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

COMMISSION STAFF WORKING DOCUMENT 
Accompanying document to the  
WHITE PAPER on Damages actions for breach of the EC antitrust rules 

IMPACT ASSESSMENT 

{COM(2008) 165 final} 
{SEC(2008) 404} 
{SEC(2008) 406} 

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TABLE OF CONTENTS 

1. 

1.1. 

1.2. 

Procedural issues and consultation of interested parties .............................................. 5 

Background, Commission departments involved and chronology .............................. 5 

Consultation and expertise sought ............................................................................... 6 

1.2.1.  Review of the status quo for actions for damages in Europe....................................... 6 

1.2.2. 

Identification of various possible options to improve compensation of victims of 
infringements of competition law ................................................................................ 6 

1.2.3.  Opinions of institutional stakeholders.......................................................................... 6 

1.2.4.  Other consultations....................................................................................................... 7 

1.2.5.  Study analysing potential impact ................................................................................. 8 

1.3. 

Inter-service consultations ........................................................................................... 8 

1.3.1. 

Informal consultations within the European Commission ........................................... 8 

1.3.2.  Formal Inter-Service Consultation............................................................................... 9 

1.4. 

1.5. 

2. 

2.1. 

2.2. 

2.3. 

2.4. 

3. 

3.1. 

3.2. 

4. 

The Impact Assessment Board..................................................................................... 9 

Legal context of the proposed initiative....................................................................... 9 

Problem to be addressed − the “WHY” ..................................................................... 11 

The current legal framework for competition damages actions is ineffective: major 
difficulties for victims to obtain compensation.......................................................... 11 

The scope and scale of the problem ........................................................................... 13 

Causes and drivers...................................................................................................... 16 

Need for EU action in view of the likely evolution of the problem........................... 20 

Objectives − the “WHAT” ......................................................................................... 22 

General objective ....................................................................................................... 22 

Specific objectives ..................................................................................................... 23 

Policy options − the “HOW” ..................................................................................... 26 

4.1. 

Identifying the policy options to be assessed............................................................. 26 

4.1.1.  Method for identifying and grouping the individual measures into bundles to form 

Policy Options............................................................................................................ 26 

4.1.2. 

Individual measures not included in the Policy Options analysed............................. 27 

4.1.3.  Measures regarding interaction with public enforcement.......................................... 28 

4.1.4.  Provision of non-binding assistance for quantification of damages .......................... 28 

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4.2. 

Description of the Policy Options assessed ............................................................... 28 

4.2.1.  Policy Option 1: legislative measures maximising facilitation of claims and 

incentives for victims ................................................................................................. 29 

4.2.2.  Policy Option 2: substantial facilitation and partial incentives for damages claims by 
means of legislative measures.................................................................................... 30 

4.2.3.  Policy Option 3: moderate facilitation by means of more limited legislative measures
.................................................................................................................................... 31 

4.2.4.  Policy Option 4: moderate facilitation by means of non-regulatory measures.......... 32 

4.2.5.  Policy Option 5: zero action at EU level (baseline option)........................................ 32 

5. 

Analysis of impact...................................................................................................... 34 

5.1. 

Assessment criteria..................................................................................................... 34 

5.1.1.  Benefits ...................................................................................................................... 34 

a. 

b. 

c. 

d. 

e. 

Ensuring full compensation of the entire harm suffered............................................ 34 

Increased awareness, enforcement, deterrence and legal certainty .......................... 34 

Access to justice ......................................................................................................... 35 

Efficient use of the judicial system ............................................................................. 36 

A more level playing field .......................................................................................... 36 

5.1.2.  Costs........................................................................................................................... 36 

a. 

b. 

c. 

d. 

Litigation costs ........................................................................................................... 36 

Administrative burden................................................................................................ 37 

Error costs.................................................................................................................. 37 

Implementation costs.................................................................................................. 37 

5.1.3.  Other impacts ............................................................................................................. 37 

5.2. 

Identifying and assessing the impact of each Policy Option...................................... 38 

5.2.1.  Policy Option 1 .......................................................................................................... 38 

5.2.2.  Policy Option 2 .......................................................................................................... 41 

5.2.3.  Policy Option 3 .......................................................................................................... 43 

5.2.4.  Policy Option 4 .......................................................................................................... 46 

5.2.5.  Policy Option 5 .......................................................................................................... 48 

5.3. 

5.4. 

6. 

