition. For this purpose, he 
will often depend on information that is in the sphere of the defendant and possibly 
their partners in the infringement: for example, notes on the price overcharges agreed 

47 

In follow-on actions, claimants may be able to rely on a decision by a competition authority finding the 
infringement; cf. in more detail Chapter 4 below. 

EN 

28 

   EN 

                                                 
secretly between cartel members, details on how and when they influenced price and 
other parameters of competition, or internal documents of the infringer showing his 
analysis  of  market  conditions  and  developments.  Also  the  reconstruction  of  a 
hypothetical  competitive  market  to  quantify  the  damage  caused  by  the  infringer 
usually presupposes knowledge of facts on the commercial activities of the infringer 
and other players on the relevant market. The same or similar types of difficulty arise 
in the context of causation, e.g. when claimants try to identify the precise elements of 
anti-competitive behaviour by an infringer that have caused the claimants damage, or 
the  extent  to  which  several  infringers  have  individually  contributed  to  the  damage 
caused. 

This  high  evidential  burden  on  victims  of  antitrust  infringements  and  the  structural 
asymmetry  in  the  distribution  of  the  information  required  by  claimants  render  the 
third  factor  mentioned  above  particularly  problematic.  Indeed,  the  absence  of  rules 
addressing  the  specific  information  asymmetry  of  competition  cases  often  leads  to 
great difficulties for victims to win their antitrust damages cases. As a result, many 
claimants  are  discouraged  from  even  trying  to  bring  a  meritorious  action.  A  more 
effective  framework  for  the  exercise  of  the  right  to  compensation  for  antitrust 
damage  therefore  hinges  on  improved  access  for  victims  to  evidence  in  the 
possession  or  under  the  control  of  the  opponent  or  third  persons.  Enhanced 
possibilities of inter partes disclosure are thus crucial. Even in follow-on actions, the 
existence  of  evidence  on  the  investigation  files  of  a  competition  authority  does  not 
constitute  an  equivalent  alternative  that  could  effectively  remedy  the  structural 
deficits in terms of access to evidence: first, much of the specific evidence required 
to  corroborate  claims  for  damages,  e.g.  as  regards  the  exact  quantification  of 
individual damage suffered and the causal link to certain victims, will not have been 
investigated by the authority and therefore often not exist on its file. Second, rules on 
public access to documents normally do not constitute an appropriate legal basis for 
obtaining access to evidence for the purposes of pursuing private damages actions.48 

Solutions  not  retained:  lowering  the  standard  of  proof  or  shifting  the  overall 
burden of proof 

The  option  of  lowering  the  standard  of  proof,  i.e.  to  let  less  evidence  and  a  lesser 
degree  of  likelihood  suffice  to  obtain  a  damages  award,  would  facilitate  antitrust 
actions  for  damages.  However,  the  described  difficulties  of  claimants  in  accessing 
evidence  are  of  such  magnitude  that  a  reduced  standard  of  proof  would  have  to  be 
inappropriately low to avoid them: without better access to information and evidence 
held by infringers, all that claimants can often show is a plausible suspicion that an 
antitrust infringement has caused them harm. Reducing the standard of proof to such 
a  low  level  would  entail  an  unacceptably  high  risk  of  incorrect  judgments  and  of 
procedural abuses by the claimant. 

90. 

2. 

91. 

92. 

The option of generally shifting the overall burden of proof does not constitute an as 
effective  general  remedy  to  the  consequences  of  the  structural  information 
asymmetry in competition cases as do measures to improve access to evidence.49 For 

48 
49 

See footnote 50 below. 
The fact that a reversal of the burden of proof does not appear to be an as effective general mechanism 
to  remedy  the  structural  deficits  in  terms  of  access  to  information  does  not  exclude  the  exceptional 

EN 

29 

   EN 

                                                 
instance, one could envisage a partial shift of the burden so that the claimant would 
“only”  have  to  show  that  there  was  an  infringement  of  competition  rules  that  may 
have caused damage to him whilst the defendant would have to demonstrate that his 
breach of the law did not cause a harm to the claimant. However, such shift would 
not  address  the  difficulties  victims  have  in  obtaining  information  or  evidence 
necessary to (even roughly) describe and prove the infringement. Even where victims 
can rely on the finding of an infringement in the decision of a competition authority, 
the  reversal  of  the  burden  is  of  no  real  help  with  respect  to  the  quantification  of 
damages,  because  without  access  to  the  relevant  information  on  how  e.g.  a  price-
fixing  agreement  was  implemented  in  the  specific  case  of  the  claimants,  they  and 
courts will often be unable to even roughly estimate a quantum of damage that then 
has to be rebutted by the defendant. Moreover, generally shifting the burden of proof 
would produce undesirable results because it would encourage unmeritorious claims 
as much as meritorious claims. This sets the wrong incentives and would entail the 
risks of incorrect judgments and procedural abuses referred to above. 

The  proposed  solution:  a  minimum  level  of  disclosure  based  on  fact  pleading, 
combined with judicial control of relevance and proportionality 

Whilst it is essential to improve in antitrust damages cases access to evidence held by 
the  opponent  or  third  persons,  the  negative  effects  of  certain  systems  of  disclosure 
must  be  avoided.  In  some  (non-European)  jurisdictions,  opponents  or  third  persons 
are  obliged  to  cooperate  in  potentially  very  wide-ranging,  time-consuming  and 
expensive  disclosure  procedures  on  the  basis  of  rather  low  thresholds.  In  such 
systems,  parties  can  be  required  to  spend  large  amounts  of  time  and  resources  on 
screening,  compiling  and  disclosing  the  requested  documents,  even  where  there  is 
only a low probability that the case is meritorious. This creates risks of abuses, e.g. 
through what is called “discovery blackmail” where the threat of potentially immense 
costs of disclosure procedures may be used to drive defendants to agree on an early 
settlement  even  where  the  claimant  has  a  rather  weak  or  even  fully  unmeritorious 
case.  The  same  can  occur  in  reverse,  namely  the  situation  where  defendants  with 
“deep pockets” use the threat of costly disclosure measures to cause the claimant to 
settle at a very low amount or even to abandon the case. 

The  Commission  therefore  proposes,  to  ensure  across  the  EU  a  minimum  level  of 
disclosure  inter  partes  in  antitrust  damages  cases  that  avoids  excesses  in  both 
directions,  i.e.  on  the  one  hand,  overly  broad  and  costly  disclosure  obligations  that 
are prone to abuses and, on the other hand, high obstacles to revealing the truth just 
because the relevant evidence happens to be under the control of the defendant or a 
third person. Claimants suing for antitrust damages should, plausibility of their claim 
provided,  have  the  realistic  possibility  to  obtain  evidence  that  is  indispensable  for 
proving the case. 

To  this  end,  the  Commission  suggests  to  build  on  the  approach  adopted  in  the  IP 
Directive  and  to  follow  the  legal  tradition  of  the  majority  of  Member  States.  The 
accordingly proposed minimum standard for disclosure in antitrust damages cases is 
described  in  more  detail  below.  It  relies  on  the  central  function  of  the  court  seised 
with  the  damages  claim.  Disclosure  measures  could  only  be  ordered  by  judges  and 

3. 

93. 

94. 

95. 

drawing  of  adverse  inferences  as  a  sanction  for  obstructive  behaviour  of  a  party  as  discussed  in 
paragraph 130 below. 

EN 

30 

   EN 

                                                                                                                                                         
96. 

97. 

4. 

98. 

99. 

a. 

100. 

would be subject to strict and active judicial control as to their necessity, scope and 
proportionality.  The  Commission  thus  clearly  does  not  propose  a  system  of  overly 
broad  pre-trial  disclosure,  which  may  not  fit  easily  with  the  legal  tradition  and 
principles of civil procedure of Member States and which may conflict with public 
policy principles of some Member States. 

Member  States  which  currently  apply  very  strict  requirements  in  terms  of 
specification  of  facts  and  means  of  evidence  would  have  to  allow  for  an  initial 
alleviation  of  these  strict  requirements  in  antitrust  damages  cases.  The  general 
standard of proof for ultimately winning a case would, however, remain unaffected. 
Moreover,  any  disclosure  order  would  presuppose  that  the  claimant  has  presented 
reasonably  available  facts  and  evidence  that  are  sufficient  to  make  his  claim  a 
plausible one. The Commission considers that such a fact-pleading requirement can 
have useful functions in safeguarding against unmeritorious claims and in structuring 
and streamlining civil procedures. 

For  reasons  of  equality  of  arms,  this  minimum  level  of  disclosure  in  antitrust 
damages cases should be available not only to support claims of claimants but also 
defences  by  defendants  (where  in  the  following  sections  reference  is  made  to  “the 
claimant”, the same shall apply mutatis mutandis to defendants). 

Conditions for obtaining a disclosure order by the court and its scope 

The civil procedure systems of Member States should allow, as a minimum level of 
disclosure  in  antitrust  damages  cases,  targeted  disclosure  measures  under  the 
condition that (a) the claimant has asserted all the facts and offered all those means 
of evidence that are reasonably available to him, provided that these are sufficient to 
make his claim a plausible one; (b) he has shown to the satisfaction of the court that 
he  is  unable,  applying  all  efforts  that  can  reasonably  be  expected,  to  assert  the 
specific facts or to produce the means of evidence for which disclosure is envisaged; 
(c)  he  has  specified  sufficiently  precise  categories  of  information  or  means  of 
evidence to be disclosed, and (d) the court is satisfied that the envisaged disclosure 
measure is relevant to the case as well as necessary and proportional in scope. 

Disclosure  would  be  ordered  upon  application  by  a  party,  or  upon  the  court’s  own 
motion where necessary, and would be tailored by the court to fit the facts pleaded 
by the parties and the particular circumstances of the case. 

Fact pleading: presentation of reasonably available facts and evidence sufficient 
to make out a plausible claim 

The first condition for any disclosure measure under the system of access to evidence 
proposed in the White Paper would be reasonable fact pleading by the claimant to the 
extent possible in the individual case. The facts presented must be sufficient to make 
out  a  plausible  claim.  As  regards  more  specifically  the  last  aspect,  a  claimant  for 
antitrust damages would have to assert, as a condition for any disclosure, sufficient 
facts to show that there are plausible grounds to suspect that he suffered some harm 
through the infringement of competition rules by the defendant. 

101. 

The purpose of requiring from the claimant a minimum level of fact pleading, and be 
it  through  rather  general  factual  allegations  (and  where  required  reference  to  less 
precisely  identified  evidence),  is  to  provide  the  court  with  a  basis  (i)  to  filter  out 

EN 

31 

   EN 

manifestly  unmeritorious  cases,  (ii)  to  assess  the  adequacy,  the  relevance  and 
proportionality  of  the  requested  disclosure  measure  and  (iii)  to  tailor  the  ultimate 
disclosure order. 

102.  What  constitutes  sufficient  fact  pleading  that  can  reasonably  be  expected  from  the 
claimant would depend on the circumstances of each case, especially the amount of 
essential information and evidence that is inaccessible to the claimant. Courts should 
always  bear  in  mind  the  difficulties  of  the  claimant  to  assert,  in  the  initial  fact 
pleading,  detailed  facts  to  support  his  case.  It  is  indeed  inherent  to  the  information 
asymmetry in antitrust cases that the claimant cannot be expected to demonstrate any 
elevated degree of probability that his claim is founded. All that many claimants are 
able  to  produce  is  information  and  evidence  providing  plausible  grounds  for 
suspecting that an antitrust infringement by the defendant caused them some damage. 
For  example,  a  claimant  may  produce  an  infringement  decision  showing  that  the 
defendant participated in a cartel for product X covering territory Y and for period Z. 
He  may  also  be  able  to  produce  purchase  receipts  for  the  same  product  from  the 
defendant on the same territory and covering the period of the cartel. This makes his 
claim  a  plausible  one  and  should  be  sufficient  to  allow  the  claimant  to  access  the 
evidence necessary to meet the applicable standard of  proof  required for ultimately 
winning  the  case.  For  instance,  the  claimant  may  need  access  to  documents  in  the 
possession of the defendant to assist in the calculation of the overcharge arising from 
the  secret  cartel.  This  information  can  be  an  important  element  for  the  claimant  to 
establish his loss. 

b. 

103. 

104. 

50 

Inability of claimant to otherwise access relevant evidence 

An  alleviation,  in  some  Member  States,  of  the  general  procedural  rules  on 
specification of facts and evidence will only be justified if there is a real risk that a 
victim  of  an  antitrust  infringement  would  lose  his  action  for  damages  just  because 
certain  relevant  pieces  of  information  and  evidence  are  under  the  control  of  the 
defendant or third persons and inaccessible to the claimant. A disclosure order should 
therefore  only  be  granted  where  the  claimant  shows  that  he  is,  despite  applying  all 
efforts  that  can  reasonably  be  expected,  unable  to  assert  the  specific  facts  or  to 
produce the relevant means of evidence in another manner than through a disclosure 
order. 

In  this  context,  it  is  important  to  emphasise  that  in  the  Commission’s  view 
Article 255 EC and Regulation 1049/2001 setting out the principles, conditions and 
limits of public access to documents held by Community institutions normally do not 
constitute an appropriate legal basis for obtaining access to evidence for the purposes 
of pursuing private damages actions.50 The fact that certain information or pieces of 

Persons  requesting  access  to  documents  under  Regulation  (EC)  No  1049/2001  of  the  European 
Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council 
and  Commission  documents  (OJ  2001  L  145/43)  do  not  have  to  give  reasons  for  their  request.  If  a 
document  is  accessible  under  that  Regulation,  anyone  can  have  access.  The  consequence  is  that 
disclosure  to  one  person  has  the  effect  that  the  document  enters  into  the  public  domain,  as  it  is 
accessible  to  anyone  else.  By  their  nature,  documents  submitted  to  the  Commission  in  the  context  of 
antitrust proceedings are likely to contain commercially sensitive information, the public disclosure of 
which would harm the legitimate interests of the undertakings concerned. In addition, public interests, 
for  example  the  protection  of  the  purpose  of  inspections  and  investigations  within  the  meaning  of 
Article 4 of Regulation 1049/2001, may also require protection of such information. Therefore, litigants 

EN 

32 

   EN 

                                                 
c. 

105. 

106. 

d. 

107. 

108. 

evidence may exist in the file of the Commission should therefore not be a relevant 
consideration  for  the  purposes  of  assessing,  in  the  context  of  a  request  for  an inter 
partes  disclosure  order,  the  claimant’s  ability  to  access  information  or  evidence.  In 
any  event,  much  of  the  facts  and  evidence  needed  to  corroborate  a  civil  damages 
claim will not have been investigated by the public authority.51 

Specification of categories of evidence to be disclosed 

The scope of disclosure orders should be limited to what is genuinely relevant to the 
case and proportionate with a view, on the one hand, to the burden of the disclosure 
and, on the other, the nature and value of the claim and the seriousness of the alleged 
infringement.  In  order  to  allow  the  court  to  tailor  the  disclosure  order  with  these 
objectives  in  mind,  and  to  render  the  disclosure  order  as  focused  as  reasonably 
possible whilst ensuring the effectiveness of antitrust damages actions, the claimant 
would  have  to  specify  sufficiently  precise  categories  of  information,  documents  or 
other means of evidence relevant to the claim. These categories should be specified 
as precisely and narrowly as possible, but as comprehensively as necessary so as not 
to  endanger  the  effectiveness  of  the  legal  framework  for  antitrust  damages  actions. 
The court would need to have a margin of appreciation in this respect given that the 
appropriate measures would depend on the circumstances of the individual case. 

In  the  above  example  of  a  cartel  relating  to  product  X  covering  territory  Y  during 
period  Z,  the  claimant  in  the  system  proposed  above  may  well  seek  disclosure  of 
documents about the price discussions between the cartelists for the clearly described 
product,  period  and  territory  to  the  extent  that  they  may  concern  him.  Disclosure 
could  also  be  requested,  for  the  specified  product,  period  and  territory,  of  facts  to 
enable the claimant to determine what the pricing structure on the market would have 
been in the absence of the cartel. In this context, details of prices prior to the cartel 
prices  on  a  comparable  market  where  there  was  no  cartel,  or  details  of  price 
discussions during the life of the cartel may be relevant. 

Judicial  control  of  relevance,  necessity  and  proportionality  of  disclosure 
measure 

It is a central feature of such a system for access to evidence that any disclosure takes 
place under the strict and active control of the court seised with the claim for antitrust 
damages. The court would, in particular, be called upon to verify ex officio that the 
envisaged  disclosure  measure  is  relevant  to  the  case  as  well  as  necessary  and 
proportional in scope. The outcome of this assessment, for which courts should enjoy 
a margin of appreciation, will very much depend on the specific circumstances of the 
case at hand. 

The  envisaged  disclosure  measure  would  have  to  be,  in  the  first  place,  relevant  for 
the case brought by the claimant. This means that the court would therefore have to 
assess whether the information or evidence to be disclosed is suitable to support the 
allegations  in  the  initial  fact  pleading  by  the  claimant.  In  the  second  place,  the 
disclosure measure would have to be necessary, i.e. there would have to be no other 
equally suitable but less onerous measure available. For being “equally suitable”, the 

in  civil  proceedings  for  damages  should  not  rely  on  that  Regulation  to  obtain  access  to  evidence  for 
their damages claim. 
See paragraph 90 above. 

51 

EN 

33 

   EN 

                                                                                                                                                         
109. 

other measure that is the reference point would have to be certain to produce in all 
likelihood equivalent results to render the action for antitrust damages effective.52 

In the third place, the court would, when defining the disclosure obligation, have to 
take into consideration the burden of disclosure and maintain the proportionality of 
the disclosure ordered to the nature and value of the claim and the seriousness of the 
underlying  infringement.  The  disclosure  measure  must  not  imply  disadvantages  to 
the legitimate interests of the other party that are manifestly out of proportion to the 
objective  pursued.  The  specific  issue  of  confidential  information  is  addressed 
separately  in  paragraphs  112  to  117  below.  In  the  proportionality  assessment  that 
implies a balancing of legitimate interests, account should be taken of the likelihood 
(and  possibly  certainty)  that  the  addressee  of  the  disclosure  order  is  the  one  who 
infringed  competition  law  and  thereby  gave  rise  to  the  damages  action  in  the  first 
place.  In  this  context,  courts  would  also  have  to  pay  particular  attention  to  the 
legitimate interests of third persons and the burden a disclosure order may impose on 
them. 

As a minimum standard of disclosure in actions for antitrust damages, national 
courts should under specific conditions have the power to order disclosure inter 
partes of precise categories of information or evidence relevant to the claim. 

Conditions  for  a  disclosure  order  in  actions  for  antitrust  damages  should 
include  that  (a)  the  claimant  has  asserted  all  the  facts  and  offered  all  those 
means  of  evidence  that  are  reasonably  known  and  available  to  him,  provided 
that they show plausible grounds to suspect that he suffered harm through the 
infringement  of  competition  rules  by  the  defendant;  (b)  he  has  shown  to  the 
satisfaction  of  the  court  that  he  is  unable,  applying  all  efforts  that  can 
reasonably be expected, to assert the specific facts or to produce the evidence 
for  which  disclosure  is  envisaged;  (c)  he  has  specified  sufficiently  precise 
categories  of  information  or  evidence  to  be  disclosed,  and  (d)  the  court  is 
satisfied that the envisaged disclosure measure is relevant to the case as well as 
necessary and proportional in scope. 

5. 

a. 

110. 

Further issues related to the scope of the disclosure order 

All types of evidence 

The  objective  of  disclosure  orders  is  to  assist  the  parties  in  revealing  the  truth  and 
obtaining  the  evidence  necessary  to  underpin  the  allegations  supporting  their  case 
(either  as  claimant  or  as  defendant).  Disclosure  orders  should  therefore  cover  all 
types  of  evidence  that  are  admissible  in  the  Member  State  concerned  where  these 
means of evidence are under the control of the opponent or third persons.53 

111. 

This  would  mean  that  a  court  may  order  parties  or  third  persons  to  produce  any 
information, irrespective of the medium on which it is stored. Besides that, the court 
could also order parties  or third  persons to give  oral testimony, in accordance with 

52 

53 

It  is  recalled  that  Article  255  EC  and  Regulation  1049/2001  on  public  access  to  documents  held  by 
Community  institutions,  in  the  Commission’s  view,  normally  do  not  constitute  an  appropriate  legal 
basis  for  obtaining  access  to  evidence  for  the  purposes  of  pursuing  private  damages  actions,  see 
paragraph 104 above. 
For the group “third persons” from whom disclosure may be sought, see paragraph 121 below. 

EN 

34 

   EN 

                                                 
b. 

112. 

113. 

114. 

115. 

the applicable national rules. The latter should determine whether it is the court that 
is  hearing  the  parties  and  interrogating  third  persons  or  whether  the  parties 
themselves  are  allowed  to  examine  and  to  cross-examine.  Member  States  whose 
procedural systems are based on the centrality of the judge would therefore remain 
free to prevent any hearing of witnesses outside the courtroom. 

The disclosure and protection of confidential information 

In actions for antitrust damages, the information and evidence relevant to prove the 
case  is  likely  to  be  in  large  part  commercially  sensitive.  Confidential  information 
may be relevant for determining whether there has been an infringement (e.g. data on 
the  market  position  of  the  defendant  and  his  cost  structure)  or  for  determining  the 
quantum  of  the  harm  caused  (e.g.  pricing  data  of  the  defendant  or  third  parties  or 
pricing strategies). 

It  is  a  general  rule  of  Community  law  that  confidential  information,  in  particular 
business secrets, should in principle be protected.  Community  law nonetheless also 
recognises  that  there  may  be  specific  circumstances  in  which  confidential 
information  may  be  made  public.  For  instance,  the  obligation  of  the  Commission 
under  Regulation  1//2003  to  protect  the  confidentiality  of  information  acquired 
through  such  intrusive  coercive  measures  as  unannounced  on-site  inspections  is 
subject to the exception that the Commission may rely on and disclose confidential 
information to the extent that this is necessary to prove an infringement of Articles 
81 or 82 of the Treaty.54 

The  likelihood  that  confidential  information  plays  a  central  role  in  proceedings  for 
damages  makes  it  indispensable  that  the  protection  granted  to  confidential 
information is not disproportionate and does not de facto preclude the exercise of the 
right to compensation. If addressees of a disclosure order were to be able to invoke a 
general  confidentiality  defence  to  block  disclosure  of  any  commercially  sensitive 
information, the access to evidence that is essential for establishing the truth would 
often  become  practically  impossible.  A  protection  against  disclosure  without 
exception  would  almost  inevitably  lead  to  the  loss  of  the  damages  action  by  the 
claimant. 

In a different context, namely that of the IP Directive, the Court recently confirmed 
in  its  Promusicae  judgment55  that  the  right  to  judicial  protection  of  victims  of 
infringements  of  EC  law  and  the  right  to  privacy  of  the  infringer  are  both 
fundamental rights under Community law that must be balanced carefully by national 
courts and other authorities. This balance becomes particularly delicate when, as in 
that case, the right to privacy refers to the personal data of natural persons. 

54 

55 

See  Article  27(2)  of  Regulation  1/2003  and  Article  15(3)  of  Regulation  773/2004  of  7  April  2004 
relating  to  the  conduct  of  proceedings  by  the  Commission  pursuant  to  Articles  81  and  82  of  the  EC 
Treaty  (OJ  2004  L  123/18)  and  recital  14  of  that  Regulation:  “Where  business  secrets  or  other 
confidential information are necessary to prove an infringement, the Commission should assess for each 
individual  document  whether  the  need  to  disclose  is  greater  than  the  harm  which  might  result  from 
disclosure”. 
Case C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU (not yet 
reported). 

EN 

35 

   EN 

                                                 
116.  When Member States apply the rules and principles existing in their national laws on 
civil  procedure  to  protect  business  secrets  and  other  confidential  information,  they 
should  therefore  ensure  that the  exercise  of  victims’  right  to  compensation  remains 
effective in practice, and that the two conflicting groups of interests are balanced in 
an  assessment  of  proportionality.  This  should  be  part  of  the  proportionality  test 
mentioned  above  (paragraphs100  to  109).  Relevant  considerations  include,  on  the 
one hand, the nature and value of the claim for damages and the degree of relevance 
the contentious piece of information or evidence has for the claimant to substantiate 
his case for damages. Account should also be taken of how likely it is that the owner 
of the confidential information infringed competition law, i.e. that it was his breach 
of  law  that  put  the  claimant  in  the  situation  of  having  to  claim  damages  in  court 
which necessitate access to evidence under the control of the defendant. On the other 
hand, the proportionality assessment should consider the nature and the value of the 
interests at stake for the owner of the information. The harmful consequences to be 
considered are likely to differ significantly between a disclosure to the public at large 
and a disclosure to the claimant only. For an exclusion or limitation of disclosure to 
be  justified,  the  interests  in  the  protection  of  confidentiality  would  have  to  clearly 
outweigh  the  interests  of  the  claimant,  which  normally  coincide  with  the  public 
interest,  in  an  effective  compensation  of  damage  caused  through  antitrust 
infringements. 

