Commission staff working document - Executive summary of the impact assessment - White paper on damages actions for breach of the EC antitrust rules {COM(2008) 165 final} {SEC(2008) 404} {SEC(2008) 405}
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) 406  

COMMISSION STAFF WORKING DOCUMENT 

EXECUTIVE SUMMARY OF 
THE IMPACT ASSESSMENT 

WHITE PAPER on 

Damages actions for breach of the EC antitrust rules 

{COM(2008) 165 final} 
{SEC(2008) 404} 
{SEC(2008) 405} 

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EXECUTIVE SUMMARY 

1. 

2. 

3. 

4. 

5. 

The key issue addressed in the White Paper on damages actions for breach of the EC 
antitrust rules is the current lack of an effective legal framework for private actions 
seeking compensation for the damage caused to citizens and businesses as a result of 
infringements  of  EC  competition  law.  While  public  enforcement  by  competition 
authorities punishes breaches of competition law, compensation of victims can only 
be obtained via national courts, in accordance with national procedural rules.  

Although the Court of Justice confirmed back in 2001 that victims of infringements 
of EC competition law are entitled to compensation for any harm they suffer, these 
victims rarely obtain damages. In its 2005 Green Paper, the Commission concluded 
that this failure is largely due to the obstructive nature of the Member States’ rules 
and  procedures  governing  antitrust  damages  actions.  In  order  to  create  a  legal 
framework  that  allows  more  effective  redress,  the  Commission  considers  it 
appropriate  to  recommend,  via  a  White  Paper,  a  number  of  minimum  rules  that 
would guarantee an effective system of antitrust damages actions. 

This report presents five coherent bundles of the most likely policy choices to attain 
that  objective.  The  policy  option  at  one  end  of  the  spectrum  envisages  legislative 
measures  providing  for  maximum  facilitation  and  incentives  for  damages  claims, 
while the option at the other end envisages no action at all at EU level. 

The impact  of the policy  options is assessed in terms of the following benefits and 
costs. Policy options score higher the more they (1) ensure full compensation of the 
entire  harm  suffered,  (2)  lead  to  increased  awareness  and  enforcement  of  the 
competition rules, (3) allow better access to justice and (4) more efficient use of the 
judicial system and, finally, (5) contribute to a more level playing field in Europe for 
consumers and businesses alike. On the cost side, the report shows the impact of the 
different policy options on (1) litigation costs, (2) the administrative burden, (3) error 
costs  and  (4)  the  cost  of  implementing  the  suggested  measure  in  the  national  legal 
system.  Finally,  on  a  more  general  level,  the  report  also  assesses  the  likely  macro-
economic  impact  and  the  impact  on  SMEs  and  consumers  of  the  different  policy 
options. 

After assessing the costs and benefits of the five policy options, the report finds that 
Policy  Option  2  is  the  most  effective  way  to  meet  the  objectives  identified  at  the 
lowest possible cost. However, a combination of Policy Options 2, 3 and 4 would be 
even  more  cost-effective,  as  it  would  allow  a  further  reduction  of  the  costs,  while 
maintaining  the  bulk  of  the  benefits.  The  report  concludes  by  analysing  the  overall 
cost/benefit impact of this Preferred Policy Option. 

6. 

The main features of the Preferred Policy Option are: 

•  any individual (both direct and indirect purchasers) can claim compensation for 
the  harm  suffered,  where  there  is  a  causal  link  between  that  harm  and  the 
infringement of the competition rules; 

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•  victims of infringements of competition law are entitled to full compensation of 
the damage suffered. That includes compensation of the actual loss, loss of profit 
and interest; 

•  upon request by one of the parties, the national court can order the other party (or 
third parties) to disclose specified categories of information that could be used 
in  evidence.  The  disclosure  order  has  to  be  proportionate  to  the  objective  of  the 
claim.  Corporate  statements  (confessions  made  in  the  context  of  a  leniency 
programme), however, cannot be disclosed; 

•  in  cases  where  the  direct  purchaser  (partially)  passed  on  the  damage  resulting 
from  the  infringement  (the  overcharge)  to  his  own  customers  (the  indirect 
purchasers),  the  defendant  can  invoke  that  passing-on  as  a  defence  against  a 
claim  brought  by  the  direct  purchaser.  Conversely,  in  order  to  facilitate  claims 
brought by indirect purchasers, proving that the overcharge was passed on to their 
level is facilitated; 

•  national  courts  dealing  with  antitrust  damages  claims  cannot  go  against  any 
finding  by  a  Member  States’  competition  authority  confirming  an 
infringement of the competition rules; 

•  in Member States that have no strict liability system, fault is presumed as soon 
as the infringement has been established. In the event of an excusable error, the 
defendant can be exonerated, however; 

•  victims  of  an  infringement  of  competition  law  may  have  recourse  to  collective 
redress mechanisms. Damages actions can be brought by representative entities 
or by opting in to a collective action; 

•  antitrust damages actions can be brought within five years from the moment 
that  the  victim  can  reasonably  be  considered  to  have  knowledge  of  the 
infringement and the harm it caused. If a competition authority is dealing with that 
infringement,  victims  can  bring  a  damages  claim  up  to  two  years  after  a  final 
decision is taken by that authority; 

•  the possibility for national courts to shift all or part of the costs to the winning 
defendant  should  be  considered  on  the  basis  of  existing  best  practices  in  the 
Member States; 

•  in  order  to  protect  the  leniency  programmes  of  the  European  competition 
authorities,  immunity  recipients  should  be  liable  only  for  the  damage  they 
have caused, not for the total harm caused by the infringement. 

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