Likely costs for public authorities and businesses under the Policy Options ............ 50 

Other impacts, in particular likely implications for the EU budget ........................... 51 

Comparing the options ............................................................................................... 52 

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6.1. 

The Preferred Option.................................................................................................. 52 

6.1.1. 

Interim results of the impact analysis......................................................................... 52 

6.1.2. 

Identification of the Preferred Option ........................................................................ 55 

6.1.3. 

Impact of the Preferred Option .................................................................................. 58 

6.2. 

6.3. 

Summary comparison of Policy Options ................................................................... 61 

Proportionality and EU added value of the Preferred Option .................................... 62 

6.3.1.  Proportionality............................................................................................................ 62 

6.3.2.  European added value ................................................................................................ 62 

7. 

Monitoring and evaluation ......................................................................................... 65 

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1. 

PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES 

1.1. 

Background, Commission departments involved and chronology 

1. 

2. 

3. 

4. 

5. 

The key issue addressed in the White Paper 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.  

The Directorate-General for Competition is the lead service on the White Paper. The 
other  departments involved  are:  DG Enterprise,  DG Justice, Freedom and Security, 
DG Internal Market, DG Health and Consumer Affairs, DG Economic and Financial 
Affairs,  the  Legal  Service,  the  Secretariat-General  and  the  Bureau  of  European 
Policy Advisers. The White Paper on damages actions for breach of the EC antitrust 
rules is listed in the Commission Legislative and Work Programme for 2007.1 

A study on the conditions under which private parties can bring actions for damages 
before  the  courts  of  the  Member  States  for  breach  of  the  EC  antitrust  rules  was 
undertaken  by  the  law  firm  Ashurst,  in  response  to  a  tender  awarded  by  the 
Commission. This “Comparative Study”,2 submitted on 31 August 2004, found that 
levels  of  private  enforcement  by  means  of  damages  claims  in  Europe  are  currently 
very  low  and  that  victims  face  substantial  obstacles  when  trying  to  obtain 
compensation in court (see section 2).  

On  19  December  2005  the  Commission  adopted  a  Green  Paper  and  a  Commission 
Staff  Working  Document  on  damages  actions  for  breach  of  the  EC  antitrust  rules. 
The purpose of the Green Paper was to consult stakeholders and stimulate debate. It 
identified  obstacles  to  effective  antitrust  damages  actions  and  set  out  different 
options as a basis for discussion. The Green Paper was met with broad interest. 

In its 2007 Legislative and Work Programme, the Commission endorsed preparation 
of  a  White  Paper  on  antitrust  damages  actions,  which  would  suggest  possible 
measures to follow up the 2005 Green Paper. To assist with preparation of the White 
Paper  and  the  accompanying  impact  assessment,  on  23  December  2006  the 
Commission  published  a  call  for  tenders  for  provision  of  an  impact  study  on  the 
White Paper (the “Impact Study”).  

6. 

Adoption of the White Paper is to be followed by a period of public consultation of 
all stakeholders. 

1 
2 

http://ec.europa.eu/atwork/programmes/docs/clwp2007_en.pdf. 
http://ec.europa.eu/comm/competition/antitrust/others/actions_for_damages/study.html.  Page  numbers 
quoted in this report refer to the electronic version of the Comparative Study. 

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1.2. 

Consultation and expertise sought 

1.2.1.  Review of the status quo for actions for damages in Europe 

7. 

The Comparative Study identified and analysed the obstacles to successful action for 
damages in the Member States of the European Union. It stated that levels of private 
enforcement by means of damages claims in Europe are very low. The study found 
not  only  “total  underdevelopment”  of  actions  for  damages  for  breach  of  EC 
competition  law,  but  also  “astonishing  diversity”  in  the  approaches  taken  by  the 
Member  States.3  Following  submission  of  the  Comparative  Study,  the  Commission 
met  a  number  of  high-level  academics  and  legal  experts  to  discuss  issues  arising 
from it. 

1.2.2. 

Identification  of  various  possible  options  to  improve  compensation  of  victims  of 
infringements of competition law  

8. 

9. 

The  Green  Paper  identified  various  major  obstacles  to  effective  antitrust  damages 
actions  and  set  out  different  options  on  15  issues,  as  a  basis  for  discussion.  The 
Green  Paper  was  met  with  broad  interest  by  stakeholders:  it  was  discussed  at  a 
number  of  conferences  and  gave  rise  to  nearly  150  formal  submissions.  This  is  in 
addition to numerous comments and material presented at conferences and in various 
publications. 