117. 

In the appreciation of the conflicting interests and the proportionality of disclosure, 
possibilities to reduce the scope of disclosure or to limit its impact are likely to be of 
paramount importance. Various possible solutions, which achieve both objectives of 
protecting  confidential  information  and  of  making  this  information  useable  in  the 
proceedings for damages, are conceivable and are already applied in Member States. 
For instance, it may be sufficient to protect information from the wider public whilst 
it  is  not  harmful  for  the  claimant  to  take  note  of  it,  because  the  information  is  not 
confidential  vis-à-vis  him.  This  could  be  achieved  by  a  court  order  that  court 
hearings are to be in private, that the parties are obliged not to use the information for 
other purposes than the ongoing court proceedings and that any public access to the 
file  is  limited.  There  would  have,  in  all  cases,  to  be  an  obligation  that  any 
confidential  information  or  evidence  disclosed  must  not  be  used  for  any  other 
purposes  than  the  ongoing  proceedings  for  damages.  Member  States  may  also 
consider  limiting  direct  disclosure  to  the  parties’  lawyers  or  to  exclude  direct 
disclosure to the parties and make the information directly available only to experts 
(e.g. certified accountants) who would produce a summary of the information in an 
aggregated or otherwise non-confidential form. The rules of civil procedure for some 
Member States already provide for such solutions. 

c. 

118. 

The disclosure of corporate statements submitted to a competition authority as 
part of an application for immunity or reduction of fines 

In  order  to  avoid  an  applicant  for  immunity  or  for  a  reduction  of  fines  (“leniency 
applicant”) being placed in a less favourable situation than the other infringers only 
due to the fact that he applied for leniency, leniency applicants should be protected 
against court orders requesting disclosure or reproduction of certain documents and 
information  they  have  submitted  to  the  competition  authorities.  This  protection 
would  cover  the  voluntary  presentations,  by  or  on  behalf  of  an  undertaking  to  the 
competition authority, of the undertaking’s knowledge of a cartel and its role therein, 
drawn  up  especially  for  submission  under  the  Leniency  Notice  (hereinafter 

EN 

36 

   EN 

“corporate statements”), and should be applicable both before and after a decision is 
taken by the authority. 

d. 

Investigative privilege of competition authorities 

119.  With  respect  to  evidence  other  than  corporate  statements,  it  may  in  specific 
circumstances be that its disclosure would unduly interfere with an ongoing antitrust 
investigation by a competition authority. This may occur, for example, if during the 
investigative phase an applicant for leniency would be ordered to disclose documents 
submitted in addition to the corporate statement to the competition authority, and if 
these documents were to become known to other members of the cartel in the course 
of an action for damages or a request for a settlement. Consideration should therefore 
be  given  to  a  possible  rule  that  courts  should  temporarily  refrain  from  adopting  a 
disclosure  order  if  the  Commission  or  an  NCA  shows  to  the  court  that  an  order 
obliging the disclosure of certain pieces or categories of evidence during a specified 
period of time would jeopardise an ongoing antitrust investigation. 

e. 

120. 

No possibility to object to disclosure of unfavourable evidence 

The mere fact that the disclosure of evidence may entail unfavourable consequences 
for the addressee of the disclosure order in the civil proceedings, cannot constitute a 
reason to object to the disclosure order. On the contrary, it is inherent to the need to 
overcome  the  information  asymmetry  in  antitrust  damages  cases  that  defendants 
would have to reveal all relevant evidence, within the specified categories, ordered 
by a court, including facts that are unfavourable to their own case. Concepts that may 
exist in certain national laws such as the old maxim nemo tenetur edere contra se56 
therefore  could  not  be  invoked  against  the  disclosure  mechanisms  for  antitrust 
damages cases. To the extent that such maxims are intended to prevent overly broad 
and unfocused disclosure requests (“fishing expeditions”57), the requirements of fact-
pleading,  the  need  to  specify  sufficiently  precise  categories  of  evidence  and  the 
judicial  control  of  relevancy  and  proportionality  of  the  disclosure  measure  (see 
paragraphs 107 to 109 above) constitute adequate safeguards in this respect. 

Disclosure  orders  can  cover  all  types  of  evidence  under  the  control  of  the 
opponent or third persons. Adequate protection should be given to confidential 
information  as  well  as  to  corporate  statements  of  leniency  applicants  and  the 
investigations of competition authorities. 

6. 

121. 

Potential addressees of disclosure orders and their right to be heard 

Disclosure  orders  will  normally  be  directed  against  the  opponent  in  the  action  for 
damages. They presuppose, as set out above, that the claimant has shown plausible 
grounds  for  his  claim.  In  the  great  majority  of  cases,  the  information  in  the 
possession of the defendant and the claimant will be sufficient to show whether the 
former inflicted damage on the latter through the infringement of antitrust rules. 

122. 

Exceptionally, however, it may be indispensable for a victim to seek disclosure from 
a third party, i.e. someone otherwise not involved in the law suit for damages. This 

56 

57 

Or nemo tenetur edere instrumenta contra se, which may be translated as “nobody is bound to produce 
documents against himself”. 
Cf. footnote 39 above. 

EN 

37 

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third party may be a co-infringer who committed a breach of antitrust rules together 
with the defendant and who may control certain relevant pieces of evidence thereof. 
It  may  also  be  that  the  third  party  did  not  participate  in  the  infringement,  but  was 
involved  in  transactions  related  to  the  infringement.  For  instance,  in  the  context  of 
the passing-on defence, an undertaking (the infringer) may wish to seek information 
from its direct customers (or their customers) to demonstrate that an overcharge was 
not passed on to the indirect purchaser who is suing for damages. 

123. 

Judges will, when assessing the proportionality of a disclosure measure and thereby 
balancing  the  legitimate  interests  at  stake,  take  into  account  the  likelihood  (and 
possibly certainty) that the addressee of the disclosure order is the one who infringed 
competition law and thereby gave rise to the damages action. The legitimate interests 
of  third  parties  will,  conversely,  carry  a  particular  weight  in  the  proportionality 
assessment  if  they  clearly  had  no  involvement  in  the  antitrust  infringement.  This 
means  that  a  disclosure  measure  may  be  proportionate  vis-à-vis  someone  whose 
breach  of  the  antitrust  law  is  established,  whilst  the  same  measure  would  be 
disproportionate  (and  therefore  refused  by  the  judge)  vis-à-vis  someone  not  at  all 
involved in the infringement. 

124. 

Third  parties  would  therefore  benefit  from  a  double  protection  against  excessive 
requests for disclosure in law suits between other parties: first, judges would not turn 
to a third party where the required information is available from one of the parties of 
the law suit. Second, the proportionality threshold is higher for third parties than for 
undertakings involved in the infringement. 

125.  Moreover,  third  parties  would  be  entitled  to  be  reimbursed  for  any  costs  they 
reasonably incur through compliance with a disclosure order. This reimbursement of 
third-party costs would be made by the party to the law suit who is ordered to bear 
the costs of the proceedings according to applicable national rules. This is usually the 
losing party. 

126. 

127. 

7. 

128. 

Prior  to  the  adoption  of  a  disclosure  order,  provided  that  there  is  no  particular 
urgency,  the  addressee  of  such  order  should  have  a  right  to  be  heard  in  order  to 
present his views on the matter. This right should exist for all potential addressees, 
i.e. the opposing party in the action for antitrust damages as well as any third persons 
from whom disclosure may be sought. 

Usually, there are specific rules that apply to the access to information held by public 
authorities.  The  group  of  “third  persons”  from  whom  disclosure  may  be  sought 
would therefore normally not comprise public authorities to the extent that the matter 
concerns  an  activity  within  the  exercise  of  their  public  function.  The  specific  rules 
should normally prevail over the general rules on inter partes disclosure of evidence 
described above. 

Except  for  cases  of  particular  urgency,  the  addressees  of  a  disclosure  order 
would have the right to be heard. 

Refusal to turn over evidence and destruction of evidence 

The lodging of an action, or the beginning of an investigation by antitrust authorities, 
entails  a  serious  risk  that  the  defendant  will  destroy  or  hide  incriminating  material 

EN 

38 

   EN 

a. 

129. 

130. 

131. 

132. 

crucial for victims’ to corroborate claims for damages. In order to guarantee the full 
effectiveness  of  the  aforementioned  disclosure  mechanism,  sufficiently  deterrent 
sanctions must be considered to prevent any destruction of relevant evidence or the 
refusal  to  produce  evidence  pursuant  to  a  court  order.  Furthermore,  consideration 
should  be  given  to  the  possibility  that  courts  order,  where  appropriate,  provisional 
safeguarding measures to preserve relevant evidence. 

Sanctions for refusal to produce evidence and for destruction of evidence 

The refusal to turn over evidence pursuant to a court disclosure order, as well as the 
destruction  of  evidence,  could  be  sanctioned  by  different  types  of  measures  which 
are  not  necessarily  mutually  exclusive,  such  as  direct  financial  and/or  personal 
sanctions  or  the  drawing  of  adverse  inferences  by  the  judge  within  the  civil 
proceedings. 

As  regards  parties  to  an  action  for  damages,  Member  States  are  encouraged  to 
provide courts hearing the action for damages  with  the  discretion  to  choose  from  a 
sufficient range of possible measures the most effective and appropriate sanction in 
the  specific  situation.  Whilst  courts  may  find  the  imposition  of  financial  (e.g.  fines 
and/or periodic penalty payments) or personal sanctions available under national law 
to be the most effective sanction in certain cases, they may in other cases not always 
achieve the intended result without undesirable delays. It appears therefore advisable 
that  national  courts  should  in  all  cases  have  the  option  to  draw  adverse  inferences 
from  a  refusal  to  produce  evidence  or  a  destruction  of  evidence  by  a  party  to  the 
action. For instance, the national court may consider a particular fact alleged by the 
claimant  as  established  and  strike  out  the  defendant’s  counter  arguments  in  this 
respect.58 

As regards refusals or the destruction of evidence by a person or an entity that is not 
a  party  to  the  action  for  damages,  national  law  should  equally  ensure  that  the 
available sanctions are sufficiently severe to have a deterrent effect. Courts hearing a 
particular action for damages should be entitled, through appropriate direct sanctions, 
to coerce disclosure of the evidence relevant to the case by a third party. 

Individuals  and  undertakings  should  face  effective  sanctions  for  the  destruction  of 
evidence  as  of  the  moment  that  they  knew,  or  should  reasonably  have  known,  that 
the  evidence  is  of  relevance  for  corroborating  an  actual  or  reasonably  foreseeable 
antitrust damages claim. 

Where  a  party  refuses  to  disclose  evidence  pursuant  to  a  court  order  or 
destroys  evidence,  any  court  hearing  a  claim  for  damages  should  have  the 
power to impose effective, i.e. sufficiently deterrent sanctions on the individual 
or the undertaking concerned. Courts should be provided with a range of such 
sanctions to choose from, which should include the possibility to draw adverse 
inferences from the refusal or destruction in the civil action for damages. 

58 

Whereas an automatic shift of the entire burden of proof does not appear to be an appropriate general 
mechanism in antitrust damages cases to address the existing information asymmetry (see paragraph 92 
above), the threat of adverse inferences in the event of the refusal to produce or destruction of evidence 
may well constitute an effective and efficient incentive for parties to cooperate. 

EN 

39 

   EN 

                                                 
b. 

133. 

Protective measures to preserve relevant evidence 

In  addition  to  the  deterrent  effect  emanating  from  the  sanctions  discussed  above, 
Member  States  may  wish  to  entitle  courts  to  order,  where  appropriate,  prompt 
provisional measures to actively preserve relevant evidence prior to the introduction 
of  a  damages  claim.  Article  7  of  IP  Directive  2004/48  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.  The  Commission  suggests  that  equivalent  possibilities  be 
considered with respect to antitrust damages claims. Member States are likely to be 
best placed to determine, in accordance with their legal traditions whilst ensuring full 
effectiveness of the measures, whether they provide for the execution of the court’s 
safeguarding order by a public authority (e.g. a court official or huissier de justice) 
who  would  seize  the  evidence  concerned,  or  whether  a  private  party  should  be 
entitled to enter the premises of the opposing party to secure the evidence. 

EN 

40 

   EN 

A. 

134. 

135. 

136. 

137. 

CHAPTER 4 — BINDING EFFECT OF DECISIONS ADOPTED BY  

COMPETITION AUTHORITIES 

THE  OPTIONS  IN  THE  GREEN  PAPER  AND  THE  RESULTS  OF  THE  PUBLIC 
CONSULTATION 

The  same  antitrust  infringement  can  be  the  subject,  on  the  one  hand,  of 
administrative proceedings by a public authority that find a breach of antitrust rules, 
and, on the other hand, of civil proceedings before national courts where victims of 
the  infringement  sue  the  infringers  for  damages.  Such  subsequent  actions  for 
damages are usually referred to as “follow-on actions”. 

It  follows  from  Article  16(1)  of  Regulation  1/2003  that  a  Commission  decision 
finding an infringement under Articles 81 or 82 EC constitutes a binding act to which 
decisions by national courts must not run counter, unless the decision is annulled by 
the  European  Court  of  Justice.59  This  means  that  victims  of  antitrust  infringements 
can rely on the Commission decision in a subsequent action for damages against the 
addressees of the decision before national courts. 

The  Green  Paper  put  forward  for  discussion  a  similar  rule  for  decisions  of  NCAs 
finding  an  infringement  of  Articles  81  or  82  EC.60 Comments were  also invited  on 
the alternative option of shifting the burden of proof: under this option, the decision 
of  the  NCA  would  create  a  presumption  that  an  infringement  existed,  unless  the 
defendant can show that he did not infringe Article 81 or 82 EC. 

The results of the public consultation on the Green Paper were diverse. They showed, 
however,  widespread  support  in  favour  of  the  option  to  endow  NCA  decisions  on 
finding an infringement of Articles 81 or 82 EC with a legally binding effect in civil 
proceedings for damages. These commentators emphasised that the lack of any such 
effect  of  infringement  decisions  by  NCAs  contributed  to  the  uncertainty  of  the 
outcome of a claim for antitrust damages. They argued, in particular, that a binding 
effect would significantly simplify and shorten court proceedings for damages, help 
reduce  costs  and  thereby  constitute  an  important  facilitation  of  antitrust  damages 
actions. It was further emphasised that such a rule would also contribute to consistent 
application of Articles 81 or 82 EC across the EU. Many respondents of this group 
proposed to limit the binding effect of NCA decisions to situations where all appeal 
avenues  against  the  decision  have  been  exhausted.  Some  respondents  to  the  Green 
Paper argued that civil courts should only be bound by decisions of the NCA of the 

59 
60 

See in more detail paragraph 139 below. 
See  option  8  of  the  Green  Paper.  “Decisions  by  NCAs”  means,  in  the  present  context,  decisions 
pursuant  to  Article  5  of  Regulation  1/2003  adopted  by  the  authorities  designated  by  Member  States 
within the meaning of Article 35 of that Regulation. As explained in paragraph 2 of the Commission’s 
Notice on cooperation within the Network of Competition Authorities OJ 2004C 101/43: “The structure 
of the NCAs varies between Member States. In some Member States, one body investigates cases and 
takes all types of decisions. In other Member States, the functions are divided between two bodies, one 
which is in charge of the investigation of the case and another, often a college, which is responsible for 
deciding the case. Finally, in certain Member States, prohibition decisions and/or decisions imposing a 
fine can only be taken by a court: another competition authority acts as a prosecutor bringing the case 
before that court.” 

EN 

41 

   EN 

                                                 
138. 

B. 

1. 

139. 

140. 

141. 

same  Member  State,  whilst  several  others  saw  no  compelling  reasons  for  such 
distinction between the domestic NCA and NCAs in other Member States. 

At the other end of the spectrum, a significant number of comments received during 
the public consultation rejected the idea that NCA  infringement decisions based on 
Article  81  or  82  EC  should  have  any  legal  effect  in  subsequent  antitrust  damages 
cases. Concerns were, in particular, raised as to a potential conflict with the principle 
of an independent judiciary and a danger that a binding effect would incite frivolous 
claims.  In  view  of  such  concerns,  several  respondents  favoured  a  rule  that  would 
facilitate  actions  for  antitrust  damages  by  stipulating  a  rebuttable  presumption  that 
the finding by an NCA of an infringement of Article 81 or 82 EC is accurate. 

ACQUIS  COMMUNAUTAIRE  AND  POSSIBLE  MEASURES  TO  ENSURE  EFFECTIVE 
ANTITRUST DAMAGES ACTIONS 

Acquis communautaire: binding effect of decisions by the Commission 

Recital 22 of Regulation 1/2003 recalls that “in order to ensure compliance with the 
principles  of  legal  certainty  and  the  uniform  application  of  the  Community 
competition  rules  in  a  system  of  parallel  powers,  conflicting  decisions  must  be 
avoided”.  One  rule  that  serves  this  purpose  is  contained  in  Article  16(1)  of 
Regulation  1/2003,  which  codifies  the  ECJ’s  interpretation  of  the  Treaty,  in 
particular in its Masterfoods judgment61. Article 16(1) provides that: 

“When national courts rule on agreements, decisions or practices under Article 81 or 
Article 82 of the Treaty which are already the subject of a Commission decision, they 
cannot  take  decisions  running  counter  to  the  decision  adopted  by  the  Commission. 
[...]. This obligation is without prejudice to the rights and obligations under Article 
234 of the Treaty.” 

On  the  basis  of  this  rule,  claimants  who  bring  actions  for  damages  before  national 
courts subsequent to a Commission decision, can rely on the Commission’s decision 
directly as irrebuttable proof that an addressee of the decision infringed Article 81 or 
82 EC. The obligation of national courts not to run counter to a Commission decision 
concerns the operative part of the decision which “must be construed in the light of 
the statement of the reasons upon which it is based”.62 

Such  binding  effect  of  the  Commission’s  decision  is  without  prejudice  to  the 
interpretation  of  Community  law  by  the  Court  of  Justice.  If  the  national  court  has 
serious doubts on the legality of the Commission’s decision, it can refer a question to 
the  Court  of  Justice  for  a  preliminary  ruling  (Article  234  EC).  Where  the 
Commission’s  decision  is  challenged  before  the  Community  courts  pursuant  to 
Article 230 EC and the outcome of the dispute before the national court depends on 
the  validity  of  the  Commission’s  decision,  the  national  court  should  stay  its 

61 
62 

See Case C-344/98 Masterfoods [2000] ECR I-11369. 
Case T-266/97 Vlaamse Televisie Maatschappij NV v Commission [1999] ECR Page II-2329 paragraph 
151.  See  also  Joined  Cases  40/73  to  48/73  and  others  Suiker  Unie  [1975]  ECR  1663  paragraph  123: 
“operative part of the decision […] considered in the light of the statement of reasons”. 

EN 

42 

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proceedings pending final judgment in the action for annulment by the Community 
courts.63 

Acquis communautaire: 

National  courts  cannot  take  decisions  ruling  on  agreements,  decisions  or 
practices  under  Article  81  or  Article  82  EC  that  run  counter  to  a  decision 
adopted by the Commission on the same agreements, decisions or practices. 

Commission decisions finding an infringement of Article 81 or 82 EC therefore 
constitute a sufficient legal proof of this infringement by the addressee(s) of the 
decision in subsequent actions for damages before national courts. 

This effect of a Commission decision can only be removed by a judgment of the 
Community courts under Article 230 or 234 EC. 

2. 

Binding effect of NCA decisions finding an infringement of Article 81 or 82 EC 

142.  Whilst it is not the general rule in the Member States that decisions of administrative 
bodies (such as most NCAs) are legally binding on national courts in civil matters,64 
with  respect  to  the  decisions  of  NCAs  in  competition  cases  some  Member  States 
have  introduced  a  rule  that  civil  courts  in  follow-on  proceedings  for  antitrust 
damages cannot deviate from the NCA decision.65 

143. 

a. 

144. 

63 

64 

65 

For the reasons set out below, the Commission considers that effective facilitation of 
antitrust  damages  actions  requires  the  introduction  of  such  a  binding  effect  for  the 
decisions  of  all  NCAs  establishing  an  infringement  of  Article  81  or  82  EC.  It  is 
submitted that this rule should be based on the  mechanism of the rule contained in 
Article  16(1)  of  Regulation  1/2003  relating  to  the  effect  of  the  Commission 
decisions, but should be more limited than this rule in several aspects (see paragraphs 
152 et seq. below). 

Irrebuttable probative effect of NCA decisions ensures the coherent application 
of Articles 81 and 82 EC and the effectiveness of antitrust damages actions 

A rule endowing NCA decisions with legally binding effects in damages cases before 
national civil courts regarding the same infringement of Article 81 or 82 EC would 
significantly  enhance  the  consistent  application  of  Community  antitrust  law  and 
increase  legal  certainty.  The  latter  aspect  has  been  emphasised  by  the  Court  of 
Justice, for example, in its Delimitis judgment, in relation to the possibility that civil 
courts  deviate  in  competition  cases  from  a  Commission  decision:  “conflicting 
decisions  [by  civil  courts]  would  be  contrary  to  the  general  principle  of  legal 

Unless  the national  court  considers  that,  in  the  circumstances  of  the  case,  a  reference  to  the  Court of 
Justice  for  a  preliminary  ruling  on  the  validity  of  the  Commission  decision  is  warranted.  See 
Masterfoods (footnote 61 above) paragraph 57. 
Such effects are, however, by no means unknown in Member States: it does occur that the findings of 
an administrative or a regulatory body concern a condition of a civil claim and have to be taken, under 
national law, as an irrebuttable fact in the civil law suit. 
See, for instance, Sections 18 and 20 of the UK Enterprise Act 2002, inserted as sections 47A and 58A 
into  the  UK  Competition  Act  1998,  and  Section  33(4)  of  the  German  Competition  Act.  Another 
example  is  found  in  Article  88/B  of  the  Hungarian  Competition  Act  (Act  LVII  of  1996  on  the 
Prohibition of Unfair and Restrictive Market Practices), introduced by Act LXVIII of 2005. 

EN 

43 

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145. 

146. 

147. 

certainty and  must, therefore, be avoided”.66 The risk of inconsistent application of 
Articles  81  and  82  EC  by  different  national  instances  has  become  more  significant 
since  the  introduction  of  parallel  full  competences  for  the  enforcement  of  these 
Articles by the Commission, NCAs and national courts. Preventing decisions of civil 
courts,  where  the  same  facts  are  concerned,  from  running  counter  to  the  final 
findings of an NCA (or a review court) would indeed complement the mechanisms 
safeguarding  the  consistent  application  of  Articles  81  and  82  EC  provided  for  in 
Regulation 1/2003. 

A rule providing that national courts in civil proceedings for damages will accept the 
findings  in  NCA  decisions  as  incontestable  findings  would,  furthermore,  relieve 
claimants  of  the  difficulty  of  having  to  formally  prove  again  that  the  defendant 
infringed Article 81 or 82, a fact which was already established by the NCA. Such 
relitigation of legal and factual issues that were already decided in the proceedings 
before  the  NCA, and  often  also before  review courts, would indeed add significant 
costs and imponderability to the victim’s action for damages and can be dissuasive to 
bringing such an action. 

If defendants were allowed to call into question the findings of the NCA (and review 
court) decisions, civil  courts seised with  a  claim  for  damages  would  be  required  to 
re-examine  all  the  facts  already  investigated  and  assessed  by  a  specialised  public 
authority and possibly review court. Such duplication of factual and legal assessment 
would not only generate considerable extra costs and extend the duration of the court 
proceedings  on  the  claim  for  damages,  it  is  also  not  warranted  by  objective 
considerations. In all Member States, the findings of the NCA are open to substantive 
and procedural scrutiny by review courts. It is these courts which are best placed to 
ensure the legal and factual accuracy of NCA decisions. Once this appeal process has 
been  exhausted,  there  is  no  justification  why  the  same  issues  should  be  litigated 
again.67 

The option considered in the Green Paper to merely shift the burden of proving the 
absence of an infringement onto the defendant would not produce the same result in 
terms of rendering antitrust damages actions in follow-on cases more effective and in 
terms  of  ensuring  consistency  in  the  application  of  Articles  81  and  82  EC.  Such  a 
rule would still allow the defendant to call the findings of the NCA in their entirety 
into  question.  Defendants  could  reiterate  their  views  on  the  factual  and  legal 
assessment  of  the  NCA  (as  upheld  by  the  competent  review  court(s)),  thereby 
unnecessarily giving rise to the aforementioned uncertainties, costs and delays of the 
action for antitrust damages. The appropriate route for a defendant to challenge the 
NCA decision establishing his infringement of Article 81 or 82 is to lodge an appeal 
before  the  competent  review  courts  against  this  decision  within  the  applicable  time 
limits. Once this route has been exhausted, there is no reason to allow relitigation of 
the same issues in the civil proceedings for damages. 