Practically  all  the  responses  accepted  the  complementary  role  of  private  actions  in 
overall  enforcement  of  the  EC  competition  rules.  Most  respondents  agreed  that 
victims of infringements of competition law are entitled to damages and that national 
procedural rules should be such that this right can be exercised effectively. Although 
the objective of the Green Paper therefore met with a broad consensus, respondents 
have diverging views about the nature and extent of obstacles to actions for damages, 
and  the  appropriate  ways  to  remedy  shortcomings.  In  particular,  consumer 
associations (and law firms known as “plaintiff lawyers”) are generally in favour of 
far-reaching measures to facilitate and create incentives for private damages actions. 
Business  associations  and  their  advisers  often  argue  more  in  favour  of  a  moderate 
approach,  some 
taking  no  action  at  all.  Academics  and 
representatives  from  Member  States  agree  on  the  objective  and  tend  to  favour 
options from the middle of the spectrum. 

recommending 

10. 

The  White  Paper  is  therefore  intended  as  a  basis  for  further  discussion  on  these 
issues, based on specific suggestions and a detailed impact assessment. 

1.2.3.  Opinions of institutional stakeholders 

11. 

The European Parliament contributed to the debate, in April 2007, with a Report and 
a Resolution on the Commission’s Green Paper. The European Parliament called on 
the  Commission  “to  prepare  a  White  Paper  with  detailed  proposals  to  facilitate  the 
bringing  of  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  complementary  role  of  actions  for  damages  (and  the  issue  of 

3 

See p. 1. 

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removing the joint civil 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  NCA  decisions,  the  need  for  collective  actions, 
definition  and  quantification  of  damages,  promotion  of  settlements,  the  passing-on 
defence, costs and limitation periods.4. 

On 20 October 2006 the European Economic and Social Committee (EESC) adopted 
an  Opinion  on  the  Commission’s  Green  Paper.5  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  antitrust  damages 
actions.  

On  two  occasions,  first  on  11  and  12  September,  then  again  on  9  November  2007, 
DG  Competition  met  a  group  of  experts  from  the  Member  States  in  order  to  hear 
their views on a discussion paper drawn up by DG Competition in preparation for the 
White  Paper.  Experts  represented  the  Ministries  of  Justice,  the  Ministries  of 
Economic  Affairs  and  the  national  competition  authorities  of  the  Member  States. 
Representatives from the EFTA Surveillance Authority, the Norwegian competition 
authority, the Icelandic competition authority and the Office of Economic Affairs of 
Liechtenstein were also invited to the meetings. 

On  6  November  2007  DG  Competition  also  held  an  informal  meeting  with  a 
delegation  of  judges  of  national  supreme  courts,  courts  of  appeal,  courts  of  first 
instance  and  specialist  competition  tribunals  from  12  Member  States6  to  discuss 
specific  issues  related  to  antitrust  damages  actions,  based  on  the  discussion  paper 
prepared by Commission staff.  

12. 

13. 

14. 

1.2.4.  Other consultations 

15. 

16. 

4 

5 

6 

Consultation on the issues raised in the Green Paper extended far beyond the formal 
period of public consultation. Since adoption of the Green Paper, Commission staff 
have repeatedly met a wide range of stakeholders and experts, in particular consumer 
associations, business representatives, lawyers and academics.  

Commission staff have participated in a large number of events (conferences, expert 
panels,  etc.)  to  discuss  more  effective  actions  for  antitrust  damages  in  the  EU  and 
their  implications.  Moreover,  the  Commission  itself  co-organised  two  major 
conferences  which  were  attended  by  a  wide  range  of  experts  and  stakeholders  and 
were a valuable source of feedback – one on “Private enforcement in EC competition 
law” together with the ERA Academy of European Law (9 March 2006 in Brussels), 

306). 

The  Report 

2006/2207(INI)).  The  Resolution  is  available  on  the  website  of  the  European  Parliament  at: 
http://www.europarl.europa.eu/oeil/file.jsp?id=5378362.  
(INT 
on 
http://eescopinions.eesc.europa.eu/viewdoc.aspx?doc=\\esppub1\esp_public\ces\int\int306\en\ces1349-
2006_ac_en.doc. 
Invitations  were  issued  via  the  Association  of  European  Competition  Law  Judges,  the  European 
Network of Councils for the Judiciary and the Network of the Presidents of the Supreme Judicial Courts 
of the EU. 

the  website 

available 

EESC 

the 

at: 

of 

is 

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the other on “Cartel enforcement and antitrust damages actions in Europe” together 
with the International Bar Association (7-9 March 2007 in Brussels). 