148. 

A  rule  endowing  NCA  decisions  with  legally  binding  effects  for  civil  courts  in 
antitrust damages proceedings would not, as explained in the following paragraphs, 

66 
67 

See Case C-234/89 Stergios Delimitis v Henninger-Bräu AG ECR [1991] I-935 paragraph 47. 
The Commission suggests endowing only those NCA decisions with binding effect for which all appeal 
avenues have been exhausted or the time limits have expired, see below at paragraph 155. 

EN 

44 

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149. 

150. 

unduly  interfere  with  the  principles  of  an  independent  judiciary  and  separation  of 
powers, which are part of Member States’ constitutional orders. 

First, the rule would make only final NCA decisions binding, i.e. those which either 
have been accepted by their addressees (by refraining from an appeal) or which were 
confirmed upon appeal by the competent review courts. It would therefore often be a 
judgment confirming the NCA decision that binds the judge hearing the civil case on 
damage  claims.  The  concept  that  ultimate  review  court  judgments  can  bind  other 
courts in cases where the same matter is at stake and the same persons are concerned 
is a familiar notion in Member States, for instance in the (slightly different) context 
of the res iudicata principle or the issue estoppel rule. The Commission notes that the 
burden of proof in administrative proceedings for breach of the competition rules is 
likely not to be lower than the burden of proof in civil actions for damages for the 
same  infringement.  Therefore,  the  standards  of  proof  that  the  civil  courts  must 
uphold  with  regard  to  the  juridical  fact  of  infringement  are  not  in  any  way 
undermined by the binding effect of NCA decisions. 

Second,  a  rule  on  the  effect  of  NCA  decisions  in  civil  law  suits  for  damages 
modelled after Article 16(1) of Regulation 1/2003 would not prevent a national court, 
in the event it has serious doubts as to the legal correctness of the interpretation of 
Article 81 or 82 EC by the NCA, to make use of its right (and possibly obligation) to 
refer  the  question  for  preliminary  ruling  to  the  Court  of  Justice  pursuant  to  Article 
234 EC. National civil courts would thus retain their judicial independence to hold a 
diverging view on the interpretation of the law; they would merely be prevented from 
applying  Article  81  or  82  EC  in  a  manner  that  runs  counter  to  the  NCA  decision 
without  first  having  obtained  clarification  from  the  Court  of  Justice  on  this 
question.68 

151. 

In  light  of  the  above,  the  Commission  proposes  the  following  rule  on  the  binding 
effect of NCA decisions on Article 81 or 82 EC in antitrust damages actions before 
national civil courts: 

When national courts in actions for damages rule on agreements, decisions or 
practices under Article 81 or Article 82 EC which are already the subject of a 
final  decision  by  an  NCA  within  the  European  Competition  Network  (ECN) 
finding an infringement of Article 81 or Article 82 EC, or are the subject of a 
final ruling by a review court upholding the NCA decision or itself finding an 
infringement, they cannot take decisions running counter to such a decision or 
ruling. 

This  obligation  is  without  prejudice  to  the  right,  and  possibly  obligation,  of 
national courts to seek clarification on the interpretation of Article 81 or 82 EC 
under Article 234 EC. 

Types of NCA decisions concerned 

The above suggestion concerns decisions of NCAs applying Article 81 or Article 82 
EC, not those applying national law only. Negative decisions confirming that certain 

It  may  also  be  that  the  court  seised  with  an  appeal  against  the  NCA  decision  has  already  taken  the 
initiative to refer questions on the interpretation of Article 81 or 82 EC to the Court of Justice. 

b. 

152. 

68 

EN 

45 

   EN 

                                                 
agreements or practices do not constitute an infringement of Article 81 or Article 82 
EC are not part of Article 5 of Regulation 1/2003, which sets out an exhaustive list of 
the types of decisions an NCA can take when applying Article 81 or Article 82 EC. 
The above rule therefore relates only to decisions finding an infringement of Article 
81 or Article 82 EC. 

153. 

Article 5 of Regulation 1/2003 also implies that NCA decisions applying Article 81 
or Article 82 EC can be invoked with binding effect in follow-on actions only to the 
extent that they find an infringement. Negative statements in infringement decisions 
on the absence of an infringement for certain aspects of the case are not covered. 

c. 

Conditions for binding effect of NCA decisions 

(i) Same infringers and same practices 

154. 

155. 

The probative effects of an NCA decision in civil damages cases pursuant to the rule 
set  out  in  paragraph  151  above  would,  of  course,  be  confined  to  the  scope  of  the 
decision: like Article 16, they can only relate to (i) the same agreements, decisions or 
practices that the NCA found to infringe Article 81 or Article 82 EC, and (ii) to the 
same individuals, companies or groups of companies which the NCA found to have 
committed  this  infringement  (normally,  the  addressee(s)  of  the  decision).  The 
requirement that there is identity of the infringer would ensure that the NCA decision 
can only be invoked against undertakings that were a party to the NCA proceedings 
and therefore had the opportunity to make their arguments on the substance known 
and to exercise their rights of defence. Identity of all parties of the civil proceedings 
with those of the administrative proceedings (as in the res iudicata rule) can naturally 
not be required for a binding effect of NCA decisions, because the claimants in the 
civil  proceedings  are  not,  or  at  least  not  necessarily,  a  party  or  participant  in  the 
proceedings before the NCA (e.g. as complainants). 

(ii) Only decisions that are final 

The rule  set out  in  paragraph 151 concerns only  decisions that  are  final. “Final” in 
this  context  means  that  all  appeal  avenues  against  the  NCA  decision69  have  been 
exhausted or that the relevant time limits for appeal have expired with respect to the 
defendant concerned. This means that defendants in civil proceedings would not only 
have  had  the  opportunity  of  exercising  their  rights  of  defence  before  the  NCA,  but 
also  the  opportunity  of  persuading  the  review  court(s)  of  their  position.  Where  the 
undertakings  concerned  have  accepted  the  NCA  decision  (by  not  appealing  against 
it)  or  where  review  courts  have  confirmed  the  decision,  the  Commission  sees  no 
reason why a final NCA decision, or a final ruling by a review court upholding the 
NCA  decision  or  itself  finding  an  infringement,  should  not  be  accepted  as 
irrebuttable proof by national civil courts set out in paragraph 151 above. 

156. 

Such  a  rule  would  not  create  over-incentives  that  would  lead  to  unmeritorious  or 
frivolous  lawsuits.  As  pointed  out  before,  the  binding  probative  effect  would  be 
attributed  only  to  NCA  decisions  as  confirmed  by  review  courts  or  accepted  by 
defendants. Moreover, such effect would normally only alleviate the claimants’ proof 
of  the  existence  and  the  scope  of  the  antitrust  infringement.  Accordingly,  it  would 
not alter the scope of the other conditions for a successful damages claim, such as the 

69 

See footnote 60 above. 

EN 

46 

   EN 

                                                 
quantification  of  damage  and  the  establishment  of  a  causal  link  between  the 
infringement and the damage. 

157.  Where an appeal is pending against the NCA decision,70 national civil courts seised 
with a damages action are encouraged to consider whether staying their proceedings 
is  appropriate.  It  may,  however,  well  be  that  the  appeal  against  the  NCA  decision 
does not question the finding of an infringement, but for example only challenges the 
amount of the fine imposed. In this case, there is no risk of conflicting decisions that 
would warrant a suspension. 

d. 

158. 

159. 

160. 

Territorial scope of binding effect of NCA decisions 

As  mentioned  above,  some  respondents  to  the  Green  Paper  argued  that  an  NCA 
decision should only be binding upon the domestic courts of the Member State of the 
NCA.  A  number  of  others  saw,  however,  no  compelling  reasons  for  a  distinction 
between the domestic NCA and NCAs in other Member States, which are all part of 
the  ECN.  There  is  also  the  example  of  recent  national  legislation  that  explicitly 
endows the decisions of all NCAs within the ECN applying Article 81 or 82 with a 
binding effect upon its civil courts.71 

Limiting  the  effects  of  NCA  decisions  to  antitrust  damages  proceedings  brought 
before  the  civil  courts  of  the  same  Member  State  can  indeed  create  significant 
complications and dissuasive effects for victims who consider bringing an action for 
damages. 

This  concerns,  for  example,  cases  where  a  decision  of  one  Member  State’s  NCA 
finds an infringement of Article 81 or 82 EC and where the claimant decides to file a 
claim  for  antitrust  damages  in  another  Member  State,  for  instance  because  the 
defendant  (or  one  of  several  defendants)  is  domiciled  there.  An  NCA  decision  in 
most  cases  concerns  infringements  that  occurred  on  the  territory  of  that  NCA’s 
Member State. Compared to civil courts located in another Member State, the NCA 
will  usually  be  particularly  well-placed,  due  to  its  proximity,  to  investigate  and 
assess  the  alleged  infringement  of  Article  81  or  82  EC.  If  a  civil  court  in  another 
Member  State  were  forced  to  re-investigate  and  re-assess  whether  an  infringement 
has occurred, it would face a range of practical difficulties. It would inter alia have 
to  take  evidence  in  another  country,  possibly  in  a  different  language  than  the 
language  of  the  court,  and  in  all  likelihood  after  even  more  time  has  elapsed  than 
when the NCA initially investigated and assessed the infringement. Any re-opening 
of the same issues, which are already the subject of a final decision by a specialised 
competition  authority  that  was  either  confirmed  on  appeal  or  accepted  by  the 
defendant 
through  refraining  from  an  appeal,  would  add  an  unnecessary 
imponderability to the civil proceedings and increase their cost and duration. 

161. 

Dissuasive  effects  also  arise,  for  example,  in  other  constellations:  antitrust 
infringements occurring in several Member States are frequently related. Where such 
infringements  are  the  subject  of  decisions  by  several  NCAs,  a  victim  who  suffered 
damages as a result of these infringements can have a legitimate interest in bringing a 
damages action against the infringer(s) involved before one single civil court. Such a 

70 
71 

Or while the relevant time limits for filing an appeal have not yet expired. 
See e.g. Section 33(4) German Competition Act. 

EN 

47 

   EN 

                                                 
162. 

concentration  of  proceedings  greatly  enhances  procedural  economy  and  helps  to 
avoid  conflicting  judgments.  To  foster  these  objectives,  Article  6(1)  of  Regulation 
44/200172  allows  tort  victims  to  cumulate  their  damages  actions  against  all  co-
defendants before one court of the country where at least one of them is domiciled. A 
rule that limits the binding probative effect of NCA decisions  to  those  rendered  by 
the domestic NCA would de facto create a strong disincentive against such desired 
concentration of proceedings, because the findings of the foreign NCAs would have 
to be re-investigated and re-assessed (with the dissuasive effects mentioned above). 

In order to avoid such disincentives and to enhance consistent application of Articles 
81  and  82  EC  across  Member  States,  the  Commission  considers  it  appropriate  that 
the rule set out in paragraph 151 above applies to decisions of all NCAs within the 
ECN  applying  Article  81  or  82,  regardless  of  the  Member  State  in  which  civil 
proceedings are brought. There are no reasons to introduce a distinction of the effects 
of  NCA  decisions  based  on  their  origin.  Within  the  ECN,  all  NCAs  are  equally 
competent to apply Articles 81 and 82. Pursuant to Article 11 of Regulation 1/2003, 
they  adopt  infringement  decisions  after  informing  the  Commission  and  the  other 
Member  States;  where  NCAs  envisage  conflicting  decisions  in  the  same  case  or 
decisions  which  are  obviously  in  conflict  with  consolidated  case  law,  the 
Commission  can  initiate  its  own  proceedings  and  thereby  relieve  the  NCA  of  its 
competence to apply Article 81 or 82. Moreover, the rule envisaged in paragraph 151 
above  attributes  binding  effect  only  to  final  NCA  decisions,  which  means  that  the 
addressees of decisions by foreign NCAs either had them scrutinised by at least one 
review  court,  or  accepted  them  by  refraining  from  an  appeal.  As  mentioned  above, 
civil courts that do not share the interpretation of Article 81 or 82 EC adopted by the 
NCA  and/or  the  court  reviewing  the  NCA  decision  can  refer  the  question  for 
clarification to the ECJ pursuant to Article 234 EC. 

In the context of the recognition of civil and commercial judgments, Article 34(1) of 
Regulation 44/2001 allows the courts of a Member State to exceptionally refuse the 
recognition  of  a  judgment  from  another  Member  State  on  the  ground  of  public 
policy,  primarily  if  the  right  to  fair  legal  process  was  not  guaranteed  during  the 
proceedings  leading  to  the  judgment.73  The  rights  of  defence  and  fair  trial  are 
guaranteed  by  the  European  Convention  on  Human  Rights  and  the  EU  Charter  on 
Fundamental Rights74 and all Member States’ instances are held to fully respect them 
in  the  proceedings  that  lead  to  an  NCA  decision  and  in  subsequent  review  court 
proceedings. The Commission would nonetheless see no objection if Member States 
were  to  introduce  an  additional  safeguard  ensuring  the  protection  of  the  rights  of 
defence, and to make the binding effect of an NCA decision from another Member 
State  subject  to  an  exception  analogous  to  that  contained  in  Article  34(1)  of 
Regulation 44/2001 as regards fair legal process. 

72 
73 

74 

Council Regulation (EC) No 44/2001, see footnote 14 above. 
See for the interpretation of the exception in Article 34(1) of Regulation 44/2001 (footnote 14 above) 
e.g. Case C-7/98 Krombach [2000] ECR I-1935 paragraph 21. 
See Article 6 of the Convention and Articles 47(2) and 48 of the Charter. 

EN 

48 

   EN 

                                                 
Consideration could be given to allowing an exception to the binding effect of 
NCA  decisions  from  other  Member  States  analogous  to  the  public  order 
exception  contained  in  Article  34  no1)  of  Regulation  44/2001,  with  a  view  to 
safeguarding  a  defendant’s  rights  of  defence,  as  recognised  by  the  European 
Convention on Human Rights and the EU Charter on Fundamental Rights. 

EN 

49 

   EN 

A. 

163. 

164. 

165. 

166. 

167. 

CHAPTER 5 — FAULT REQUIREMENTS 

THE  OPTIONS  IN  THE  GREEN  PAPER  AND  THE  RESULTS  OF  THE  PUBLIC 
CONSULTATION 
As  set  out  in  the  Commission’s  Green  Paper,75  Member  States  take  diverse 
approaches  on  the  interaction  between  competition  law  and  the  general  rules  on 
liability for damages, in particular as regards the question of fault (culpa). It is also 
noteworthy that the concept of fault is not a homogeneous one across Member States. 

Some Member States do not require any form of fault element as a condition for a 
damages  claim  based  on  the  infringement  of  EC  competition  law,  or  they  provide 
that  the  infringement  as  such  constitutes  fault.  Other  Member  States,  whilst 
conceptually  requiring  fault  in  addition  to  illegality,  irrebuttably  presume  the 
existence of fault once the infringement of Article 81 or 82 EC has been shown.76 

In a third group of Member States, claimants either have to demonstrate the existence 
of fault (negligence or intention) without the facilitation of any presumption, or they 
can  draw  only  on  a  rebuttable  presumption  of  fault  once  they  have  established  the 
existence of an infringement of antitrust law. 

The Green Paper put forward for discussion different options relating to the issue of 
fault  in  antitrust  damages  cases.77  These  options  ranged  from  a  regime  of  strict 
liability  over  a  differentiation  between  serious  and  less  serious  antitrust  law 
infringements to a regime where defendants could only invoke the absence of fault in 
the event that the breach of antitrust law was the result of an excusable error. 

Feedback received on these options in the Green Paper showed quite some support 
for a uniform system of strict liability in all Member States. Under such a regime, the 
proof  of  an  infringement  of  EC  competition  law  would  suffice  to  fulfil  any  fault 
requirement  in  the  litigation  for  damages.  Other  respondents  argued  in  favour  of  a 
regime allowing defendants to invoke excusable errors (factual or legal) as a defence. 
In  this  context,  some  pointed  to  perceived  difficulties  for  undertakings  to  assess  in 
factual and legal terms whether — especially in novel and complex situations — a 
certain behaviour infringes Article 81 or 82 EC. Others emphasised that care needed 
to be taken to avoid misuses of such a defence of excusable error so that exculpation 
is  limited  to  cases  of  genuine  and  objectively  excusable  errors.  Finally,  there  was 
some, albeit limited support for the option of introducing a uniform system of strict 
liability  limited  to  cases  of  the  “most  serious  antitrust  law  infringements”.  In  this 
respect, it was frequently pointed out that such a model would risk introducing a new 
legal  uncertainty  resulting  from  the  difficulties  entailed  in  determining  what 
constitutes a sufficiently serious infringement. 

75 
76 
77 

See option 6 et seq. of the Green Paper and paragraphs 101 et seq. of the 2005 Staff Working Paper. 
See, generally, Comparative Study, pages 1-50 et seq. 
See options 11, 12 and 13 of the Green Paper. 

EN 

50 

   EN 

                                                 
B. 

1. 

168. 

ACQUIS  COMMUNAUTAIRE  AND  MEASURES  TO  ENSURE  EFFECTIVE  ANTITRUST 
DAMAGES ACTIONS 

Fault requirement in the case law of the Court of Justice 

The conditions for civil liability for infringement of directly applicable provisions of 
EC law  have been addressed by the Court  of  Justice  on  various occasions. Explicit 
statements specifically on the issue of fault to date exist, however, only in the context 
of  the  liability  of  a  Member  State  for  infringing  directly  applicable  EC  law.  The 
Court of Justice clarified in its Brasserie du Pêcheur judgment that there is only very 
limited  scope  for  national  law  to  make  the  reparation  of  damages  conditional  upon 
the  existence  of  fault.  In  particular,  any  fault  requirement  under  national  law  is 
limited to the extent that the conditions for the existence of a right to damages under 
EC law encompass elements of fault: 

“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.”78 

169. 

As regards the liability of undertakings for breach of directly applicable EC antitrust 
law,  the  Court  of  Justice  mentioned  the  following  conditions  for  liability  of 
undertakings for breach of EC antitrust law: 

“(…) any individual can claim compensation for the harm suffered where there is a 
causal relationship between the harm and an agreement or practice prohibited under 
Article 81 EC”.79 

170.  With respect to liability for repairing antitrust damage, the Court thus neither refers 
to  fault  nor  to  a  sufficiently  serious  degree  of  the  breach  of  EC  antitrust  law.  This 
may suggest that the Court considers any infringement of Article 81 or 82 EC to be 
in  itself  sufficiently  serious.  Indeed,  undertakings  do  not  enjoy  any  margin  of 
discretion as  to whether  they wish  to adjust their business practices to the rules set 
out in Article 81 and 82 EC; on the contrary, competition rules are part of the set of 
imperative public policy rules.80 Moreover, infringements of antitrust rules are likely 
to entail very significant negative effects on consumer welfare and on the functioning 
of the internal market. 

171. 

The  Court’s  case  law  on  the  conditions  for  civil  liability  for  breaches  of  directly 
applicable Treaty rules and, in particular, the principle of effectiveness81 suggest that 
any fault requirements under national law would have to be limited to very specific 
and exceptional situations. 

78 
79 
80 

81 

Joined cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029 paragraph 79. 
Manfredi (footnote 8 above) paragraph 61, see also paragraph 63. 
The principle of effectiveness contains the requirement that national rules governing the enforcement of 
Community rights must not render the exercise of these rights excessively difficult. Ibidem, paragraph 
31. 
Ibidem, paragraph 62. 

EN 

51 

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172. 

2. 

a. 

173. 

b. 

174. 

175. 

The  principle  of  equivalence82  requires  Member  States  to  apply  at  least  the  same 
rules  on  the  exercise  of  the  right  to  damages  for  infringement  of  EC  competition 
rules by an undertaking as they would apply to rights for compensation derived from 
a  similar  infringement  of  national  competition  law.  It  follows,  therefore,  that 
Member States which do not require fault to be proven for the exercise of a right to 
antitrust damages or which presume (rebuttably or irrebuttably) the existence of such 
fault  with  respect  to  antitrust  infringements  under  their  national  laws,  are  bound  to 
maintain at least an equivalent standard with respect to damages for infringements of 
EC antitrust law. 

Fault requirements under national law as a condition for a victim to exercise his 
right to damages 

Member States with strict or irrebuttably presumed liability for infringements 
of Article 81 or 82 EC 

Some  Member  States  do  not  require  any  fault  at  all  as  a  condition  for  an  antitrust 
damages  claim,  while  others  irrebuttably  presume  the  existence  of  fault  once  an 
infringement  of  their  national  antitrust  laws  has  been  shown.  As  set  out  above,  the 
principle  of  equivalence  requires  Member  States  to  apply  the  same  standard  with 
respect to damage claims based on infringements of Article 81 or 82 EC. Neither the 
comments received on the Green Paper nor the Commission’s analysis indicate any 
overriding policy grounds arguing against such a regime. 

The effectiveness of actions for antitrust damages does not require changes of 
the legal regime in those Member States where, once a breach of EC antitrust 
law  has  been  established,  no  elements  of  fault  have  to  be  proven  or  fault  is 
irrebuttably presumed in civil proceedings for antitrust damages. 

Member States requiring proof of elements of fault 
As regards the legal regime in Member States which do require fault to be proven83, 
the Commission considers it appropriate to provide for more legal certainty in terms 
of  the  maximum  level  of  fault  requirements  under  national  law  that  do  not  hamper 
the effective exercise of the right to reparation and thereby the effet utile of Article 
81 or 82 EC. Below this maximum level, Member States would remain entirely free 
in  applying  any  requirements  of  fault  for  antitrust  damages  claims.  For  the  time 
being and subject to revaluation at a later stage, the Commission does not consider it 
necessary  for  ensuring  effective  damages  actions  to  introduce  across  the  EU  a 
harmonised notion of fault or a strict liability rule. 

As  mentioned  above,  the  Court’s  case  law  on  the  conditions  for  civil  liability  for 
breaches of directly applicable Treaty rules and the principle of effectiveness suggest 
that  any  fault  requirements  under  national  law  would  have  to  be  limited  to  very 
exceptional situations. Moreover, most of the factual elements and evidence required 
for  determining  whether  or  not  an  infringer  of  Article  81  or  82  EC  applied  in  all 
relevant  circumstances  the  requisite  standard  of  care  in  order  to  determine  fault 

82 
83 

Ibidem. 
Either with the burden of proof fully on the claimant, or where the proof of fault is facilitated through a 
rebuttable presumption once an infringement has been established; in the latter case, the claimant may 
have to refute a defendant’s claim of the absence of fault. 

EN 

52 

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176. 

177. 

178. 

179. 

usually lie within the sphere of the infringer. On the basis of these considerations, the 
Commission does not see any conceivable grounds to relieve infringers from liability 
for  absence  of  fault  other  than  cases  where  the  infringer  made  an  excusable  error. 
The  Commission  submits  that  the  acceptable  maximum  standard  of  fault  is  to 
presume  fault  of  the  infringer  once  his  breach  of  Article  81  or  82  has  clearly  been 
established, but to allow the possibility of exculpation to genuinely excusable errors. 
The  Commission  does  not  see  any  conceivable  grounds  to  relieve  infringers  from 
liability  for  absence  of  fault  other  than  in  cases  where  the  infringer  made  an 
excusable error. 

To this end, the Commission suggests introducing a measure that would clarify that, 
once  the  claimant  has  shown  a  breach  of  EC  antitrust  law,  the  maximum  fault 
standard that could be applied is to allow the infringer the possibility to demonstrate 
that his infringement was the result of an excusable error. 

It  also  follows  from  the  above  that  the  possibility  of  exculpation  in  the  event  of 
excusable  error  should  be  applied  restrictively.  Care  should  be  taken  that  the 
possibility  of  exculpation  is  not  abused  so  as  to  make  the  exercise  of  the  right  to 
damages excessively difficult. An error would only be excusable where a defendant 
can  show  that  a  reasonable  person  in  the  same  circumstances  applying  a  high 
standard  of  care  could  not  reasonably  have  been  aware  that  the  conduct  restricted 
competition. 

The more serious the restriction of competition by an undertaking, the less likely it 
would  be  that  the  undertaking,  whilst  applying  the  required  high  standard  of  care, 
could not have been aware of the anti-competitive object or effects. The Commission 
does  not  see  how  an  error  could  be  excusable  where  restrictions  of  competition  by 
object are concerned. 

Genuinely  excusable  errors  will  thus  be  very  rare.  They  may  occur  in  novel  and 
complex  situations.  The  mere  ignorance  of the law, however, clearly cannot render 
an error excusable; one is bound by the law even if one does not know of it. It will 
thus  normally  be  irrelevant  whether  or  not  the  undertaking  actually  realised  that  it 
was infringing Article 81 or 82 EC. Reliance on wrong legal (or other professional) 
advice, as such, equally cannot exonerate an undertaking.84 Errors based on incorrect 
official statements by  competent  public entities such as  competition  authorities and 
courts, should only be excusable where undertakings applying a high standard of care 
could reasonably rely on such statements. 

Whilst  the  general  notions  of  fault  in  the  Member  States  should  remain 
unaffected,  the  Commission  suggests  that more  legal  certainty  be  provided  in 
terms  of  which  level  of  fault  requirements  under  national  law  hamper  the 
effective exercise of the right to reparation and thereby the effet utile of Article 
81 or 82 EC. 

Once a claimant has proven an infringement of EC antitrust law, the infringer 
should  be  liable  for  damages  unless  he  shows  that  the  infringement  was  the 

84 

The Court explicitly clarified this in Case T-175/95 BASF Coatings v Commission [1999] ECR II-1581 
paragraph 152 (in the context of the fault requirement under Article 15(2) of Regulation No 17 (now 
Article 23 of Regulation 1/2003)). 

EN 

53 

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result  of  a  genuinely  excusable  error.  Errors  should  be  excusable  only  where 
the  infringer,  despite  applying  a  high  standard  of  care,  could  not  reasonably 
have been aware that his conduct restricted competition. 

Member States would remain free not to require any fault at all as a condition 
for  liability  for  antitrust  damages  or  to  irrebuttably  presume  fault  once  an 
infringement is established. 

EN 

54 

   EN 

A. 

1. 

180. 

181. 

182. 

2. 

183. 

CHAPTER 6 — DAMAGES 

THE  OPTIONS  IN  THE  GREEN  PAPER  AND  THE  RESULTS  OF  THE  PUBLIC 
CONSULTATION 

The definition of damages 

The  public  consultation  on  the  Green  Paper  showed  an  interest  in  determining  in 
general terms what is the appropriate scope of damages that victims of competition 
law  infringements  should  be  able  to  recover.85  In  other  words,  a  definition  of  what 
should constitute the basis for the calculation of the damages in a particular case. The 
basic definition of the scope of damages is mere compensation for the harm caused 
by the infringement. The Commission Green Paper suggested that this compensation 
not only refers to the actual loss due to the price increase (damnum emergens), but 
also  encompasses  the  loss  of  profit  resulting  from  a  reduction  in  sales  (lucrum 
cessans). Compensation also includes a right to interest that ensures compensation of 
real, rather than nominal values. 

The  definition  of  damages  could  also  go  beyond  mere  compensation  in  order  to 
provide  greater  incentives  for  victims  to  start  an  antitrust  damages  action.  In  that 
context, the Green Paper asked for comments on the suggestions (a) to award double 
damages for horizontal cartels, and (b) to set an interest rule that compensates more 
than real value. 

The  majority  of  respondents  to  the  Green  Paper  argued  that  damages  should  be 
regarded as a compensatory instrument. They therefore oppose a system that would 
result  in  damages  that  are  higher  than  the  loss  suffered  by  the  victim.  Within  that 
philosophy  of  compensation,  most  respondents  also  indicated  that  the  concept  of 
damages  should  be  broadly  understood,  in  order  to  ensure  that  victims  of  antitrust 
infringements  be  compensated  fully  for  their  loss,  including,  where  appropriate, 
compensation for loss of profits and interests, set in such a way that the claimant is 
given the real value of his loss. 

The calculation of damages 

Once it is conceptually clear what the scope of damages is that  victims of antitrust 
infringements can recover, these damages also need to be calculated. To that end, the 
Commission  Green  Paper  outlined  a  number  of  economic  models,  with  varying 
levels  of  complexity.86  The  question  was  asked  whether  the  presumed  accuracy 
brought by the more complex calculation methods is sufficient to outweigh the extra 
cost  and  time  involved  in  bringing  and  assessing  the  required  economic  evidence. 
From a legal perspective, the use of simpler models could be underpinned by an ex 
aequo  et  bono  estimation  of  damages.  The  latter  would  imply  that  it  is  not  always 
necessary to prove the exact amount of the damage, since it allows the court to award 
a reasonable amount, based on some economic approximation. 

85 

86 

See options 14 to 17 of the Green Paper and paragraphs 114 to 124 and 147 to 151 of the 2005 Staff 
Working Paper. 
See options 18 to 20 of the Green Paper and paragraphs 125 to 144 and 152 to 155 of the 2005 Staff 
Working Paper. 

EN 

55 

   EN 

                                                 
184. 

B. 

1. 

a. 

185. 

186. 

Finally, the Green Paper also envisaged that the Commission could provide national 
courts  with  some  guidance  on  the  calculation  of  damages.  The  majority  of 
respondents to the Green Paper reacted favourably to this suggestion, underlining the 
non-binding character of such guidance. 

ACQUIS  COMMUNAUTAIRE  AND  MEASURES  TO  ENSURE  EFFECTIVE  ANTITRUST 
DAMAGES ACTIONS 

The definition of damages 

The acquis communautaire 

The  Court  of  Justice  has  repeatedly  stated  that  in  the  absence  of  Community  rules 
governing the matter, it is for the domestic legal system of each Member State to lay 
down  the  detailed  rules  governing  the  exercise  of  rights  which  individuals  acquire 
directly under Community law. However, when laying down the applicable rules for 
the  enforcement  of  Community  rights,  Member  States  are  under  a  Community  law 
obligation  to  respect  both  the  principle  of  equivalence  and  the  principle  of 
effectiveness.87  In  its  2006  Manfredi  judgment,  the  Court  of  Justice  applied  both 
principles  to  the  definition  of  antitrust  damages.  The  judgment  is  particularly 
important because of the consequences of the Court’s interpretation of the principle 
of  effectiveness  for  the  definition  of  what  antitrust  damages  should  cover  as  a 
minimum. 

In  Manfredi,  the  Court  first  confirmed  that  “in  the  absence  of  Community  rules 
governing that field, it is for the domestic legal system of each Member State to set 
the  criteria  for  determining  the  extent  of  the  damages  for  harm  caused  by  an 
agreement  or  practice  prohibited  under  Article  81  [or  82]  EC,  provided  that  the 
principles of equivalence and effectiveness are observed.”88 According to the Court, 
“it follows from the principle of effectiveness and the right of any individual to seek 
compensation for loss caused by a contract or by conduct liable to restrict or distort 
competition  that  injured  persons  must  be  able  to  seek  compensation  not  only  for 
actual  loss  (damnum  emergens)  but  also  for  loss  of  profit  (lucrum  cessans)  plus 
interest.”89 

187.  With regard to the payment of interest, the Court refers to its earlier judgment in the 
1993 Marshall case.90 In that judgment, the Court stated 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  award  of  interest,  in 
accordance  with  the  applicable  national  rules,  must  therefore  be  regarded  as  an 
essential  component  of  compensation”.91  The  Court’s  objective  is  thus  clearly  to 
ensure  that  the  victim  is  given  the  real  value  of  the  loss  suffered.  The  reference  in 
Manfredi to the payment of interest should therefore be understood as covering the 

87 
88 

89 
90 
91 

See paragraphs 76 to 79 above. 
Manfredi (footnote 8 above) paragraph 98. Although the judgment only refers to Article 81 EC because 
of the facts underlying the case, the reasoning of the Court is such that it can also be applied to Article 
82 cases. 
Ibidem, paragraph 95. 
Ibidem, paragraph 97. 
Case C-271/91 Marshall [1993] ECR I-4367 paragraph 31. 

EN 

56 

   EN 

                                                 
whole  period  from  the  time  the  damage  occurred  until  the  capital  sum  awarded  is 
actually paid.92 

Acquis communautaire: 

infringement  are  entitled  to  full 
law 
Victims  of  an  EC  competition 
compensation  of  the  harm  caused.  That  means  compensation  for  actual  loss 
(damnum emergens) and for loss of profit (lucrum cessans), plus interest from 
the time the damage occurred until the capital sum awarded is actually paid. 

The  requirement  of  full  compensation  already  being  part  of 
the  acquis 
communautaire, the national court which asked the preliminary questions that led to 
the Manfredi judgment took it a step further and wondered whether the useful effect 
of the EC competition rules also requires “national courts to award punitive damages, 
greater  than  the  advantage  obtained  by  the  offending  operator,  thereby  deterring 
[behaviour] prohibited under [those rules].”93 

Although the Court of Justice acknowledges the deterrent effect of antitrust damages 
actions94, it did not go as far as to claim that the principle of effectiveness requires 
Member States to provide for punitive damages. It is thus, in the absence of relevant 
Community  rules,  for  the  domestic  legal  system  of  each  Member  State  to  set  the 
criteria for determining the extent of the damages. However, “in accordance with the 
principle  of  equivalence,  it  must  be  possible  to  award  particular  damages,  such  as 
exemplary  or  punitive  damages,  pursuant  to  actions  founded  on  the  Community 
competition  rules,  if  such  damages  may  be  awarded  pursuant  to  similar  actions 
founded on domestic law”.95 

Although some may find the above application of the principle of equivalence to be 
obvious, it is important to note that the Court did not consider punitive damages to be 
contrary  to  European  public  order.96  Provided  that  they  are  awarded  in  accordance 
with  the  general  principles  of  Community  law,  amongst  which  the  fundamental 
rights,  punitive  damages  founded  on  an  infringement  of  EC  competition  rules  are 
thus not excluded. They are available if and under not less favourable conditions than 
punitive damages founded on similar national law infringements are. 

Ibidem,  paragraph  32:  interest  has  “to  compensate  for  the  loss  sustained  by  the  recipient  of  the 
compensation as a result of the effluxion of time until the capital sum awarded is actually paid.” 
Manfredi (footnote 8 above) paragraph 83. 
Courage  v  Crehan  (footnote  8  above)  paragraph  27,  and  Manfredi  (footnote  8  above)  paragraph  91: 
“[T]he  existence  of  [a  right  to  claim  damages  for  loss  caused  by  a  competition  law  infringement] 
strengthens the working of the Community competition rules and discourages agreements or practices, 
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”. 
Manfredi (footnote 8 above) paragraph 93. 
Compare with Article 26 of Regulation 864/2007 on the law applicable to non-contractual obligations 
(“Rome II”, footnote 12 above): “The application of a provision of the law of any country specified by 
this  Regulation  may  be  refused  only  if  such  application  is  manifestly  incompatible  with  the  public 
policy  (“ordre  public”)  of  the  forum.”  According  to  recital  32  “[i]n  particular,  the  application  of  a 
provision  of  the  law  designated  by  this  Regulation  which  would  have  the  effect  of  causing  non-
compensatory exemplary or punitive damages of an excessive nature to be awarded may, depending on 
the circumstances of the case and the legal order of the Member State of the court seised, be regarded as 
being contrary to the public policy (ordre public) of the forum.” 

188. 

189. 

190. 

92 

93 
94 

95 
96 

EN 

57 

   EN 

                                                 
Acquis communautaire: 

Victims  of  an  EC  competition  law  infringement  are  entitled  to  particular 
damages,  such  as  exemplary  or  punitive  damages,  if  and  to  the  extent  such 
damages may be awarded pursuant to actions founded on the infringement of 
national competition law. 

191. 

192. 

A  final  notion  which  the  Court  of  Justice  often  refers  to  when  it  comes  to  the 
definition  of  damages,  relates  to  unjust  enrichment.  That  notion  is  of  particular 
importance in the context of the passing-on defence, but it is useful to recall it here in 
a  more  general  context.97  In  its  Manfredi  judgment,  as  it  was  the  case  in  previous 
case law, the Court did not as a matter of Community law find that unjust enrichment 
is  prohibited.  The  notion  was  rather  referred  to  in  an  enabling  way,  namely  “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.”98 

The  fact  that  the  Court  accepts  the  existence  of  punitive  damages,  which  by 
definition  implies  a  transfer  of  assets  to  the  claimant  beyond  the  damage  actually 
suffered,  shows  that  there  is  no  absolute  principle  of  Community  law  that  prevents 
victims of a competition law infringement from being economically better off after a 
successful  damages  claim  than  the  situation  they  would  be  in  ‘but  for’  the 
infringement. It can thus be assumed that an enrichment would no longer be unjust if 
it  results  directly  from  the  application  of  the  relevant  substantive  and  procedural 
rules, meaning that it would be ‘justified’ by law. In the absence of such rules, the 
Court  seems  to  accept  domestic  rules  that  aim  at  prohibiting  enrichment  without  a 
just cause. 

Acquis communautaire: 

In the absence of Community law on the matter, Member States are allowed to 
take  steps  to  ensure  that  the  protection  of  the  right  to  claim  damages  for  the 
loss  caused  by  a  competition  law  infringement  does  not  entail  the  unjust 
enrichment of the victims. 

b. 

Measures to ensure effective antitrust damages actions 

193. 

Paragraphs  185  to  192  above  show  that  the  Court  of  Justice  has  already  to  a  large 
extent indicated where the acquis communautaire stands with regard to the definition 
of  damages.  For  reasons  of  legal  certainty  this  acquis  should  be  codified  in  a 
Community  legislative  instrument.  This  would  further  increase  the  transparency  of 
the acquis and it would thus contribute to the acquis becoming more widely known, 
both to victims and infringers. 

97 
98 

For further details, see paragraphs 209 to 211 and 217 to 218 below. 
Manfredi  (footnote  8  above)  paragraph  94.  See  also  Case  238/78  Ireks-Arkady  v  Council  and 
Commission [1979] ECR 2955 paragraph 14, Joined Cases C-441/98 and C-442/98 Michaïlidis [2000] 
ECR I-7145 paragraph 31, and Courage v Crehan (footnote 8 above) paragraph 30. 

EN 

58 

   EN 

                                                 
194. 

195. 

2. 

a. 

196. 

Given  the  broad  concept  of  full  compensation,  it  does  at  this  stage  not  appear 
necessary to suggest a definition of damages that would go beyond that concept. This 
policy choice obviously does not prevent Member States’ authorities that consider it 
appropriate, from adopting or maintaining measures or a jurisdictional practice that 
provide  for  a  damages  award  for  victims  of  a  competition  law  infringement  that 
would  go  beyond  mere  compensation.  Neither  does  this  approach  exclude  methods 
of  calculating  damages  such  as  the  ex  aequo  et  bono  method  (paragraph  183),  or 
simplified rules of estimation (paragraph 200). It is with that same objective of full 
compensation  in  mind  that  the  calculation  of  the  actual  loss  of  the  claimant  on  the 
basis  of  the  illegal  gain  of  the  defendant  is  acceptable  in  cases  where  the  exact 
calculation  of  the  harm  suffered  would  be  excessively  difficult  or  even  impossible. 
This may be the case where the claimant represents a group of victims who cannot all 
be precisely identified.99 

The acquis communautaire on the definition of damages should be codified as a 
minimum standard. 

That being said, one also has to take into account the fact that the risk/reward balance 
in antitrust damages  litigation is skewed against bringing actions. The Commission 
considers  it  necessary  to  address  this  negative  balance  by  ensuring  that  there  are 
sufficient  incentives  for  victims  of  competition  law  infringements  to  bring 
meritorious  claims.  One  way  of  doing  so  would  be  to  assure  the  claimant  a  priori 
that  if  he  wins  the  case,  he  will  be  awarded  damages  that  are  higher  than  the  loss 
actually suffered. However, as mentioned in paragraph 194, such a general approach 
would  not  appear  necessary  today.  If  it  were  to  emerge,  though,  that  the  current 
situation in Europe of very limited repair of the harm caused by infringements of the 
competition  rules  does  not  structurally  change  over  the  coming  years,  it  should  be 
considered what further incentives are required to ensure that victims of competition 
law  infringements  actually  bring  their  antitrust  damages  action.  In  that  context  the 
appropriateness of the current definition of damages might have to be reconsidered. 

The calculation of damages 

The acquis communautaire 

Although it is difficult to pronounce in general terms on the calculation of damages, 
one  can  at  least  deduce  one  consequence  from  the  fundamental  principle  of  full 
compensation that may be relevant when determining the level of the damages. The 
Court  of  Justice  has  ruled  that  the  requirement  of  full  compensation  of  the  harm 
caused  by  an  infringement  of  a  directly  effective  Community  rule  cannot  be 
reconciled  with  national  provisions  that  fix  an  upper  limit  on  the  amount  of 
compensation  that  the  victim  of  such  an  infringement  could  recover.  Indeed,  such 
national provision would limit the amount of compensation a priori to a level which 
is not necessarily consistent with the requirement of full compensation.100 

Acquis communautaire: 

The principle of full compensation implies that Member States may not a priori 

99 
100 

On representative actions, see paragraphs 49 to 56 above. 
Marshall (footnote 91 above) paragraph 30. 

EN 

59 

   EN 

                                                 
197. 

b. 

198. 

199. 

200. 

fix any form of upper limit on the amount of compensation that the victim of a 
competition law infringement could effectively recover. 

According  to  the  case  law  of  the  Court  of  Justice,  in  the  absence  of  any  further 
Community rules concerning the calculation of damages, it is for the domestic legal 
system of each Member State, and ultimately for the national judge, to determine the 
requirements  the  claimant  has  to  fulfil  when  proving  the  amount  of  the  damage 
suffered as a result of a competition law infringement, the preciseness with which he 
has to prove that amount, the methods that can be used in calculating the amount and 
the  consequences  of  not  being  able  to  fully  respect  the  requirements  set.  These 
domestic requirements are applicable provided that they are not less favourable than 
those governing similar domestic actions (principle of equivalence) and that they do 
not  render  practically  impossible  or  excessively  difficult  the  exercise  of  rights 
conferred  by  Community  law  (principle  of  effectiveness).  The  latter  principle  thus 
excludes a national court, that found that the claimant was harmed by the defendant’s 
infringement  of  the  competition  rules,  from  not  awarding  any  damages  simply 
because  the  claimant  cannot  prove  sufficiently  precisely  the  amount  of  the  harm 
suffered. 

Measures to ensure effective antitrust damages actions 

The  Green  Paper  tried  to  assist  in  the  calculation  of  damages  by  showing  the 
availability of a number of calculation methods, the outcome of which depends very 
much on the quality of the input. The methods are indeed characterised by the fact 
that the resulting approximation of the actual loss suffered seems to be proportional 
to  the  complexity  of  the  required  input.101  The  calculation  of  damages  could  thus 
become  a  very  cumbersome  exercise,  arguably  a  practically  impossible  or 
excessively difficult one, if one strictly adheres to the idea that the exact amount of 
the damage caused by a competition law infringement has to be fully compensated, 
nothing more, nothing less. 

Given the wide support for the suggestion in the Green Paper for further guidance on 
the calculation of antitrust damages, the Commission intends to draw up a framework 
to  that  end.102  The  objective  is  to  provide  pragmatic,  non-binding  assistance  in  the 
difficult  task  of  quantifying  damages  in  antitrust  cases,  both  for  the  benefit  of 
national courts and the parties. 

The  Commission  believes  that  such  assistance  should  not  only  aim  to  calculate  the 
exact  amount  of  the  actual  damage  suffered.  Far-reaching  calculation  requirements 
could  indeed  be  disproportional  to  the  amount  of  the  damage  suffered  and  can 
constitute  an  obstacle  to  bringing  an  antitrust  damages  case  and  to  obtaining 
damages.  The  Commission  is  therefore  committed  to  considering  the  possibility  of 
suggesting simplified rules of estimation in order to assist the claimant in proving his 
damage.  For  example,  the  average  overcharges  in  price-fixing  cases  could  serve  as 
guidance for courts in determining the quantum of damages. 

101 
102 

See paragraph 183 above. 
In  order  to  assist  the  Commission  in  the  formulation  of  such  a  framework,  a  study  will  be 
commissioned later this year. 

EN 

60 

   EN 

                                                 
The  Commission  intends  to  issue  non-binding  guidance  on  the  calculation  of 
damages.  As  part  of  such  guidance,  the  Commission  will  consider  suggesting 
simplified rules for estimating the loss suffered as a result of a competition law 
infringement. 

EN 

61 

   EN 

A. 

201. 

202. 

CHAPTER 7 — THE PASSING-ON OF OVERCHARGES 

THE  OPTIONS  IN  THE  GREEN  PAPER  AND  THE  RESULTS  OF  THE  PUBLIC 
CONSULTATION 

the 

that  results  from 

loss  of  profit  (lucrum  cessans) 

If  as  a  result  of  a  competition  law  infringement,  a  purchaser,  e.g.  a  wholesaler,  is 
buying  his  goods  or  services  at  a  supra-competitive  price,  he  suffers  a  harm  for 
which he can seek compensation. That harm is composed of the actual loss (damnum 
emergens)  and 
the 
infringement.103  The  actual  loss  is  the  illegal  overcharge,  namely  that  part  of  the 
price  paid  that  is  in  excess  of  the  competitive  price.  Depending  on  a  number  of 
economic variables,104 this (direct) purchaser may or may not be able to pass on all 
or some of the illegal overcharge to the next (indirect) purchaser in the chain, e.g. a 
retailer  or  a  consumer.  In  case  of  (partial)  passing-on,  this  next  line  of  purchasers, 
who  are  only  indirectly  linked  with  the  initial  anti-competitive  behaviour,  in  turn 
suffers a loss by paying a supra-competitive price which has been passed on to them. 
The  question  addressed  in  this  Chapter  is  whether  the  defendant  in  an  antitrust 
damages case should be allowed to invoke the claimant’s passing-on in order to limit 
his liability for compensation. Linked to this question is the issue of whether, and if 
so, how a purchaser to whom an illegal overcharge has been passed on, will be able 
to be compensated for the harm resulting from that passing-on. 

Before addressing this question further, it has to be recalled that the passing-on issue 
only  addresses  the  passing-on  of  overcharges.  It  has  no  bearing  on  the  claimant’s 
entitlement  to  compensation  of  other  harm  suffered,  namely  the  loss  of  profit. 
Depending  on  the  price  setting  in  the  resale  market,  the  (partial)  passing-on  of  the 
overcharge by the claimant, and thus the price increase of his product, normally leads 
to a reduction in the quantity the claimant is selling. The resulting loss of profit is a 
harm that has been caused by the defendant’s illegal increase in price and should thus 
be compensated by the latter. The argument that the claimant’s increase in price was 
his  own  choice  for  which  the  defendant  cannot  be  held  liable,  cannot  be  accepted. 
Indeed, the only alternative — if at all economically viable — for the claimant would 
have been to (fully or partially) absorb the illegal price increase himself. Since in that 
scenario  the  resulting  actual  loss  for  the  claimant  would  clearly  be  recoverable,  so 
should be the actually incurred loss of any profits that directly results from a passed 
on overcharge. 

203. 

In  the  Green  Paper,105  the  Commission  left  open  the  question  whether  or  not  a 
defendant should be able to invoke the passing-on defence. It presented both options, 
combined with the issue of standing for indirect purchasers, for public consultation. 
Although at first sight, respondents appeared to be very much divided on the issue, 
they  all  seemed  to  base  their  position  on  the  same  concern:  avoiding  unjust 
enrichment; for some, that of the claimant, for others, that of the defendant. 

103 
104 

105 

See paragraphs 185 to 187 above. 
It would appear that passing-on is more likely if it relates to the variable costs of the purchaser, if there 
is a high degree of competition at the purchaser’s level and if demand elasticity is low. 
See options 21 to 24 of the Green Paper (footnote 1 above) and paragraphs 156 to 157 and 181 to 187 of 
the 2005 Staff Working Paper (footnote 2 above). 

EN 

62 

   EN 

                                                 
204. 

B. 

205. 

206. 

207. 

1. 

208. 

Those  who  opposed  the  prohibition  of  the  passing-on  defence,  mainly  raised  two 
objections.  They  argued  that  the  passing-on  defence  is  necessary  to  avoid  a  direct 
purchaser who passed on the overcharge from receiving damages for a harm he did 
not suffer. If in addition to that undue payment, the defendant would also have to pay 
damages  to  those  who  were  really  harmed  by  the  infringement,  namely  those 
downstream  of  the  direct  purchaser,  the  liability  of  the  former  would  lead  to  a 
multiple recovery. Others consider this scenario to be purely theoretical. They argue 
that when the passing-on defence is allowed, direct purchasers will be less inclined to 
start  an  antitrust  damages  action.  Since  the  purchasers  further  downstream  usually 
have difficulties in bringing the evidence of the infringement and of how it relates to 
the  damage  suffered,  the  passing-on  defence  may  de  facto  lead  to  no-one  being 
compensated at all. 

MEASURES TO ENSURE EFFECTIVE ANTITRUST DAMAGES ACTIONS 

The Court of Justice has confirmed that “any individual can claim compensation for 
the  harm  suffered  where  there  is  a  causal  relationship  between  that  harm  and  an 
agreement or practice prohibited under Article 81 [or Article 82] EC.”106 From this 
statement it can be deduced that there can be no a priori limitation as to the standing 
of  direct  and indirect purchasers in antitrust damages cases.107 However, given that 
the Court emphasised the requirement of causality, the finding of the Court does not 
exclude national provisions or case law that lead to barring damages actions brought 
by certain indirect purchasers for reasons of remoteness. 

Since both direct and indirect purchasers can claim compensation for the harm they 
suffered,  and  acknowledging  the  overarching  objective  of  achieving  effective  and 
full  compensation  for  the  harm  caused  by  a  competition  law  infringement,  the 
question  arises  as  to  what  are  the  appropriate  policy  measures  with  regard  to  the 
passing-on of overcharges resulting from that infringement. 

This section distinguishes between two basic scenarios. The first scenario is the one 
in which a defendant invokes the passing-on of overcharges  as  a shield in order to 
mitigate  the  damages  claim  brought  by  a  purchaser  other  than  the  final  consumer, 
particularly an action brought by the direct purchaser (paragraphs 208 to 213). The 
second scenario is the one in which a claimant other than the direct purchaser relies 
on the passing-on of overcharges (as a sword) in order to substantiate his damages 
claim against the defendant (paragraphs 215 to 220). The final section analyses the 
specific issues that arise when purchasers at different levels in the distribution chain 
bring joint, parallel or consecutive damages actions (paragraphs 221 to 225). 

The  passing-on  shield  against  an  action  brought  by  a  purchaser  other  than  the 
final consumer 

For  a  claimant  to  be  awarded  antitrust  damages,  he  has  to  bring  evidence  of  the 
antitrust  infringement  and  of  the  harm  this  infringement  has  caused  him.  For  some 
antitrust  infringements,  such  as  price-fixing  cartels  or  retail  price  maintenance 
systems,  part  of  that  harm,  namely  the  actual  loss,  follows  from  the  illegal 

106 
107 

Manfredi (footnote 8 above) paragraph 61. 
On the standing of indirect purchasers, see paragraphs 33 to 37 above. 

EN 

63 

   EN 

                                                 
209. 

210. 

211. 

212. 

overcharge. In a case where the victim of the competition law infringement is not a 
final consumer, he may have used this illegally increased price as a basis for setting 
the  sales  price  of  his  own  product.  The  overcharge,  and  thus  also  the  ‘actual  loss’ 
part of the harm, may therefore have been partly or completely passed on to the next 
level in the distribution chain. 

To the extent that the claimant did not suffer the (entire) actual loss resulting from 
the  illegal  increase  in  price,  he  should  not  be  able  to  (entirely)  recover  the  illegal 
price increase imposed upon him. Given the objective of ensuring full compensation 
of  the  harm  that  a  claimant  has  suffered  as  the  result  of  a  competition  law 
infringement,  the  defendant  should  be  allowed  to  invoke  the  passing-on  of  the 
overcharge by the claimant in order to reduce the amount of damages, that the former 
may have to pay, to what the claimant really suffered. 

If the defendant would not be allowed to use the passing-on shield, it would result in 
an unjust enrichment of the claimant in a case where the latter had (partially) passed 
on the overcharge. Denying use of the passing-on shield by the defendant could also 
imply that he would have to compensate the illegal overcharge more than once. That 
would be the case if, for example both the direct purchaser (who suffered from the 
initial  price  increase)  and  an  indirect  purchaser  (to  whom  the  overcharged  was 
(partially) passed on) were both to claim antitrust damages for the same illegal price 
increase. 

The  negative  consequences  of  a  prohibition  to  invoke  the  passing-on  defence  are, 
however,  more  modest  when  no-one  downstream  of  the  claimant  is  bringing  an 
antitrust damages case, for example because the damage is too limited or too difficult 
to  prove.  In  that  case  only  the  argument  related  to  the  unjust  enrichment  of  the 
claimant remains relevant. That would, however, not be a legal impediment as long 
as the prohibition to use the passing-on shield was itself established by law. Such a 
law could be justified by the more compelling need to avoid a situation in which the 
defendant  does  not  compensate  anyone  for  the  harm  caused  by  the  infringement. 
That would precisely be the result when the passing-on shield could be used against 
the claimant, while no-one downstream of the claimant brings a damages case. 

The  observations  in  the  previous  paragraph  appear,  however,  not  sufficiently 
persuasive  to  deprive  the  defendant  from  his  right  to  dispute  the  evidence  brought 
forward by the claimant in determining his damage. Moreover, since the Commission 
considers  it  appropriate  to  address  the  obstacles  faced  by  claimants  who  find 
themselves  towards  the  end  of  the  distribution  chain  (thus  more  likely  to  have 
relatively  small  and  scattered  damage  and  a 
the 
infringement),108  it  would  be  incoherent  to  devise  a  policy  on  the  basis  of  the 
assumption  that  these  claimants  do  not  bring  a  damages  claim.  As  a  result,  the 
defendant in an antitrust damages case would have to be entitled to raise the passing-
on defence against the claimant who is not a final consumer. 

long  causation 

line 

to 

213. 

The argument that the claimant passed on (part of) the overcharge resulting from the 
competition law infringement is a means for the defendant to correct the claimant’s 
allegation and calculation of the harm he suffered. It is thus to be defined as a means 

108 

On collective and representative actions, see Chapter 2, section C. 

EN 

64 

   EN 

                                                 
of defence. Consequently, the burden of proving the passing-on of overcharge would 
have to lie with the defendant.109 That implies that it would be up to the defendant to 
bring evidence (1) of the fact that the overcharge has been passed on and (2) of the 
extent to which the overcharge has been passed on. 

214. 

Although the standard to which the passing-on and its extent should be demonstrated 
depends  primarily  on  national  law,  the  effectiveness  of  an  antitrust  damages  claim 
would  suffer  from  a  too  low  standard.  That  is  particularly  so  if  the  standard  of 
proving the passing-on would be lower than the standard to which the claimant has to 
prove  the  damage  he  suffered.  That  situation  would  amount  to  a  reversal  in  the 
burden of proof, which cannot be reconciled with the objective of achieving effective 
and full compensation of the harm caused by a competition law infringement. As a 
result, the standard of proof for the passing-on cannot be lower than the standard to 
which the claimant has to prove the existence and the amount of his damage. 

The  defendant  in  an  antitrust  damages  case  should  be  entitled  to  rely  on  the 
passing-on  defence  against  a  claim  for  compensation  of  the  overcharge, 
brought by a claimant who is not a final consumer. 

The burden of proving the passing-on of overcharge would have to lie with the 
defendant. The standard of proof for the passing-on should not be lower than 
the standard to which the claimant has to prove the damage. 

2. 

215. 

216. 

The  passing-on  sword  in  an  action  brought  by  a  purchaser  other  than  the  direct 
purchaser 

As  said  before,  a  claimant  bears  the  burden  of  bringing  evidence  of  the  antitrust 
infringement, of the harm he suffered and of the causal link between both. Bringing 
sufficient  evidence  may  be  particularly  difficult  for  those  in  the  distribution  chain 
who  do/did  not  have  a  direct  contractual  or  non-contractual  relationship  with  the 
tortfeasor.  However,  in  those  situations  in  which  the  illegal  overcharge  has  been 
(partially) passed on, they are the ones who are really harmed by the competition law 
infringement. In order to ensure effective and full compensation of the harm caused 
by a competition law infringement, it is therefore not only appropriate to allow the 
defendant to invoke the passing-on defence (see paragraphs 209 to 212), but also to 
mirror  this  defence  possibility  by  addressing  this  particular  obstacle  for  indirect 
purchasers to bring an antitrust damages claim. 

In order to prove that the damage claimed was caused by the initial competition law 
infringement,  the  claimant  will  have  to  reconstruct  the  distribution  chain,  thereby 
showing a link between the goods or services he purchased and the goods or services 
that  were  subject  of  the  infringement.  That  reconstruction,  however,  is  in  itself  not 
yet  sufficient  to  prove  that  the  claimant  bought  his  goods  or  services  at  a  supra-
competitive  price  and  that  such  overcharge  was  due  to  the  initial  competition  law 
infringement. 

109 

Compare Section 33(3)(2) GWB as amended by the 7th amendment, whereby the passing-on defence is 
not excluded as a matter of German civil law. According to the report before the German Parliament, 
the  facts  underlying  that  defence  have  to  be  proven  by  the  defendant  (Deutscher  Bundestag  —  15. 
Wahlperiode, Drucksache 15/5049, page 49). 

EN 

65 

   EN 

                                                 
217. 

218. 

Bringing sufficient evidence of whether and if so, to what extent, the overcharge that 
resulted from the initial infringement has been passed on along the distribution chain 
is  equally  difficult  for  both  the  defendant  and  for  the  claimant  who  is  not  a  direct 
purchaser.  That  implies  that  whoever  bears  the  burden  of  proof  risks  a  negative 
effect. If the claimant would bear the full burden of showing the passing-on and its 
extent, he risks not being compensated for the harm he suffered. In such scenario, the 
defendant,  who  may  (have)  successfully  use(d)  the  passing-on  shield  vis-à-vis 
another claimant upstream, does not compensate anyone for the harm caused by the 
infringement. This outcome would not only be contrary to the objective of effective 
and full compensation of the harm caused by a competition law infringement, but it 
can also be qualified as an unjust enrichment of the defendant.110 If, conversely, the 
burden of proof would lie with the defendant and he cannot prove the limits of the 
passing-on,  he  risks  multiple  liability  in  case  both  the  direct  purchaser  and  others 
claim  damages  for  the  same  (part  of  the) overcharge.  In  such  a  scenario,  claimants 
other than the direct purchaser may receive damages for a harm they did not suffer. 
Such payment amounts to an unjust enrichment on their side. 

Because the scenario according to which the defendant is unjustly enriched is more 
likely than the one where he would face multiple liability, the Commission considers 
it appropriate to ease the claimant’s burden of proving the passing-on and its extent. 
Indeed,  for  the  defendant  to  face  multiple  liability,  three  conditions  are  to  be 
fulfilled. First, he is sued for compensation of the same (part of the) overcharge by 
both  direct  and  other  purchasers,  while  only  one  has  suffered  the  harm  due  to  that 
given  overcharge;  second,  the  defendant  cannot  successfully  invoke  the  passing-on 
defence;111  and  third,  the  court  acting  in  a  joint,  parallel  or  subsequent  action  does 
not  offset  the  damages  already  awarded/paid  to  another  claimant.112  The  likelihood 
that  these  three  cumulative  conditions  are  fulfilled,  and  that  as  a  consequence  a 
defendant faces multiple liability, is considered to be much lower than the likelihood 
that, in a scenario where the overcharge has been passed on to the claimant, the latter 
is nonetheless not compensated because he could not bring sufficient evidence of the 
passing-on and its extent. Finally, even if the likelihood of non-compensation of the 
claimant  who  suffered  harm  on  the  one  hand  and  of  multiple  liability  of  the 
defendant on the other would be comparable, it can be considered justified that the 
infringer,  rather  than  the  victim,  bears  the  described  risk  burden.  Indeed,  once  the 
victim  has  demonstrated  that  there  was  an  infringement  and  an  overcharge,  it  is 
considered more equitable that the one who breached the law bears the risks flowing 
from the infringement, rather than his victim. 

219. 

In  order  to  ease  the  claimant’s  burden  of  proving  the  passing-on  of  the  overcharge 
and its extent, it is suggested that he could rely on a presumption that the overcharge 
that the defendant illegally imposed on the direct purchaser has been passed on in its 
entirety down to his level. The defendant could rebut this presumption by proving to 
the required standard of proof that the overcharge was not passed on to the level of 

110 

111 

112 

Defendants can also have a fine imposed on them by a competition authority. To the extent that the fine 
does not aim to skim the illegal profit or does not fully achieve that objective, defendants who do not 
compensate anyone for the harm caused by the infringement are unjustly enriched. 
If there was (partial) passing-on, the defendant can avoid multiple liability by invoking the passing-on 
defence as a shield (paragraphs 208 to 213 above). 
For more details on the passing-on shield and sword in joint, parallel or consecutive actions brought by 
purchasers at different levels in the distribution chain, see paragraphs 221 to 225 below. 

EN 

66 

   EN 

                                                 
220. 

3. 

221. 

the claimant or that it was only partially passed on by showing the extent to which 
the overcharge has been passed on. In that context, the defendant may want to use a 
prior judgment by which he was ordered to compensate a purchaser upstream of the 
claimant for the overcharge he suffered.113 Although the required standard of proof 
would  depend  primarily  on  national  law,  the  effectiveness  of  an  antitrust  damages 
claim would suffer from a too low standard. That situation cannot be reconciled with 
the objective of achieving effective and full compensation of the harm caused by a 
competition law infringement.114 

Overall,  the  described  presumption  is  but  a  very  limited,  although  important, 
alleviation  of  the  victim’s  burden  of  proof,  as  it  would  only  ease  the  claimant’s 
burden of proving the passing-on and its extent. The claimant would continue to bear 
the  burden  of  proving  the  infringement,  the  existence  of  the  initial  overcharge  and 
the size of his damage. He would thus have to show to what extent the overcharge, 
which  is  presumed  to  have  been  passed  on  to  him,  caused  him  harm.  Particularly 
where  in  the  course  of  the  production/distribution  chain  the  overcharged  good  or 
service was used to produce other goods or services, the claimant would still have to 
indicate  the  degree  to  which  the  goods  or  services  he  purchased  incorporate  the 
defendant’s overcharged good or service, in order to show his harm. 

An indirect purchaser would be able to rely on the rebuttable presumption that 
the illegal overcharge was passed on in its entirety down to his level. 

The passing-on shield and sword in joint, parallel or consecutive actions brought 
by purchasers at different levels in the distribution chain115 

It  may  occur  that  purchasers  at  different  levels  in  the  distribution  chain  bring  a 
damages action for harm caused by the same competition law infringement. It is not 
excluded  that  in  those  joint,  parallel  or  consecutive  actions,  purchasers  claim 
damages  for  the  harm  caused  by  the  same  overcharge.  If  the  defendant  in  those 
actions cannot prove the passing-on vis-à-vis those who claim there was no passing-
on of overcharge, nor rebut the presumption that is invoked by those who rely on the 
alleged  passing-on,  he  may  face  multiple  liability  for  the  same  overcharge.  If 
conversely,  the  defendant  can  successfully  invoke  the  passing-on  defence  vis-à-vis 
those  who  claim  there  was  no  passing-on  of  overcharge  and  rebut  the  presumption 
that  is  invoked  by  those  who  rely  on  the  alleged  passing-on,  he  will  not  have  to 
compensate  anyone.  In  order  to  attain  the  overarching  objective  of  achieving  full 
compensation  of  the  harm  caused  by  the  competition  law  infringement,  the 
Commission  suggests  the  following  measures  to  avoid  as  much  as  possible  these 
situations of over- and under-compensation.116 

113 
114 
115 

116 

See also paragraph 225 below. 
See also paragraph 217 above. 
This section does not deal with joint, parallel or consecutive actions brought by several purchasers at 
the  same  level  in  the  distribution  chain,  nor  with parallel or  consecutive  actions brought  by  the  same 
claimant against the same defendant, for instance multiple claims pursuant to Article 5(3) of Regulation 
44/2001 (footnote 14 above). Treatment of the passing-on shield and sword is considered irrelevant for 
those joint, parallel or consecutive actions. 
The issue is also referred to in paragraphs 217 and 218 regarding the burden of proving the passing-on 
in an action brought by a purchaser other than the direct purchaser. 

EN 

67 

   EN 

                                                 
222. 

If purchasers from different levels in the distribution chain bring a joint action, the 
court hearing the case should be able to avoid the contradicting outcomes described 
in  the  previous  paragraph.  Indeed,  when  all  levels  of  the  distribution  chain  are 
represented in the same action, the court should not find that the defendant has both 
proven  and  rebutted  the  passing-on  of  the  illegal  overcharge.  Conversely,  the  court 
should in the same case not find that the defendant failed both to prove and to rebut 
the passing-on. 

223.  Whereas the situation is relatively straightforward in joint actions where claims are 
concentrated  in  one  court,  it  is  much  more  difficult  to  achieve  that  same  result  in 
parallel  or  consecutive  actions  brought  by  purchasers  from  different  levels  in  the 
distribution chain. However, in order to achieve the objective of full compensation of 
the harm caused by a competition law infringement, national courts are encouraged 
to  use  all  mechanisms  available  under  national,  Community  or  international  law  to 
avoid the above described risks of under- or over-compensation. 

224. 

225. 

In  case  of  parallel  actions  brought  by  purchasers  from  different  levels  in  the 
distribution  chain  —  meaning  that  related  actions  are  at  the  same  time  pending  in 
different  courts  —  courts  are  not  obliged  to  stay  proceedings.  All  but  one  may, 
however, want to consider doing so and to the extent possible, refer the matter to a 
single court, provided that this court has jurisdiction to hear those actions. For related 
actions  pending  in  the  courts  of  different  Member  States,  national  courts  are  thus 
encouraged to use the possibility offered by Article 28 of Regulation 44/2001, which 
favours the court first seised.117 

In  case  of  consecutive  actions  brought  by  purchasers  from  different  levels  in  the 
distribution  chain,  both  the  claimant  and  the  defendant  in  the  subsequent  action 
should have to be able to invoke the judgment of the national court in the preceding 
action.  Since  the  parties  in  those  consecutive  actions  are  normally  not  identical,118 
the  judgment  in  the  preceding  action  cannot  be  binding  for  the  court  acting  in  the 
subsequent action. Subject to arguments being brought by a party in the subsequent 
action that was not a party in the preceding action, it could however be justified to 
allow the claimant or the defendant to rely on that judgment as an element of proof. 
The  defendant  could,  for  example,  invoke  an  earlier  judgment  that  ordered  him  to 
pay  damages  (a)  to  a  direct  or  (b)  to  an  indirect  purchaser,  in  order  to  rebut  the 
presumption, or as the case may be to show the existence of passing-on. Conversely, 
a claimant could invoke an earlier judgment that relieved the defendant from paying 
damages  (a)  to  the  direct  purchaser  because  of  passing-on  or  (b)  to  the  indirect 
purchaser  because  of  an  absence  of  passing-on,  as  proof  of  the  existence,  or  as  the 
case  may  be  of  the  absence  of  passing-on.  When  the  earlier  judgment  is  invoked 
against  the  party  that  was  also  a  party  in  the  preceding  action  and  that  party 

117 

118 

Article  28  reads  as  follows:  “1.  Where  related  actions  are  pending  in  the  courts  of  different  Member 
States, any court other than the court first seised may stay its proceedings. 2. Where these actions are 
pending at first instance, any court other than the court first seised may also, on the application of one 
of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question 
and its law permits the consolidation thereof. 3. For the purposes of this Article, 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.” 
Where there is identity of parties in both actions (for instance because national law allows the claimant 
in  the  subsequent  action  to  intervene  as  a  third  party  in  the  preceding  action),  the  finding  regarding 
passing-on (yes or no) in the preceding action binds both parties in the subsequent action. 

EN 

68 

   EN 

                                                 
exhausted its rights of appeal, the finding against that party could even be regarded 
as decisive evidence. 

In  case  of  joint,  parallel  or  consecutive  actions  brought  by  purchasers  at 
different levels in the distribution chain, national courts are encouraged to use 
whatever  mechanism  under  national  or  Community  law  at  their  disposal  in 
order  to  avoid  under-  or  over-compensation  of  the  harm  caused  by  a 
competition law infringement. 

EN 

69 

   EN 

CHAPTER 8 — LIMITATION PERIODS 

A. 

THE  OPTIONS  IN  THE  GREEN  PAPER  AND  THE  RESULTS  OF  THE  PUBLIC 
CONSULTATION 

226.  While a limitation period performs an important role in providing for legal certainty, 
it  can  also  constitute  a  considerable  obstacle  to  the  recovery  of  damages.  Much 
depends  on  the  duration  of  the  limitation  period,  the  moment  it  begins  to  run  and 
whether or not it can be suspended. 

227. 

228. 

229. 

B. 

1. 

230. 

An appropriate limitation period for antitrust damages claims is important for stand-
alone  cases,  but  even  more  so  for  follow-on  cases.  Indeed,  the  finding  of  an 
infringement by a competition authority could in itself prompt victims of an antitrust 
infringement  to  bring  a  damages  claim.  If  the  limitation  period  is  too  short 
(compared  to  the  length  of  proceedings  of  competition  authorities)  or  cannot  be 
suspended, a claim might be already time-barred when a decision by a competition 
authority is finally rendered, so that potential claimants are no longer able to bring a 
case. 

In order to preserve the possibility of follow-on actions, the Commission suggested 
in the Green Paper to suspend the limitation period for damages claims from the date 
proceedings are instituted by the Commission or any of the EU national competition 
authorities. Alternatively, the limitation period could start running as soon as public 
enforcement proceedings are concluded, for instance after a court of last instance has 
decided on the issue of infringement.119 

As  both  suggestions  share  the  same  objective,  there  was  wide  support  for  either 
suspension  of  the  limitation  period  during  public  proceedings  or  a  fresh  start  once 
these  proceedings  are  brought  to  an  end.  Only  a  few  submissions  proposed  a 
combination  of  the  two  alternatives,  namely  suspension  during  public  enforcement 
proceedings followed by a minimum limitation period of one or two years after the 
final decision. Finally, some commentators argued that the suggested suspension of 
the limitation period would unduly prolong legal uncertainty. 

ENSURING THE EFFECTIVENESS OF ANTITRUST DAMAGES ACTIONS 

The acquis communautaire 

The European Court of Justice held in its Manfredi judgment that, in the absence of 
Community rules governing the matter, it is for the Member States to prescribe the 
limitation  period  in  actions  for  antitrust  damages  subject  to  the  principles  of 
equivalence and effectiveness. Thus, limitation periods may not be such as to render 
practically  impossible  or  excessively  difficult  the  exercise  of  the  right  to  seek 
compensation for the harm suffered.120 

119 
120 

See option 36 of the Green Paper. 
Manfredi (footnote 8 above) paragraphs 81 and 82. 

EN 

70 

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231. 

Based on the principle of effectiveness, the Court found that “[a] national rule under 
which  the  limitation  period  begins  to  run  from  the  day  on  which  the  agreement  or 
concerted practice was adopted could make it practically impossible to exercise the 
right  to  seek  compensation  for  the  harm  caused  by  that  prohibited  agreement  or 
practice, particularly if that national rule also imposes a short limitation period which 
is not capable of being suspended.”121 

Acquis communautaire: 

A  limitation  period  cannot  be  such  that  it  renders  the  right  to  seek 
compensation practically impossible or excessively difficult. Such is the case for 
short  limitation  periods  that  begin  to  run  from  the  moment  the  infringement 
started and which cannot be suspended. 

2. 

Measures to ensure effective antitrust damages actions 

232. 

a. 

233. 

234. 

The principle that the rules governing the limitation period should be such that they 
effectively allow for antitrust damages claims to be brought has repercussions on the 
commencement date of the limitation period, the duration of the limitation period and 
how  enforcement  proceedings  by  competition  authorities  may  affect  the  limitation 
period. In order to ensure that all Member States provide the minimum safeguards in 
this respect, thereby also ensuring a more level playing field for both claimants and 
defendants, the Commission suggests the following measures with regard to each of 
the named issues. 

The commencement date of the limitation period 

The general principle in antitrust enforcement seems to be that the limitation period 
starts  to  run  on  the  day  on  which  the  infringement  is  committed.  However,  on  the 
basis  of  the  comments  received  during  the  public  consultation  it  appears  that  this 
principle needs to be nuanced. That is the case when there is a continuous or repeated 
infringement  (paragraph  234)  and  when  the  injured  party  cannot  reasonably  have 
been aware of the infringement and the harm it caused (paragraph 235). 

In  Manfredi,  the  Court  stated  that  “where  there  are  continuous  or  repeated 
infringements,  it  is  possible  that  the  limitation  period  expires  even  before  the 
infringement  is  brought  to  an  end,  in  which  case  it  would  be  impossible  for  any 
individual who has suffered harm after the expiry of the limitation period to bring an 
action.”122  Since  one  cannot  a  priori  determine  how  long  a  specific  continuous  or 
repeated antitrust infringement will last, the breach of the effectiveness principle the 
Court  refers  to  in  this  quote  cannot  be  remedied  by  setting  a  particular  duration, 
unless it were a very long duration. The Commission therefore suggests remedying 
this  situation  by  stating  that  in  case  of  a  continuous  or  repeated  antitrust 
infringement, time cannot begin to run before the day on which the infringement has 
ceased. 

235. 

Some of the most serious competition law infringements, which are most damaging 
for  consumers  and  businesses,  may  remain  covert  both  during  and  after  their 

121 
122 

Ibidem, paragraph 78. 
Ibidem, paragraph 79. 

EN 

71 

   EN 

                                                 
lifespan.  If  limitation  periods  were  to  run  while  the  infringement  has  not  yet  been 
discovered,  damages  claims  may  become  time-barred  before  the  existence  of  the 
claim has even been noticed by the victim. Since consumers and businesses harmed 
by  these  infringements  should  have  a  realistic  possibility  to  gather  the  required 
evidence  and  effectively  bring  an  antitrust  damages  claim,  it  appears  inappropriate 
that the limitation period, the duration of which in itself may be  reasonable, would 
start to run before the victim of the infringement can reasonably be expected to have 
knowledge of the infringement and of the harm it caused him. 

In case of a continuous or repeated infringement, the limitation period should 
not start to run before the day on which the infringement ceases. 

The  limitation  period  should  not  start  to  run  before  the  victim  of  the 
infringement  can  reasonably  be  expected  to  have  knowledge  of  the 
infringement and of the harm it caused him. 

b. 

The duration of the limitation period 

236. 

c. 

237. 

238. 

The  Green  Paper  already  observed  a  considerable  diversity  between  the  Member 
States  as  to  the  rules  concerning  limitation  periods,  the  duration  of  which  ranges 
between  1  and  30  years.123  At  this  stage,  the  Commission  does  not  consider  it 
necessary to suggest a minimum duration for stand-alone cases, the appropriateness 
of which would depend on the remaining determining factors of the limitation period, 
such as the commencement date, rules on suspension, interruption, restart, etc.124 It 
should be recalled, though, that the duration cannot be that short that, in combination 
with the other rules of limitation, it renders the right to seek compensation practically 
impossible or excessively difficult.125 

The effect of public antitrust proceedings on the limitation period 

The  public  consultation  has  shown  wide  support  for  the  idea  to  preserve  the 
possibility  of  follow-on  actions  by  preventing  the  possibility  that  the  limitation 
period expires while the public enforcement of the competition rules by competition 
authorities (and their review courts) is still ongoing. The further analysis of the two 
alternative  options  put  forward  in  the  Green  Paper  (see  above  at  paragraph  228) 
appears  to  favour  the  one  according  to  which  a  new  limitation  period  starts  once  a 
competition authority or its review court has adopted a final infringement decision. 

The  option  according  to  which  the  limitation  period  would  simply  be  suspended 
appears  less  appropriate.  The  main  reason  is  that  the  opening  of  proceedings  by 
competition  authorities  is  rarely  known  by  the  public.  That  implies  that  potential 
claimants would have some difficulties to precisely calculate the period that remains 
once the competition authority has dealt with the case. Moreover, some competition 
authorities  do  not  formally  close  proceedings,  or  do  not  make  the  closing  of 
proceedings  publicly  known.  Consequently,  potential  claimants  would  not  know 
when  the  remaining  part  of  the  limitation  starts  running  again.  Finally,  another 

123 
124 

125 

Staff Working Paper paragraph 265 et seq. 
For  follow-on  cases,  the  Commission  suggests  a  new  limitation  period  of  at  least  two  years  (see 
paragraph 240 below). 
See also paragraph 231 above. 

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239. 

obstacle  could  emerge  in  cases  where  suspension  commences  at  a  very  late  stage 
when  the  limitation  period  has  almost  expired.  After  the  public  proceedings  are 
concluded there might not be enough time left to prepare the claim. 

A  better  option,  which  would  guarantee  that  antitrust  damages  claims  are  brought 
more  effectively  would  be  to  allow  a  new  limitation  period  to  start  following  the 
final  infringement  decision  of  a  competition  authority  or  its  review  court  on  which 
the claimant wants to rely in his antitrust damages action. The new limitation period 
would  thus  begin  to  run  on  the  day  that  the  appeal  period  against  an  infringement 
decision  of  a  competition  authority  has  elapsed  or  the  review  court  has  upheld  the 
decision or has itself found an infringement of Article 81 or 82 EC. In contrast to the 
problems mentioned in the previous paragraph regarding the opening and the closing 
of proceedings, infringement decisions of a competition authority or its review court 
are  public  documents.126  Potential  claimants  are  thus  able  to  know  when  the  new 
limitation period starts running. 

240. 

To enable claimants to bring their claim effectively, it seems appropriate that the new 
limitation  period  should  be  at  least  two  years.  This  would  ensure  that  potential 
claimants have enough time to prepare their claim. The new limitation period may be 
shorter than the limitation period for stand-alone actions. This apparent disadvantage 
would,  of  course,  be  offset  by  the  existence  of  an  infringement  decision,  on  which 
the claimant can rely in the context of his antitrust damages action. 

A  new  limitation  period  of  a  minimum  of  two  years  starts  to  run  once  the 
infringement  decision  on  which  the  claimant  relies  in  his  antitrust  damages 
action has become final. 

126 

Most ECN Members publish their infringement decisions, or a reference to them, on their website. For 
the Commission, see http://ec.europa.eu/comm/competition/index_en.html; the respective websites of 
the national competition authorities can be found at: 
http://ec.europa.eu/comm/competition/ecn/competition_authorities.html. According to Article 15(2) of 
Regulation 1/2003, Member States have to send the judgments of the review courts to the Commission. 
The judgments received can be found at 
http://ec.europa.eu/comm/competition/elojade/antitrust/nationalcourts/. 

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CHAPTER 9 — COSTS OF DAMAGES ACTIONS 

A. 

241. 

242. 

THE  OPTIONS  IN  THE  GREEN  PAPER  AND  THE  RESULTS  OF  THE  PUBLIC 
CONSULTATION 

The level of costs associated with the bringing of actions for damages, as well as cost 
recovery  rules,  can  play  an  important  role  as  a  disincentive  to  bringing  a  damage 
action.127  This  issue  of  costs  is  especially  relevant  in  competition-related  damage 
claims as they may be particularly costly and are generally more complex and time-
consuming  than  other  kinds  of  civil  action.  Two  kinds  of  risks  related  to  costs  of 
damages actions can be distinguished: the obligation for the claimant to pay certain 
fees upfront, which may discourage potential claimants if the fees are high; and the 
general application of the “loser pays” principle, pursuant to which the unsuccessful 
litigant has to bear the costs of the civil action.128 In addition to the complexity and 
length  of  competition-based  damage  actions,  the  outcome  of  these  cases  cannot 
always be assessed upfront. Due to the “loser pays” principle, this uncertainty makes 
it very difficult for a potential claimant to know whether he will have to pay all the 
costs or rather be in a position to recover his own costs. 

In  order  to  alleviate  the  financial  risk  of  litigation  for  those  who  bring  a  damages 
claim,  the  Green  Paper  put  forward  for  discussion  the  possibility  that  unsuccessful 
claimants  pay  the  costs  of  the  defendants  only  if  they  acted  in  a  manifestly 
unreasonable manner by bringing the case. This would be assessed by the court at the 
end  of  the  proceeding.  The  Green  Paper  also  put  forward  for  discussion  the 
possibility of giving national courts the discretionary power to order, at the outset of 
the trial, that the claimant is not to be exposed to any cost recovery even if the action 
were  to  be  unsuccessful,129  thereby  providing  claimants  with  upfront  certainty  as 
regards the risk of cost recovery. 

243.  Many  respondents  expressed 

that 

the  opinion 

the  current  national  rules, 
predominantly  the  “loser  pays”  principle,  constitute  a  good  safeguard  against 
unmeritorious  actions.  At  the  same  time,  it  was  widely  acknowledged  by  the 
respondents that, in relation to general risks of proceedings, the current national rules 
are  a  disincentive  to  potential  claimants.  Those  advocating  alleviation  of  the 
claimant’s financial risk predominantly favoured cost protection orders to allow the 
judge to decide whether there are sufficient reasons to deviate from the general cost 
rules. 

244. 

Although the Commission did not suggest any changes concerning lawyers’ fees in 
its  Green  Paper,  several  submissions  addressed  this  topic  in  connection  with  legal 
costs.  Most  of  the  respondents  supported  the  viewpoint  that  contingency  fees, 
whereby lawyers’ fees are calculated as a percentage of any successful claim, should 

127 

128 
129 

The notion of costs generally covers two different categories of costs: court costs and party costs. Court 
costs are defined as all costs generated by the court, such as court fees, fees for experts appointed by the 
court and expenses incurred by witnesses ordered by courts. Party costs are defined as all costs that are 
not court costs, in particular lawyers’ fees, experts appointed by the parties, parties’ expenses. 
2005 Staff Working Paper, page 57. 
See option 17 of the Green Paper. 

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not  be  encouraged.  Conversely,  some  see  the  absence  of  contingency  fees  as 
constituting an obstacle to antitrust-related damages claims.130 

MEASURES TO ENSURE EFFECTIVE ANTITRUST DAMAGES ACTIONS 

Taking into account the predominant views in the submissions on the Green Paper, 
the  Commission  does  not  suggest  any  specific  changes  to  national  cost  regimes  in 
favour  of  claimants.  However,  given  the  importance  of  the  issue  of  costs,  Member 
States are encouraged to reflect on their cost regimes so as to facilitate meritorious 
antitrust  litigation,  particularly  for  cases  brought  by  claimants  whose  financial 
situation is significantly weaker than that of the defendant, and/or in situations where 
costs  prevent  meritorious  claims  being  brought  due  to  the  uncertainty  of  the 
outcome.131 

Member  States are encouraged to reflect on their cost rules so as to facilitate 
meritorious litigation, taking into consideration existing practices. 

In  particular,  Member  States  should  consider  establishing  mechanisms  favouring 
settlements in actions for damages, and should reflect on their cost allocation rules, 
the level of court fees and the issue of funding. 

Encouraging settlements 

Early  resolution  of  competition  cases  may  allow  for  a  significant  reduction,  or 
elimination,  of  the  costs  that  the  victims  and  tortfeasors  would  have  normally 
incurred  in  court  proceedings,  in  particular  lawyers’  fees  and  experts’  fees.  By 
reducing  the  number  of  (potentially  lengthy)  cases  pending  before  the  courts,  early 
resolution is also beneficial to the judicial system.132 

The  efficiency  of  settlement  mechanisms  is  directly  related  to  the  efficiency  of  the 
through  normal  court  actions.  Settlement 
mechanisms  for  seeking  redress 
mechanisms  cannot  alone  guarantee  the  effectiveness  of  the  victims’  right  to 
damages following a breach of EC competition rules, in the absence of a viable and 
credible judicial alternative. Potential defendants will only be willing to settle if their 
chances of losing in court are credible and if the risk associated with such loss is not 
negligible.  Similarly,  the  terms  of  a  settlement  will  be  more  satisfactory  to  the 

It can be noted that, concerning success fees, Advocate General Poiares Maduro stated in his opinion in 
the Cipolla case that the possibility of fixing “success fees” for lawyers’ services might improve access 
to the courts by enabling parties who have no financial resources to have access to the courts with the 
risk  being  borne  by  the  lawyers.  See  opinion  of  the  Advocate  General  of  1  February  2006  in  Joined 
Cases C-94/04 and C-202/04 Cipolla [2006] ECR I-11421 paragraph 94. 
It should be noted that in The Hague Programme of November 2004, the European Council underlined 
that further efforts should be made to facilitate access to justice. It emphasised that the effectiveness of 
existing  instruments  on  mutual  recognition  should  be  increased,  by  standardising  procedures  and 
documents as well as by developing minimum standards for aspects of procedural law, in particular the 
transparency of costs. 
With  regard  to  alternative  dispute  resolution,  see  the  2004  proposal  for  a  Directive  of  the  European 
Parliament  and  of  the  Council  on  certain  aspects  of  mediation  in  civil  and  commercial  matters, 
COM(2004)  718  Final.  See  also  the  Green  Paper  on  alternative  dispute  resolution  in  civil  and 
commercial law adopted on 19 April 2002, COM(2002) 196 final. 

B. 

245. 

246. 

1. 

247. 

248. 

130 

131 

132 

EN 

75 

   EN 

                                                 
249. 

250. 

alleged victims if their chances of winning in court are credible, and the amount of 
damages they may eventually obtain adequate. 

In a context where potential claimants would not face the same obstacles as they do 
today, and where victims would have a realistic chance of obtaining compensation in 
court,  the  latter  would  be  in  a  much  better  situation  to  enter  into  settlement 
discussions with the tortfeasors. In such a context, settlements should be encouraged. 
Settlements  can  occur  at  various  stages.  They  can  occur  before  a  proceeding  is 
initiated,  thereby  avoiding  all  litigation  costs.  They  can  also  occur  in  the  course  of 
legal proceedings (e.g. after the establishment of the infringement), thereby avoiding 
the additional costs (e.g. quantifying the damage) that the normal continuation of the 
litigation process would have implied. 

As to the way settlements negotiations are conducted, there are a certain number of 
available mechanisms. In many Member States there is a possibility of solving a civil 
dispute  without  the  need  for  conventional  litigation,  through  a  structured  form  of 
conciliation, for example by using a trained mediator.133 In some instances, in-court 
settlements can be encouraged by the court itself. For example, pursuant to the rules 
applicable  to  the  proceedings  of  the  European  Court  of  Human  Rights,134  the 
registrar of the court, acting on instructions of the chamber or its president, is to enter 
into  contact  with  the  parties  with  a  view  to  securing  a  friendly  settlement  of  the 
matter,  in  a  confidential  proceeding.  The  court  is  to  take  any  steps  that  appear 
appropriate  to  facilitate  such  a  settlement.  Member  States  may  also  consider  that 
settlements negotiations should be a compulsory step before the victim can pursue a 
claim for damages in court. 

251. 

Given  the  costs  inherent  to  actions  for  damages  in  competition  cases,  the 
Commission considers that structured and efficient settlement mechanisms should be 
made available in the Member States to the parties to such proceedings. 

Member  States  are  encouraged  to  design  procedural  rules  fostering 
settlements,  as  a  way  to  mitigate  costs  of  actions  for  damages  following  a 
breach of EC competition rules. 

2. 

a. 

252. 

The allocation of court costs and party costs 

The application of the “loser pays” principle 

All Member States have rules governing the allocation of costs in civil proceedings, 
which aim to determine which party will bear the costs. The rule generally applicable 
in  the  Member  States  is  the  “loser  pays”  principle,  even  though  the  rule  is  often 
moderated (e.g. most of the recovery rules limit to some degree the amount of fees 
which can be recovered for the work of a lawyer), and applied differently in practice 
in the Member States. 

253.  Whilst cost rules should be such that claimants with a strong damages case are less 
hesitant to start an action, unmeritorious claimants should not be encouraged. In that 

133 
134 

See the 2004 Study, pp. 1 to 133. 
See  Articles  38  and  39  of  the  Convention  for  the  Protection  of  Human  Rights  and  Fundamental 
Freedoms, and its rule of proceedings No 62. 

EN 

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regard,  the  “loser  pays”  principle  acts  as  a  strong  deterrent  to  the  bringing  of 
unmeritorious  litigation.  Indeed,  one  effect  of  the  “loser  pays”  principle  is  to 
encourage  case  selection by  potential claimants. Potential claimants will  usually be 
more reluctant to pursue unmeritorious claims. However, it may also happen that the 
“loser  pays”  principle  discourages,  under  certain  circumstances,  victims  with 
meritorious  claims  when  they  are  risk-adverse  and  are  not  willing  to  even  take  the 
(small)  risk  of  having  to  pay  the  defendants’  (potentially  high)  costs  in  case  of 
failure. 

254. 

Recent EC legislative instruments have adopted the “loser pays” principle. This is the 
case,  in  particular,  in  the  Regulation  establishing  a  European  small  claims 
procedure,135  Article  16  of  which  states  that  the  unsuccessful  party  is  to  bear  the 
costs, except where the costs were unnecessarily incurred or are disproportionate to 
the  claim.  Similarly,  according  to  Article  14  of  Directive  2004/48/EC  on  the 
enforcement of intellectual property rights: 

b. 

255. 

256. 

“Member States shall ensure that reasonable and proportionate legal costs and other 
expenses  incurred  by  the  successful  party  shall,  as  a  general  rule,  be  borne  by  the 
unsuccessful party, unless equity does not allow this.”136 

Court discretion as regards the allocation of costs 

The option mentioned in the Green Paper to make the cost recovery dependent on a 
court  order,  and  to  give  the  court  the  power  to  grant  protection  from  cost  recovery 
even if the claimant is not successful, already exists in several Member States. Such 
a possibility could attenuate the possibility that risk-adverse victims are discouraged, 
under  certain  circumstances,  from  bringing  a  meritorious  action  given  the  risk  of 
having to pay the defendants’  costs in case of failure when the “loser pays” rule is 
applicable. At the same time, in order not to incentivise unmeritorious claims, such 
orders should be subject to certain conditions. In the Member States, the reasons for 
granting such orders may be of different kinds. 

In Finland, derogation from the “loser pays” principle exists in cases that are legally 
ambiguous  enough  for  the  unsuccessful  party  to  have  a  justified  reason  to  litigate. 
The court can order the interested parties to pay a part or all of their own legal costs. 
In  addition,  the  law  contains  exceptions  for  situations  where  a  party  pursued 
unjustified litigation or unjustified claims. Similarly, in Italy, as an exception to the 
“loser pays” principle, the court may decide that each party bears its own costs in the 
event  the  legal  issues  are  complex  and  unusual,  that  there  are  conflicting  court 
precedents  in  respect  of  those  issues  or  whenever  the  judge  deems  that  any  other 
“justified reason” exists for each party to bear its own legal costs. 

257. 

In  the  UK,  in  determining  what  costs  order  should  be  issued,  the  courts  have  wide 
discretion  to  consider  all  the  circumstances  of  the  case,  including  the  behaviour  of 
the parties and the way they have conducted the case (e.g. whether it was reasonable 
for  a  party  to  defend  a  particular  allegation  or  issue  in  the  proceedings).  Likewise, 
the  Competition  Appeal  Tribunal  (CAT)  may  at  its  discretion  at  any  stage  of  the 

135 

136 

Regulation (EC) 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a 
European Small Claims Procedure, OJ 2007 L 199/1. 
Directive 2004/48/EC on the enforcement of intellectual property rights (footnote 46 above). 

EN 

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258. 

proceedings — including upfront — make any order it deems appropriate in relation 
to the payment of costs by one party to another. In France, the courts also enjoy wide 
discretion when deciding whether to derogate from the “loser pays” principle. 

National  courts  may  also  take  into  account  the  financial  situation  of  the  parties.  In 
Germany the costs to be paid — being court fees, lawyers’ fees and other additional 
costs — are generally calculated with reference to the value of the claim. However, 
beyond this general rule, the German Act against restraints of competition allows for 
certain  adjustments  to  the  value  of  the  claim  in  antitrust  cases.  In  order  to  benefit 
from  such  an  adjustment,  or  limitation,  the  party  concerned  (either  the  claimant  or 
the defendant) has to assert credibly that the burden of the costs of the proceedings 
based  on  the  normal  value  of  the  claim  would  significantly  endanger  his  economic 
situation. The legal consequence of the adjustment is that the party benefiting from it, 
if  unsuccessful,  only  has  to  pay  the  costs  calculated  on  the  basis  of  the  adjusted 
amount of the value of the claim, and not on the basis of the normal value. Where the 
party benefiting from an adjustment is successful, his lawyer is nevertheless entitled 
to recover his fees calculated on the basis of the normal (not adjusted) value of the 
claim. 

259. 

Finally, considerations of fairness, reasonableness or equity may also be a basis for 
alleviation  of  the  normal  cost  rule.  As  was  explained  above,  Directive  2004/48/EC 
on  the  enforcement  of  intellectual  property  rights  states  that  the  unsuccessful  party 
bears  the  costs  of  the  proceedings,  unless  equity  does  not  allow  this.  Similarly, 
according to the rules of procedure of the ECJ, the Court may deviate from the “loser 
pays”  principle  in  exceptional  circumstances,  or  may  order  a  party,  even  if 
successful, to pay costs which the Court considers that party to have unreasonably or 
vexatiously caused the opposite party to incur.137 

260.  With respect to timing, it is usually at the end of the procedure that courts decide on 
which party bears the costs of the action. However, it is worthwhile considering to 
what  extent  a  decision  on  costs  could  be  taken  before  the  very  end  of  the 
proceedings. Indeed, increased certainty upfront in the proceedings would reduce the 
financial risk for the claimants of pursuing a claim where the “loser pays” principle 
is  applicable.  Upfront  certainty  as  regards  cost  allocation  would  also  allow  the 
claimant  not  being  granted  such  a  cost  order  to  withdraw  his  claim  should  he 
consider  the  risk  of  litigating  too  high.  Such  a  court  order  on  costs  upfront  in  the 
proceedings  could,  for  example,  limit  the  types  of  costs  that  would  be  recoverable 
from the unsuccessful party, or cap the recoverable amount. In order to avoid a party 
partially protected upfront against cost recovery abusively investing in litigation, the 
court order could be made conditional upon the behaviour of the parties until the end 
of the proceedings. 

261. 

In view of these national practices, Member States should be encouraged to provide 
national  courts  with  the  possibility  to  issue  cost  orders  derogating  from  the  normal 
cost rule. These orders could, for example, guarantee that a claimant, if unsuccessful, 
does  not  have  to  bear  the  defendants’  costs  that  were  unreasonably  or  vexatiously 
incurred, or are otherwise excessive. Member States may also consider other possible 
grounds for such cost orders. These cost orders should preferably be issued upfront 

137 

Article 69 of the Rules of Procedure of the Court of Justice. 

EN 

78 

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3. 

262. 

263. 

in  the  proceeding  and  could  be  made  conditional  upon  the  conduct  of  the  claimant 
during the proceedings.  

Member States are encouraged to provide national courts with the possibility 
to issue cost orders derogating from the normal cost rule, preferably upfront in 
the proceeding. 

Such cost orders would guarantee that a claimant, even if unsuccessful, will not 
have to bear all costs incurred by the other party. 

Legal provisions regarding determination of court fees 

In order to alleviate the obstacle that court fees may represent for potential claimants, 
interesting  measures  can  be  observed  in  the  Member  States.  In  particular,  the 
exemption  of  certain  categories  of  claimants  from  having  to  pay  court  fees  can 
further facilitate private damages actions. In this regard, Romanian law provides for 
an  exemption  from  court  fees  for  representative  actions  brought  by  consumer 
associations  against  undertakings  that  infringed  the  law  or  violated  legitimate 
interests of consumers. Similarly, in the Spanish system, individuals and companies 
with a turnover below 6 million euros are exempt from court fees. 

In  most  Member  States  court  fees  are  required  to  be  paid  upfront  and  the  level  of 
court fees is generally expressed either as a fixed sum or as a percentage of the value 
of the claim. In the majority of Member States, fees are calculated as a percentage of 
the value of the claim and these percentages vary considerably between the different 
Member States.  Although the  percentage level in most Member States is low — in 
some only 2% — it can reach up to 6% in other Member States. The level of court 
fees can in some instances constitute a strong disincentive in antitrust cases given the 
uncertainty  in  outcome  (reliance  on  complex  economic  data),  and  the  fact  that  the 
claims may often be of high value. 

Member States are encouraged to set their court fees in an appropriate manner 
so that they do not constitute a disincentive for antitrust damages claims. 

4. 

Funding of antitrust damages actions 

264. 

265. 

The provision of financial assistance to those who are unable to bear the full costs of 
legal proceedings is essential to enable victims to enforce their rights. 

In  certain  cases,  victims  may  benefit  from  national  legal  aid  mechanisms,  even 
though  their  scope  is  often  limited  either  to  certain  categories  of  claimants 
(individuals,  or  undertakings  in  cases  not  concerning  their  commercial  or 
professional  activity)  or  to  certain  types  of  litigation.138  In  other  Member  States 
however,139 legal aid can be granted with regard to any type of litigation and to both 
natural and legal persons if they prove that they do not have sufficient means to meet 
the costs. 

138 

139 

Some  form  of  legal  aid  is  available  in  all  Member  States  since  the  adoption  of  Directive  2003/8/EC 
establishing minimum common rules relating to legal aid, OJ 2003 L 26/41. 
For example, Germany, Poland, Portugal. 

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266. 

267. 

Irrespective  of  the  specificities  of  the  legal  cost  regimes  mentioned  above,  other 
mechanisms  for  alleviating  the  burden  of  bearing  the  costs  have  been  developed. 
These  mechanisms  may  also  have  the  effect  of  mitigating  expenses  and  therefore 
help reduce the obstacles related to the funding of private actions. 

The  possibility  for  victims  to  have  their  legal  expenses  covered  by  an  insurance 
company could further facilitate antitrust-related damages claims. In the majority of 
Member  States  legal  aid  insurance  (either  public  or  private)  is  available,  but  is  not 
widely used regarding competition law infringements. The possibility of a third party 
funding  litigation  is  also  known  in  Europe.  There,  third  parties  provide  funds  to 
claimants  to  cover  all,  or  a  proportion  of,  the  costs  of  an  action.  In  return,  such 
investors are guaranteed a share of the winnings if the claimant is successful. Other 
forms of litigation funding may emerge in the future should more victims decide to 
seek redress in courts. 

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CHAPTER 10 — INTERACTION BETWEEN LENIENCY PROGRAMMES AND 

ACTIONS FOR DAMAGES 

A. 

THE  OPTIONS  IN  THE  GREEN  PAPER  AND  THE  RESULTS  OF  THE  PUBLIC 
CONSULTATION 

268.  With  its  Green  Paper,  the  Commission  aimed  at  identifying  possible  measures  that 
would  preserve  the  attractiveness  of  leniency  programmes  in  the  context  of  an 
enhanced level of damages claims in Europe, since these programmes are critical to 
the  uncovering  of  cartels  and  therefore  essential  to  the  development  of  follow-on 
private  actions  for  damages.  The  Commission  also  aimed  at  determining  whether 
other measures could be tailored in order to improve the interaction between leniency 
programmes and an effective system of actions for damages. 

269. 

270. 

1. 

271. 

272. 

The issue of interaction of leniency programmes with actions for damages met with 
broad  interest  during  the  public  consultation.  A  large  number  and  a  variety  of 
respondents expressed a view on this issue. 

In its Green Paper, the Commission invited comments on three different options: (a) 
the exclusion of the discoverability of the leniency application, (b) the possibility to 
grant  the  successful  leniency  applicant  a  conditional  rebate  on  any  damages  claim, 
and (c) the removal of joint liability for the successful leniency applicant.140 

Consensus  on  the  necessity  to  protect  leniency  programmes  and  exclude 
discoverability of leniency applications 

The issue of the interaction between leniency programmes and actions for damages is 
only relevant for a certain type of damages claims, i.e. actions brought in relation to 
those infringements that are covered by leniency programmes, namely secret cartels 
affecting the Community.141 

The question was raised in the Green Paper whether leniency applications should be 
protected  against  discovery.142  If  leniency  applications  were  to  be  available  to 
claimants  in  follow-on  actions,  the  proof  of  the  claim  would  be  facilitated  for  the 
claimant, and this would contribute to the objective of rendering the victims’ right to 
damages more effective. However, such a disclosure would reduce the attractiveness 
of  leniency  programmes,  and  therefore  their  efficiency:  it  could  deter  potential 
leniency  applicants  from  asking  for  leniency  in  the  first  place,  or  affect  the  quality 
and comprehensiveness of leniency submissions. 

140 

141 

142 

“Leniency applicants” cover both applicants for immunity from fines and applicants for a reduction of 
fines. 
Cartels  are  agreements  and/or  concerted  practices  between  two  or  more  competitors  aimed  at 
coordinating  their  competitive  behaviour  on  the  market  and/or  influencing  the  relevant  parameters  of 
competition  through  practices  such  as  the  fixing  of  purchase  or  selling  prices  or  other  trading 
conditions,  the  allocation  of  production  or  sales  quotas,  the  sharing  of  markets  including  bid-rigging, 
restrictions  of  imports  or  exports  and/or  anti-competitive  actions  against  other  competitors.  Such 
practices  are  among  the  most  serious  violations  of  Article  81  EC.  See  for  instance  the  Commission 
Notice on immunity from fines and reduction of fines in cartel cases, hereinafter the “Leniency Notice”, 
OJ 2004 C 298/17, point 1. 
See option 28 of the Green Paper. 

EN 

81 

   EN 

                                                 
273. 

2. 

274. 

275. 

276. 

277. 

The  need  to  protect  leniency  programmes  is  widely  recognised  by  the  respondents 
which, apart from a very few exceptions, support precluding  disclosure of leniency 
applications or the central parts thereof, and often consider this to be essential. A few 
submissions consider, however, that leniency applications should be made available 
in  private  actions  since  they  contain  critical  evidence,  while  some  doubt  whether 
such protection is at all needed, in particular since leniency applications can be made 
orally. Comments were also received on what should be covered by the protection. 
This issue is further analysed below. 

Diverging opinions on whether to grant a conditional rebate on damage claims to 
successful leniency applicants 
The  objective  pursued  by  granting  a  conditional  rebate  on  damage  claims143  to 
successful leniency applicants144 is to reward them in the private proceeding for their 
cooperation in the public proceeding, by awarding them a conditional rebate on any 
damages  claim.  This  rebate  option  as  set  out  in  the  Green  Paper  would  be  made 
conditional upon provision of evidence to claimants in follow-on damages claims. 

Some  submissions  gave  arguments  in  favour  of  such  an  option,  in  particular  since 
this would increase the attractiveness of leniency programmes. Of these submissions, 
some  respondents  underlined  that  while  it  is  appropriate  to  guarantee  the  efficient 
functioning of leniency programmes, this should not be at the expense of the injured 
parties.  Indeed,  many  respondents  stressed  the  importance  of  the  principle  of  full 
compensation  for  the  harm  suffered  by  the  victims.  In  a  situation  where  double 
damages  became  available,  the  respondents  usually  agreed  that  the  successful 
leniency  applicant  could  benefit  from  a  rebate  in  the  form  of  a  de-doubling  of  the 
amount  of  damages,  since  this  would  not  prevent  full  compensation.  Some 
submissions also underlined the necessity to limit such award only to the successful 
immunity  applicant,  given  his  contribution  in  the  uncovering  of  the  cartel,  as 
opposed to leniency applicants only benefiting from a reduction in fine. 

Such rebate would increase the gap between the situation of the successful leniency 
applicant  (benefiting  from  a  reduction  of,  or  immunity  from,  fine  as  well  as  a 
reduction  of  civil  liability)  and  the  situation  of  non-collaborating  firms  (having  to 
face  the  fine  plus,  possibly,  an  increased  civil  liability).  In  addition,  it  would 
facilitate damages claims by providing claimants with significant evidence. Finally, 
the risk of incomplete compensation for the victims due to the existence of the rebate 
would be limited since the victims could subsequently claim their entire loss against 
the other members of the cartel. 

However, some submissions  opposed, as a matter of principle, a situation  in which 
successful leniency applicants could be rewarded on the civil side as a result of their 
application by facing a reduced liability, arguing that public enforcement and private 
proceedings should be independent from each other. Some respondents also argued 
that it would be unfair to reward a member of a cartel in civil proceedings, even if he 
had applied for leniency. 

143 
144 

See option 29 of the Green Paper. 
An applicant for leniency (immunity or reduction of fines) is considered successful only after the final 
decision of the competition authority. 

EN 

82 

   EN 

                                                 
278. 

279. 

3. 

280. 

281. 

Compliance with the principle of full compensation of the victims, the importance of 
which  was  recalled  by  a  number  of  submissions,  would  imply  that  any  rebate 
awarded in a damage claim be paid by the other members of the cartel,145 jointly and 
severally  liable  for  the  entire  damage.  Some  respondents  have  underlined  that  any 
such  increase  in  liability  would  be  unfair  and  discriminatory.  In  addition,  a  risk  of 
incomplete  compensation  of  the  victims  cannot  be  excluded  in  the  exceptional 
situation where all the co-cartelists, excluding the successful leniency applicant, are 
insolvent.  The  rebate  system  would  also  limit  the  victim’s  choice  as  to  the 
identity/number of co-cartelists from which he could recover his whole damage. 

Taking  account  of  the  arguments  expressed,  at  this  stage  it  would  not  appear 
appropriate  to  retain  this  option  as  long  as  it  has  not  been  demonstrated  that  an 
enhanced level of actions for damages would unduly affect leniency programmes and 
that such a strong reward should be given to leniency applicants as regards their civil 
liability. However, if leniency programmes were to be unduly affected, or should the 
balance in the approach be modified, further incentives, such as the rebate granted to 
the leniency applicant, may need to be considered. 

Support for the removal of joint liability for the successful leniency applicant 
The Commission has also put forward for discussion an option146 which provides for 
the removal of joint liability from the successful leniency applicant, thus limiting the 
latter’s exposure to damages. The  removal of joint liability aims not at  granting an 
additional  financial  reward  to  the  successful  leniency  applicant,  but  only  at 
guaranteeing  that  his  liability  would  be  strictly  limited  to  a  certain  share  in  the 
damage  caused.  The  removal  of  the  joint  liability  would  not  be  made  conditional 
upon  the  cooperation  of  the  successful  leniency  applicant  with  the  victims  on  the 
civil side. 

Generally,  under  the  rules  of  civil  liability  applicable  to  antitrust  damages  actions, 
undertakings which are parties to anti-competitive agreements are liable for the entire 
damage  caused  by  these  agreements.  The  co-infringers  are  jointly  and  severally 
liable for the damage caused by their actions. This means, for example, that a victim 
having  suffered  harm  due  to  an  illicit  agreement  may  claim  his  entire  damage  not 
only  against  his  trading  partner(s),  but  also  against  any  of  the  other  parties  to  the 
illicit  agreement.  However,  between  the  co-infringers,  the  liability  is  several.  This 
implies that the infringer who compensated the entire harm then has a right to seek 
contribution from the other co-infringers. It is therefore at the contribution stage that 
the respective share of ultimate liability of each co-infringer is determined.147 

282. 

Removing the joint liability of the successful leniency applicant was meant to pursue 
a  two-fold  objective.  It  was,  firstly,  to  give  the  successful  leniency  applicant  a 
procedural  advantage,  by  avoiding  that  he  has  to  seek  contribution  from  the  other 
tortfeasors  (his  ultimate  liability  would  no  longer  be  determined  only  at  the 
contribution  stage).  Secondly,  it  was  to  give  him  an  advantage  in  cases  of  (partial) 
insolvency  of  one  or  some  of  the  cartel  member(s),  since  the  successful  leniency 

145 
146 
147 

In the absence of double damages. 
See option 30 of the Green Paper. 
In  contrast,  in  antitrust  cases  in  the  United  States,  there  is  no  such  right  for  an  infringer  to  seek 
contribution  from  the  other  co-infringers.  For  a  recent  discussion  of  the  current  system  in  the  United 
States, see the recommendations of the Antitrust Modernization Commission. 

EN 

83 

   EN 

                                                 
applicant would be the only cartel member not having to bear an increased financial 
burden as opposed to the other solvent cartelists which are jointly and severally liable 
for the entire damage. 

283. 

The  objective  pursued  by  this  option  received  support  from  various  respondents. 
However,  some  concerns  were  expressed  on  the  effectiveness  of  the  measure  to 
achieve the objective, as well as on the criteria to be used for determining the scope 
of  the  liability  of  the  successful  leniency  applicant.  Some  respondents  also 
underlined  that  the  benefit  of  the  removal  of  joint  liability  should  be  limited  to  the 
successful  immunity  applicant,  as  opposed  to  leniency  applicants  in  general.  Some 
submissions  finally  stressed  that  incentives  given  to  successful  leniency  applicants 
should not be granted at the expense of the victims. 

284. 

In  line  with  the  results  of  the  public  consultation,  it  is  considered  appropriate  to 
further  explore  the  possibility  of  limiting  the  civil  liability  of  the  successful 
immunity applicant, as analysed below. 

B. 

MEASURES REGARDING THE INTERACTION BETWEEN LENIENCY PROGRAMMES AND 
ACTIONS FOR DAMAGES 

285. 

The Commission recalls that according to its 2006 Leniency Notice: 

“The fact that immunity or reduction in respect of fines is granted cannot protect an 
undertaking from the civil law consequences of its participation in an infringement of 
Article 81 EC.”148 

Given  the  inevitable  interaction  between  an  increased  level  of  damages  claims  and 
the operation of an efficient leniency programme, it appears appropriate to maintain 
the attractiveness of leniency programmes in Europe, on the one hand, by ensuring 
an  adequate  level  of  protection  of  leniency  applications  in  a  future  context  of  an 
enhanced level of actions for damages, and, on the other hand, to further reflect on 
the possibility to further incentivise potential immunity applicants. 

Exclusion  of  discoverability  of  corporate  statements  submitted  by  applicants  for 
immunity and reduction of fines 
Excluding  the  discoverability149  of  leniency  applications  would  avoid  a  situation  in 
which  a  leniency  applicant  is  placed  in  a  less  favourable  situation  than  the  other 
infringers  due  to  the  fact  that  he  applied  for  leniency.  However,  an  application  for 
leniency should not unduly protect an undertaking from the civil law consequences 
of  its  participation  in  an  infringement  of  Article  81  EC.  The  boundaries  of  this 
protection are defined below. 

The  protection  granted  should  apply  to  applications  for  leniency  submitted 
under the EC and national leniency programmes 

The measure aims to maintain the efficiency of leniency programmes in a foreseen 
context  of  increased  damages  claims  based  on  EC  competition  rules,  with  the 

Leniency Notice, point 39. 
In this Chapter, the terms “discovery”, “discoverability” and “disclosure” are used indistinctly and do 
not refer to any legal regime of specific jurisdictions. 

286. 

1. 

287. 

a. 

288. 

148 
149 

EN 

84 

   EN 

                                                 
289. 

290. 

291. 

292. 

293. 

ultimate objective to guarantee effective enforcement of Article 81 EC. Any possible 
measure  designed  to  ensure  the  effectiveness  of  public  enforcement  of  EC  rights 
should  also  be  applicable  at  national  level  since  EC  antitrust  rules  are  notably 
enforced both through EC and national leniency programmes. 

Therefore, the measure analysed in this section should not only apply when leniency 
is sought from the Commission pursuant to the EC Leniency Notice. It should cover 
all  leniency  applications  related  to  an  infringement  of  Article  81  EC,  regardless  of 
which competition authority within the ECN received the leniency application. The 
protection should also apply in cases where Article 81 EC is applied in parallel with 
national competition law. 

Possible arguments in favour of limiting the rule to the applications submitted under 
the  EC  leniency  programme  ultimately  do  not  prevail.  This  would  mean,  as  is  the 
case  today,  that  the  protection  granted  to  leniency  applications  would  differ 
depending on the NCA in charge of the case, even though the same Treaty Article is 
at stake. Ensuring consistency in application of the same Treaty Article (Article 81 
EC) by different authorities is important. Indeed, it has to be borne in mind that the 
rules  are  enforced  in  a  system  of  parallel  competences  where  several  competition 
authorities  have  the  competence  to  deal  with  a  given  case  and  where  simultaneous 
leniency applications in various Member States may sometimes be advisable.150 Such 
consistency would also limit “forum shopping”. 

Similarly, the extension of the rule to national leniency applications would increase 
legal  certainty  and  the  efficiency  of  the  system.  Within  the  ECN,  leniency 
applications  may  be  transmitted  from  one  competition  authority  to  another.151  In 
particular,  leniency  applicants  would  be  more  willing  to  give  their  consent  to  the 
transmission  of  their  application  by  an  NCA  to  another  NCA  if  they  knew  that  the 
protection  granted  by  the  receiving  NCA  is  similar  to  the  one  ensured  by  the 
transmitting authority.152 

Finally,  the  extension  of  the  rule  to  national  leniency  applications  would  also  be 
coherent  with  the  current  trend  within  the  ECN  towards  soft  harmonisation  of  the 
existing leniency  programmes.  Indeed,  the  ECN members have  committed  to  using 
their  best  efforts,  within  the  limits  of  their  competence,  to  align  their  respective 
programmes with the ECN Model Programme.153 

It  appears  therefore  appropriate  that  any  such  protection  of  leniency  applications 
applies  not  only  to  the  applications  submitted  under  the  Commission’s  leniency 
programme  but  also  to  those  submitted  under  national  leniency  programmes  when 
EC competition law is applicable. 

The  protection  granted  to  leniency  applications  should  apply  to  applications 
submitted  under  the  EC  and  under  national  leniency  programmes  when  the 

150 

151 

152 
153 

See in particular Commission Notice on cooperation within the Network of Competition Authorities, OJ 
2004 C 101/03, point 38, hereinafter the “ECN Notice”. 
Such transmission is, however, subject to the conditions set out in points 40 and 41 of the Commission 
ECN Notice. 
See in particular the Commission ECN Notice, points 40 and 41. 
See ECN Model Leniency Programme at 
http://ec.europa.eu/comm/competition/ecn/model_leniency_en.pdf. 

EN 

85 

   EN 

                                                 
enforcement  of  Article  81  EC  is  at  stake,  including  in  cases  of  parallel 
application of national competition law. 

b. 

The protection against disclosure granted to corporate statements 

294. 

295. 

296. 

(i) The scope of the protection 

As  explained in  the Commission’s Green Paper, the threat of discoverability of the 
confession  submitted  by  the  leniency  applicant  to  a  competition  authority  is 
considerable.  The  prospect  of  his  application  being  made  available  to  private 
claimants  can  have  a  negative  impact  on  the  quality  and  the  comprehensiveness  of 
his application for leniency, or even dissuade an infringer from applying for leniency 
in the first place. 

The  protection  of  leniency  applications  against  disclosure  should  be  applied  to  all 
those voluntary presentations, by or on behalf of an undertaking to the competition 
authority, of the undertaking’s knowledge of a cartel and its role therein, which are 
drawn up specially for submission under the Leniency Notice (hereinafter “corporate 
statements”).154 

This  protection  should  be  awarded  to  such  corporate  statements  of  all  the  leniency 
applicants,  i.e.  both  applicants  for  immunity  and  for  reduction  of  fines.  First,  the 
threat  of  disclosure  of  their  confession  is  as  acute  for  immunity  applicants  as  for 
applicants for a reduction of fines. Also, when making their confession, undertakings 
do  not  necessarily  know  whether  they  will  qualify  for  immunity  or  only  for  a 
reduction of fines. It is only at the end of the administrative procedure that immunity 
(or  reduction  of  fines)  is  granted.  Extending  the  protection  to  the  corporate 
statements  made  by  all  leniency  applicants  for  immunity  and  reduction  of  fines 
therefore improves the legal certainty for potential applicants. 

297. 

Corporate  statements  should  remain  protected  even  where  the  application  for 
leniency is rejected by the competition authority or does not lead to any decision on 
the  infringement.  Such  a  solution  removes  the  risk  of  uncertainty  for  potential 
leniency applicants which could have a certain deterrent effect against applying for 
leniency. 

298. 

It has to be noted that the common practice of the Commission, partly developed in 
response  to  other  jurisdictions’  wide-ranging  discovery  rules,  is  to  take  corporate 
statements orally, and not to provide the applicant with a copy of his statements. 

Corporate  statements  submitted  by  applicants  for  immunity  and  for  a 
reduction of fines should be protected against disclosure. 

(ii)  No  disclosure  by  the  competition  authorities  of  corporate  statements  neither 
before nor after the adoption of a decision 

299. 

The Commission itself will never disclose to parties in private actions for damages 
any  corporate  statements  it  receives  in  the  context  of  its  Leniency  Notice.  The 
Commission  considers  that  public  disclosure  under  Regulation  1049/2001  of 

154 

See in more detail points 6 and 31 of the Leniency Notice. 

EN 

86 

   EN 

                                                 
corporate  statements  submitted  by  leniency  applicants  would  undermine  certain 
public and private interests, for example the protection of the purpose of inspections 
and investigations, within the meaning of Article 4 of that Regulation,155 even after a 
decision has been taken.156 In addition, the absence of disclosure is justified by the 
need to safeguard the interests of the Community, and to avoid any interference with 
its  functioning,  in  particular  by  jeopardising  the  accomplishment  of  the  tasks 
entrusted to it. For the same reasons, the Commission will not transmit the corporate 
statements  it  receives  to  national  courts  in  the  framework  of  the  Commission’s 
cooperation  duties,157  neither  before  nor  after  the  adoption  of  the  Commission’s 
decision. 

300. 

As the Commission’s statements of objections and decisions may to a great extent be 
based  on  information  provided  by  the  leniency  applicants,  it  is  necessary  that  all 
undertakings  subject  to  the  investigation  in  the  public  proceeding  have  access  to 
corporate statements in order to be able to exercise their right of defence. However, 
when  accessing  the  file,  such  undertakings  are  not  provided  with  a  copy  of  the 
corporate  statements,  and  the  use  these  undertakings  can  make  of  the  information 
obtained  through  access  to  the  file  is  limited.  According  to  Article  15(4)  of 
Regulation (EC) 773/2004,158 this information can only be used for the purposes of 
judicial or administrative proceedings for the application of Article 81 and 82 EC. 

The  Commission’s  consistent  policy  is  not  to  disclose  corporate  statements  to 
national courts neither before nor after a decision is taken. 

301. 

302. 

(iii) No disclosure of the corporate statements by leniency applicants for immunity or 
reduction of fines 

The  voluntary  disclosure  or  reproduction  of  corporate  statements  by  leniency 
applicants, e.g. in the context of settlement negotiations, can have detrimental effects 
on the competition authorities’ investigations. In order to protect these investigations, 
it  is  therefore  of  great  importance  to  preclude  disclosure  from  the  date  of  the 
application at least until the issuance of a statement of objections. 

It  is  also  important  to  protect  leniency  applicants  against  court  orders  requesting 
disclosure  or  the  reproduction  of  their  corporate  statements  before  or  after  the 
issuance  of  a  statement  of  objections,  and  even  after  a  decision  is  taken  by  the 
competition authority. Indeed, such protection of leniency applicants is necessary to 
safeguard the interests of the Community in having an efficient leniency programme. 
If corporate statements were to be made available, there would be a risk that potential 
leniency applicants refrain from giving extensive details on the infringement in their 
application,  thereby  affecting  the  effectiveness  of  leniency  programmes  and  public 
enforcement. 

155 
156 

157 

158 

OJ 2001 L 145/43. See also point 40 of the Leniency Notice. 
It  should  also  be  noted  that  the  protection  of  private  interests  in  claiming  damages  is  clearly  not  the 
objective of Regulation 1049/2001 (footnote 50 above). 
Commission  Notice  on  the  cooperation  between  the  Commission  and  the  courts  of  the  EU  Member 
States in the application of Articles 81 and 82 OJ 2004 C 101/54, point 26. 
Regulation (EC) 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission 
pursuant to Articles 81 and 82 of the EC Treaty, OJ 2004 L 123/18. 

EN 

87 

   EN 

                                                 
2. 

303. 

304. 

305. 

Voluntary  disclosure  or  reproduction  of  corporate  statements  by  leniency 
applicants for immunity or reduction of fines should be precluded at least until 
the issuance of a statement of objections. 

Leniency  applicants  should  be  protected  against  court  orders  requesting 
disclosure  or  reproduction  of  the  corporate  statements  both  before  and  after 
the adoption of the decision by the competition authority. 

Limiting the scope of the civil liability of the successful immunity applicant 

In the absence of leniency applications, many serious competition law infringements 
would not be uncovered and the victims would not receive compensation. Given the 
importance of leniency programmes, an increased level of antitrust damages actions 
should  not  result  in  leniency  applicants  finding  themselves  in  a  less  favourable 
situation than other infringers. However, as it is at this stage not demonstrated that 
leniency programmes would in the future be unduly affected by an enhanced level of 
actions  for  damages,  additional  incentives  granted  to  leniency  applicants,  if  any, 
should  be  limited.  It  is  therefore  suggested  that  any  such  incentive  be  limited, 
possibly to the successful immunity applicant only (the “immunity recipient”). 

If any measure concerning the immunity recipient was to be proposed at a later stage, 
it results from the consultation that the option put forward for discussion in the Green 
Paper (i.e. the removal of the joint liability) may not be sufficient to effectively limit 
the immunity recipient’s liability to a certain share of the harm caused. The argument 
was indeed raised that an undertaking colluding with other undertakings is generally 
liable for all the consequences of that collusion, irrespective of the notion of joint and 
several  liability.  On  this  basis,  the  White  Paper  no  longer  discusses  this  option  but 
sets out, for further reflection, a slightly different mechanism that would pursue the 
same  objective,  namely  a  limitation  on  the  scope  of  the  immunity  recipient’s  civil 
liability.159 

This  mechanism  suggested  for  further  comments  would  imply  that  the  immunity 
recipient remains liable on the civil side in relation to the infringement for which he 
was granted immunity, but only towards his direct and indirect contractual partners. 
As  a  result,  the  only  persons  entitled  to  receive  compensation  from  the  immunity 
recipient would be the victims who directly bought the cartelised products or services 
from the immunity recipient (i.e. direct contractual partners), or those further down 
the  supply  chain  who  bought  these  products  or  services  (directly  or  through 
intermediaries) from the direct contractual partners (i.e. indirect contractual partners). 
The immunity recipient would then not be held liable for the damage suffered by a 
victim  that  did  not  directly  or  indirectly  purchase  cartelised  products  from  him  nor 
for  the  harm  caused  by  products  or  services  bought  from  another  cartelist.160  The 

159 

160 

For  the  reasons  set  out  in  section  1.a  above,  the  liability  limitation  suggested  for  further  reflection 
would  be  equally  applicable  to  the  situations  where  immunity  is  granted  on  the  basis  of  the 
Commission’s leniency programme or on the basis of a national leniency programme in a case where 
EC  competition  law  is  applicable.  The  measure  would  be  limited  to  the  infringement  for  which 
immunity is granted. 
For  instance,  where  30%  of  a  victim’s  total  purchases  of  cartelised  products  originate  from  the 
immunity recipient, the latter would only be liable for 30% of the total harm suffered by this victim due 
to the overcharge of the cartelised products. 

EN 

88 

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burden of proving the extent to which his liability is limited would have to be borne 
by the immunity recipient. 

306. 

At  this  stage,  it  seems  appropriate  to  further  reflect  on  the  need  for  such  incentive 
granted to the immunity recipient. Moreover, as it should be ensured that the victims’ 
right  to  full  compensation  is  not  unduly  affected,  and  that  the  other  cartelists’ 
liability is not unduly increased, further consideration should be given to the impacts 
of  such  measure  on  the  position  of  victims  of  cartels  and  that  of  co-infringers,  in 
particular other leniency applicants. 

Further  reflection  should  be  given  to  a  possible  limitation  of  the  immunity 
recipient’s civil liability to his direct and indirect contractual partners. 

EN 

89 

   EN 

CHAPTER 11 — CONCLUSIONS 

A. 

307. 

MEASURES TO ENSURE THE EFFECTIVENESS OF ANTITRUST DAMAGES ACTIONS 

The  Green  Paper  on  damages  actions  for  breach  of  the  EC  antitrust  rules,  the 
subsequent  public  consultation  and  the  wide  debate  amongst  stakeholders  have 
shown the need for measures to ensure, more than it is the case today, that all victims 
of EC competition law infringements have access to effective redress mechanisms in 
order to be fully compensated for the harm they suffered. The White Paper and this 
Staff Working Paper make a number of concrete suggestions on how to achieve this 
objective. 

1. 

The acquis communautaire 

308. 

309. 

Before  coming  to  these  suggestions,  it  is  important  to  recall  the  existing  acquis 
communautaire  that  is  relevant  for  antitrust  damages  claims.  An  overview  of  that 
acquis can be found in the box below paragraph 310. Particular attention should be 
given to two key building blocks of this acquis. There is first of all the establishment 
under Community law of a right to compensation that is available to all individuals 
who  suffered  a  harm  caused  by  an  infringement  of  the  EC  competition  rules.  The 
availability of this European law remedy can as such not be refuted or conditioned by 
national legislation of any kind. 

As  long  as  there  is  no  Community  law  on  the  matter,  national  legislation  will 
continue  to  determine  how  individuals  can  exercise  the  right  to  compensation  they 
derive  directly  from  Community  law.  But  Member  States  do  not  enjoy  absolute 
liberty  when  laying  down  and  applying  the  rules  that  govern  EC  antitrust  damages 
actions. This is where the second key element of the acquis communautaire becomes 
relevant:  the  said  national  rules  cannot  be  less  favourable  than  those  governing 
similar domestic actions (principle of equivalence), nor can they render the exercise 
of  these  Community  law  rights  practically  impossible  or  excessively  difficult 
(principle  of  effectiveness).  To  the  extent  that  national  rules  are  incompatible  with 
any of these two principles, national courts are required not to apply those rules. 

310. 

As indicated, the following box gives a more general overview of the relevant acquis 
communautaire: 

Acquis communautaire 

On standing: 

•  Any individual can claim compensation for the harm suffered where there is 
a causal relationship between that harm and an infringement of Article 81 or 
82 EC. This principle also applies to indirect purchasers. 

On access to evidence: 

• 

In actions for EC antitrust damages, Member States must apply all domestic 
rules  and  principles  on  the  facilitation  of  bringing  evidence  available  in 
order to ensure that victims of EC antitrust infringements can exercise their 

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right to compensation effectively. 

•  Member States must apply such rules and principles to the same extent as in 

similar cases based on the infringement of national law. 

•  Domestic  rules  that  make  the  exercise  of  the  right  to  compensation 
excessively  difficult  must  not  be  applied  to  cases  of  damages  for  the 
infringement of EC antitrust rules. 

On the binding effect of Commission decisions: 

•  National  courts  cannot  take  decisions  ruling  on  agreements,  decisions  or 
practices  under  Article  81  or  Article  82  EC  that  run  counter  to  a  decision 
adopted by the Commission on the same agreements, decisions or practices. 

•  Commission  decisions  finding  an  infringement  of  Article  81  or  82  EC 
therefore  constitute  a  sufficient  legal  proof  of  this  infringement  by  the 
addressee(s)  of  the  decision  in  subsequent  actions  for  damages  before 
national courts. 

•  This effect of a Commission decision can only be removed by a judgment of 

the Community courts under Article 230 or 234 EC. 

On the definition and calculation of damages: 

•  Victims  of  an  EC  competition  law  infringement  are  entitled  to  full 
compensation of the harm caused. That means compensation for actual loss 
(damnum  emergens)  and  for  loss  of  profit  (lucrum  cessans),  plus  interest 
from the time the damage occurred until the capital sum awarded is actually 
paid. 

•  Victims  of  an  EC  competition  law  infringement  are  entitled  to  particular 
damages, such as exemplary or punitive damages, if and to the extent such 
damages  may  be  awarded  pursuant  to  actions  founded  on  the  infringement 
of national competition law. 

•  In the absence of Community law on the matter, Member States are allowed 
to take steps to ensure that the protection of the right to claim damages for 
the loss caused by a competition law infringement does not entail the unjust 
enrichment of the victims. 

•  The  principle  of  full  compensation  implies  that  Member  States  may  not  a 
priori  fix  any  form  of  upper  limit  on  the  amount  of  compensation  that  the 
victim of a competition law infringement could effectively recover. 

On limitation periods: 

•  A  limitation  period  cannot  be  such  that  it  renders  the  right  to  seek 
compensation  practically  impossible  or  excessively  difficult.  Such  is  the 
case  for  short  limitation  periods  that  begin  to  run  from  the  moment  the 
infringement started and which cannot be suspended. 

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2. 

Measures to ensure effective antitrust damages actions 

311. 

the  existing  acquis  communautaire,  victims  of  competition 

Despite 
law 
infringements still face significant difficulties when looking for effective redress. In 
order  to  allow  these  victims  to  obtain  more  effective  redress  in  the  future,  the 
Commission  considers  it  necessary  to  make  suggestions  that  go  beyond  a  mere 
clarification  of  the  current  acquis.  The  following  box  gives  an  overview  of  the 
suggestions made per section of the Staff Working Paper. It goes without saying that 
this  list  is  non-exhaustive.  Some  Member  States  have  adopted,  are  considering  or 
may  consider  adopting  other  measures  than  those  listed  below  to  ensure  effective 
redress  for  victims  of  competition  law  infringements.  The  Commission  encourages 
Member States to continuously improve their domestic legal framework for antitrust 
damages actions and to build on each others experiences. 

Commission suggestions 

On standing: 

•  Victims of competition law infringements should be able to bring an opt-in 
collective action for damages or to be represented in a representative action 
for damages brought by qualified entities. 

•  Qualified  entities,  able  to  act  on  behalf  of  identified  or,  in  rather  restricted 
cases, identifiable victims, should include (i) entities designated in advance 
by  the  Member  States  according  to  national  procedures,  representing 
legitimate  and  defined  interests;  and  (ii)  other  existing  entities  whose 
primary  task  would  be  to  protect  the  defined  interests  of  their  members, 
other than by pursuing damages claims, which would be certified on an ad 
hoc  basis  in  relation  to  a  particular  infringement  according  to  national 
procedures. 

On access to evidence inter partes: 

•  As  a  minimum  standard  of  disclosure  in  actions  for  antitrust  damages, 
national  courts  should  under  specific  conditions  have  the  power  to  order 
disclosure  inter  partes  of  precise  categories  of  information  or  evidence 
relevant to the claim. 

•  Conditions  for  a  disclosure  order  in  actions  for  antitrust  damages  should 
include that (a) the claimant has asserted all the facts and offered all those 
means of evidence that are reasonably known and available to him, provided 
that  they  show  plausible  grounds  to  suspect  that  he  suffered  harm  through 
the infringement of competition rules by the defendant; (b) he has shown to 
the  satisfaction  of  the  court  that  he  is  unable,  applying  all  efforts  that  can 
reasonably  be  expected,  to  assert  the  specific  facts  or  to  produce  the 
evidence for which disclosure is envisaged; (c) he has specified sufficiently 
precise  categories  of  information  or  evidence  to  be  disclosed,  and  (d)  the 
court is satisfied that the envisaged disclosure measure is relevant to the case 
as well as necessary and proportional in scope. 

•  Disclosure  orders  can  cover  all  types  of  evidence  under  the  control  of  the 

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opponent  or  third  persons.  Adequate  protection  should  be  given  to 
confidential  information  as  well  as  to  corporate  statements  of  leniency 
applicants and the investigations of competition authorities. 

•  Except for cases of particular urgency, the addressees of a disclosure order 

would have the right to be heard. 

•  Where  a  party  refuses  to  disclose  evidence  pursuant  to  a  court  order  or 
destroys  evidence,  any  court  hearing  a  claim  for  damages  should  have  the 
power  to  impose  effective,  i.e.  sufficiently  deterrent  sanctions  on  the 
individual  or  the  undertaking  concerned.  Courts  should  be  provided  with  a 
range of such sanctions to choose from, which should include the possibility 
to draw adverse inferences from the refusal or destruction in the civil action 
for damages. 

On the binding effect of NCA decisions: 

•  When national courts in actions for damages rule on agreements, decisions 
or practices under Article 81 or Article 82 EC which are already the subject 
of  a  final  decision  by  an  NCA  within  the  ECN  finding  an  infringement  of 
Article 81 or Article 82 EC, or are the subject of a final ruling by a review 
court  upholding  the  NCA  decision  or  itself  finding  an  infringement,  they 
cannot take decisions running counter to such a decision or ruling. 

•  This obligation is without prejudice to the right, and possibly obligation, of 
national courts to seek clarification on the interpretation of Article 81 or 82 
EC under Article 234 EC. 

•  Consideration could be given to allowing an exception to the binding effect 
of NCA decisions from other Member States analogous to the public order 
exception contained in Article 34 n°1 of Regulation 44/2001, with a view to 
safeguarding a defendant’s rights of defence, as recognised by the European 
Convention on Human Rights and the EU Charter on Fundamental Rights. 

On fault: 

•  Whilst  the  general  notions  of  fault  in  the  Member  States  should  remain 
unaffected,  the  Commission  suggests  that  more  legal  certainty  be  provided 
in terms of which level of fault requirements under national law hamper the 
effective  exercise  of  the  right  to  reparation  and  thereby  the  effet  utile  of 
Article 81 or 82 EC. 

•  The effectiveness of actions for antitrust damages does not require changes 
of  the  legal  regime  in  those  Member  States  where,  once  a  breach  of  EC 
antitrust law has been established, no elements of fault have to be proven or 
fault is irrebuttably presumed in civil proceedings for antitrust damages. 

• 

In the other Member States, once a claimant has proven an infringement of 
EC antitrust law, the infringer should be liable for damages unless he shows 
that  the  infringement  was  the  result  of  a  genuinely  excusable  error.  Errors 
should  be  excusable  only  where  the  infringer,  despite  applying  a  high 
standard  of  care,  could  not  reasonably  have  been  aware  that  his  conduct 

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restricted competition. 

On the definition and calculation of damages: 

•  The acquis communautaire on the definition of damages should be codified 

as a minimum standard. 

•  The Commission intends to issue non-binding guidance on the calculation of 
damages.  As  part  of  such  guidance,  the  Commission  will  consider 
suggesting  simplified  rules  for  estimating  the  loss  suffered  as  a  result  of  a 
competition law infringement. 

•  The  damages  awarded  in  an  opt-in  collective  action  or  a  representative 
action for damages should correspond to the harm suffered by those included 
or represented in the action. 

On the passing-on of overcharges: 

•  The defendant in an antitrust damages case should be entitled to rely on the 
passing-on  defence  against  a  claim  for  compensation  of  the  overcharge, 
brought by a claimant who is not a final consumer. 

•  The burden of proving the passing-on of overcharge would have to lie with 
the defendant. The standard of proof for the passing-on should not be lower 
than the standard to which the claimant has to prove the damage. 

•  An  indirect  purchaser  would  be  able  to  rely  on  the  rebuttable  presumption 
that the illegal overcharge was passed on in its entirety down to his level. 

• 

In  case  of  joint,  parallel  or  consecutive  actions  brought  by  purchasers  at 
different  levels  in  the  distribution  chain,  national  courts  are  encouraged  to 
use whatever mechanism under national or Community law at their disposal 
in  order  to  avoid  under-  or  over-compensation  of  the  harm  caused  by  a 
competition law infringement. 

On limitation periods: 

• 

In  case  of  a  continuous  or  repeated  infringement,  the  limitation  period 
should not start to run before the day on which the infringement ceases. 

•  The  limitation  period  should  not  start  to  run  before  the  victim  of  the 
infringement  can  reasonably  be  expected  to  have  knowledge  of  the 
infringement and of the harm it caused him. 

•  A  new  limitation  period  of  a  minimum  of  two  years  starts  to  run  once  the 
infringement decision on which the claimant relies in his antitrust damages 
action has become final. 

On the costs of proceedings: 

•  Member States are encouraged to reflect on their cost rules so as to facilitate 

meritorious litigation, taking into consideration existing practices. 

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•  Member  States  are  encouraged  to  design  procedural  rules  fostering 
settlements,  as  a  way  to  mitigate  costs  of  actions  for  damages  following  a 
breach of EC competition rules. 

•  Member States are encouraged to provide national courts with the possibility 
to issue cost orders derogating from the normal cost rule, preferably upfront 
in the proceeding. Such cost orders would guarantee that a claimant, even if 
unsuccessful, will not have to bear all costs incurred by the other party. 

•  Member  States  are  encouraged  to  set  their  court  fees  in  an  appropriate 
manner  so  that  they  do  not  constitute  a  disincentive  for  antitrust  damages 
claims. 

On the interaction with leniency programmes: 

•  The protection granted to leniency applications should apply to applications 
submitted under the EC and under national leniency programmes when the 
enforcement  of  Article  81  EC  is  at  stake,  including  in  cases  of  parallel 
application of national competition law. 

•  Corporate  statements  submitted  by  applicants  for  immunity  and  for  a 

reduction of fines should be protected against disclosure. 

•  The Commission’s consistent policy is not to disclose corporate statements 

to national courts neither before nor after a decision is taken. 

•  Voluntary  disclosure  or  reproduction  of  corporate  statements  by  leniency 
applicants  for  immunity  of  reduction  of  fines  should  be  precluded  at  least 
until the issuance of a statement of objections. 

•  Leniency  applicants  should  be  protected  against  court  orders  requesting 
disclosure or reproduction of the corporate statements both before and after 
the adoption of the decision by the competition authority. 

•  Further  reflection  should  be  given  to  a  possible  limitation  of  the  immunity 

recipient’s civil liability to his direct and indirect contractual partners. 

312. 

The  Commission  acknowledges  that  some  of  the  problems  identified  in  the  Green 
Paper also occur in other areas of civil/tort litigation and that some of the suggestions 
of the White Paper might thus also be appropriate beyond the boundaries of antitrust 
damages  actions.  Where  there  is  a  need,  a  technical  feasibility  and  a  clear  political 
will  to  adopt  measures  with  a  more  horizontal  scope,  that  route  should  therefore 
seriously be considered. However, the similarities between redress for victims of an 
antitrust infringement and other civil/tort litigation cannot in themselves constitute a 
sufficient  reason  to  abstain  from  considering  or  even  taking  measures  aimed 
specifically at ensuring the effective exercise of rights which victims of competition 
law infringements derive directly from Community law. Moreover, civil litigation in 
the field of competition touches upon a particular public interest and offers a number 

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313. 

314. 

315. 

B. 

1. 

316. 

of specific aspects which — taken together — mean that the bringing of an action is 
unusually difficult. 

Articles 81 and 82 EC are indeed a matter of public policy and are thus fundamental 
provisions of the Treaty designed to protect competition in the single market.161
 In its 
Courage and Manfredi judgments the Court of Justice clarified 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  Court  also 
emphasised  that  actions  for  damages  before  the  national  courts  can  make  a 
significant contribution to the maintenance of effective competition in Europe.162
 The 
right  of  victims  of  a  competition  law  infringement  to  bring  an  action  for  damages 
must thus be seen as being also in the public interest. Guaranteeing that right should 
therefore be considered of the utmost importance. 

Compared  to  most  other  types  of  civil  litigation,  competition  litigation  is  also 
characterised by the particular complexity of the analysis and the wide scope of the 
evidential  burden  that  a  potential  litigant  is  facing.  To  establish  an  infringement  of 
the  competition  rules,  it  is  generally  necessary  to  define  the  relevant  market  and 
prove that the conduct complained of negatively affects prices, output or innovation 
on that relevant market. Also, quantification of damages may be particularly difficult 
since the claimant will have to bring evidence of what his situation would have been 
in  the  absence  of  the  infringement.  This  implies,  amongst  other  aspects,  that  the 
claimant  will  have  to  show  what  in  such  ‘but  for’-scenario  would  have  been  the 
quantity he would have bought at which (competitive) price. These difficulties will 
often require access to evidence describing the commercial activities of the defendant 
and other actual and potential players on the market and a complex analysis requiring 
the gathering of a substantial number of facts. 

Finally,  the  evidential  burden  on  the  potential  litigant  is  not  only  particularly  high, 
the  information  required  to  successfully  bring  a  damages  case  is  also  unevenly 
distributed:  as  proof  of  the  defendant’s  market  position  and  his  trading  practices  is 
commonly  required,  there  is  a  marked  asymmetry  between  the  —  potential  — 
claimant  and  the  defendant  who  is  accused  of  engaging  in  anti-competitive 
behaviour. It is precisely this information inequality that needs to be addressed if one 
wants to ensure effective redress for victims of competition law infringements. 

INSTRUMENTS TO ENSURE THE EFFECTIVENESS OF ANTITRUST DAMAGES ACTIONS 

The need for a Community instrument underpinning national measures 

As mentioned in point 312 above, the suggestions listed in the White Paper should 
not be read as limiting the kind of measures that could be taken in order to ensure the 
effective  exercise  of  the  right  of  victims  of  competition  law  infringements  to  be 
compensated for the harm suffered. The list of suggestions should rather be regarded 
as  what  the  Commission  considers  to  be  the  minimum  necessary  to  achieve  that 
objective. 

161 

162 

Case C-126/97 Eco Swiss [1999] ECR I-3055 paragraph 36 and Manfredi (footnote 8 above) paragraph 
31. 
Courage v Crehan (footnote 8 above) paragraph 27 and Manfredi (footnote 8 above) paragraph 91. 

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317.  While  some  Member  States  may  well  take  the  initiative  of  adopting  measures  in 
some  areas  highlighted,  it  remains  appropriate  to  consider  incorporating  some  of 
these suggestions into a Community instrument. Indeed, it is only by laying down the 
fundamental  principles  of  antitrust  damages  litigation  in  a  Community  instrument 
that  one can guarantee  basic equality of treatment  of  victims  of an EC  competition 
law  infringement,  independent  of  where  a  damages  case  is  brought  and  which 
national  law  is  applicable.163  Moreover,  the  more  convergence  there  is  between 
national rules, the more levelled the playing field for antitrust damages actions and 
the  lower  the  need  for  claimants  to  shop  around  looking  for  the  most  appropriate 
forum to bring a damages case. 

318. 

It is clear that these objectives, which contribute to the effective enforcement of the 
EC competition rules, cannot be sufficiently achieved through Member States’ action 
alone.  A  Community  instrument  setting  out  what  is  required  to  ensure  the 
effectiveness  of  antitrust  damages  actions  may  therefore  be  warranted.  Such  an 
instrument  would  also  serve  as  a  point  of  reference  for  Member  States  to  adopt 
appropriate measures. 

2. 

The appropriate Community instruments 

319.  When  it  comes  to  the  choice  of  the  appropriate  instrument  for  further  Community 
action, certain of the issues mentioned in the White Paper may require Community 
legislative  action.164  Although  soft-law  approaches,  such  as  guidelines  or 
recommendations,  may  assist  Member  States  in  increasing  the  effectiveness  of  the 
exercise  of  the  right  to  antitrust  damages,  there  is  no  guarantee  that  all  Member 
States will achieve that objective. Since the Commission considers the suggestions in 
the White Paper to be the basic framework for an effective antirust damages regime, 
Community legislation would appear to be the best possibility to make sure that such 
a framework is established in all Member States. 

320. 

A European legal framework would have a number of advantages: 

•  It  would  first  of  all  give  businesses  and  consumers  who  are  victims  of  a 
competition  law  infringement  a  clear  picture  of  their  basic  rights  under 
Community  law.  The  fact  that  they  know  their  rights  would,  in  itself,  already 
constitute a very significant step towards more effective redress. 

•  Second,  it  is  important  for  Member  States’  authorities  to  know  which  minimum 
standard of protection they have to ensure of rights that individuals derive directly 
from Community law. This should guarantee that national legislatures and judges 
can  adopt  or  apply  national  legislation  that  renders  the  exercise  of  the  right  to 
damages effective and, conversely, do not adopt or apply national legislation that 

163 

164 

The  jurisdictional  rules  are  laid  down  in  Council  Regulation  44/2001  (footnote  14  above).  For  the 
applicable law in antitrust damages cases, see Article 6(3) of Regulation 864/2007 (“Rome II”, footnote 
12 above). 
The  competence  of  the  Community  to  adopt  legislative  measures  aimed  at  making  antitrust  damages 
actions  more  effective  has  indirectly  been  confirmed  by  the  Court  of  Justice.  See  Courage  v  Crehan 
(footnote  8  above)  paragraph  29  and  Manfredi  (footnote  8  above)  paragraph  62:  “in  the  absence  of 
Community rules governing the matter, it is for the domestic legal system of each Member State (…) to 
prescribe the detailed procedural rules governing (…) actions [for damages based on an infringement of 
the EC competition rules]” (emphasis added). 

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runs  counter  to  the  acquis  communautaire.  By  enhancing  transparency  on  the 
acquis  through  European  legislation,  one  also  increases  the  likelihood  for 
individuals  to  be  compensated  for  harm  caused  by  a  breach  of  the  acquis  by  a 
Member State’s authority.165 

•  Third,  a  basic  European  legal  framework  would  enhance  both  awareness  and 
deterrence.  It  may  thus  already  in  itself  constitute  an  additional  incentive  for 
undertakings  to  respect  the  EC  competition  rules.  Those  effects  are  multiplied 
when national legislation is adopted in line with a European legislative provision, 
when a national judge applies those rules and when victims of a competition law 
infringement rely on them to seek compensation for the harm they suffered. 

•  Finally, a European legal framework would contribute to a European level playing 
field for both claimants and defendants, thereby contributing to the objectives of 
the European single market. Individuals who find themselves in the same situation 
can expect the same basic treatment throughout Europe. 

321.  Moreover, some of the suggestions addressed in the White Paper fill a gap in national 
law  or  may  even  deviate  from  existing  national  legislation.  It  is  clear  that  none  of 
these could be achieved through soft law: it is only through Community legislation 
that one could reach a suitable level of legal certainty. Depending on the degree to 
which  a  level  playing  field  in  Europe  is  required  to  ensure  the  effectiveness  of 
antitrust  damages  actions,  a  choice  will  have  to  be  made  between  the  available 
instruments for Community legislative action. While some of the issues enumerated 
below could thus be the subject of an EC regulation, others may be more suited for 
an EC directive. 

322. 

In addition to  the  codification  of  the  key aspects of the acquis communautaire, the 
Commission  believes  that  some  aspects  of  the  following  issues  may  require  EC 
legislative action to ensure the effectiveness of antitrust damages actions: 

•  the availability of collective and representative actions; 

•  the inter partes disclosure; 

•  the binding effect of NCA decisions; 

•  the fault requirement; 

•  the passing-on defence; 

•  the limitation period; 

•  the protection of leniency applications from disclosure; 

•  the removal of the joint liability for the immunity recipient. 

Other  aspects  of  these  issues  and  the  remaining  suggestions,  in  particular  those 
concerning the calculation of damages and the rules concerning court and party costs 
of damages actions, can at this stage adequately be dealt with via soft-law instruments. 

165 

For  more  details  on  the  Member  States’  liability  for  the  infringement  of  EC  law,  see  for  example 
Brasserie du Pêcheur (footnote 78 above). 

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