1.2.5. 

Study analysing potential impact 

17. 

18. 

19. 

20. 

21. 

An impact study on the White Paper on EC antitrust  damages actions  (the “Impact 
Study”) was undertaken by the Centre for European Policies Studies, in association 
with Erasmus University Rotterdam and Libera Università Internazionale degli Studi 
Sociali Guido Carli, in response to a tender awarded by the Commission.7  

With  this tender, the  European Commission  was seeking  the  expertise  necessary to 
produce a study on the economic and social impact of a higher level of EC antitrust 
damages actions in Europe, especially in comparison with the current recognised low 
level. The Impact Study was officially submitted to the Commission on 21 December 
2007. 

The Impact Study provides the Commission with a thorough analysis to assist it in 
assessing the impact of a higher level of EC antitrust damages actions in Europe. In 
particular, it contains an extensive analysis of the existing research regarding private 
actions for damages, a welfare analysis of a more effective system of private antitrust 
damages actions in Europe and a cost-benefits/cost-effectiveness analysis of specific 
measures  and  comprehensive  options  that  could  enhance  private  antitrust  damages 
actions  in  Europe.  The  Impact  Study  follows  the  method  in  the  Commission’s 
Guidelines on Impact Assessment.8  

In terms of final result, the Impact Study found that a range of measures facilitating 
antitrust damages actions would have a significant positive impact in the EU, namely 
ensure  adequate  compensation  for  victims,  enhance  deterrence  of  unlawful  conduct 
and  have  positive  overall  economic  effects.  The  Impact  Study  also  identified  the 
measures most likely to minimise any negative effects, such as higher litigation costs 
and heavier administrative burdens.  

The  Impact  Study  provided  key  input  for  the  Commission  in  preparation  for  this 
“Impact  Assessment  Report”  (or  this  “report”).  However,  the  Commission  has 
conducted  its  own  analysis  of  the  Impact  Study  and  of  the  wealth  of  material 
gathered during the formal and informal consultations. Therefore, the conclusions of 
this  report  may,  in  some  instances,  diverge  from  the  findings  of  the  Impact  Study, 
when there are sound legal or policy reasons to do so.  

1.3. 

Inter-service consultations 

1.3.1. 

Informal consultations within the European Commission 

22. 

Since the White Paper touches upon a variety of issues, some of which are related to 
the work of other Commission departments, the Directorate-General for Competition 
ensured  close  cooperation  with  all  the  Commission  departments  concerned  at 
different levels and at every stage of the preparatory process. This exchange of views 

7 

8 

Invitation  to  tender  COMP/2006/A3/012  published  on  23/12/2006  under  reference  No  2006/S  245-
262369. 
SEC(2005) 791. 

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23. 

24. 

25. 

before  the  official  Inter-Service  Consultation  allowed  progress  in  many  areas  and 
alignment of positions on more sensitive topics.  

The  sections  of  the  White  Paper  which  relate  to  issues  touching  upon  the  areas  of 
activity of other Directorates-General have been drafted in cooperation with the DGs 
concerned.  Cooperation  was  particularly  close  with  the  Directorate-General  for 
Health  and  Consumer  Affairs,  which,  together  with  the  Directorate-General  for 
Enterprise,  was,  inter  alia,  represented  on  the  Commission  evaluation  board  in  the 
procedure to choose the contractor to carry out the Impact Study.  

Furthermore,  an  inter-service  group  was  set  up  for  this  Impact  Assessment  Report 
and  met  on  various  occasions  –  on  24  November  2006,  13  July  2007  and 
10 December  2007.  The  members  of  this  group  were  also  given  an  opportunity  to 
comment on the ongoing work of the contractor preparing the Impact Study. 

This  Impact  Assessment  analyses  a  wide  range  of  policy  options,  some  of  which 
may, in different policy areas, also be or come to be assessed by other Directorates-
General of the Commission. Based on all these assessments, the various initiatives by 
the Commission will continue to be closely coordinated. Particularly with respect to 
collective redress, it will, in due course, be appropriate to assess whether and to what 
extent a horizontal instrument can effectively tackle the issues identified, or whether 
specific  competition  law  measures  (as  analysed  in  this  report)  are  better  suited  to 
rendering the victims’ rights to compensation effective. 

1.3.2.  Formal Inter-Service Consultation  

26. 

A  formal  Inter-Service  Consultation  was  launched  on  9  February  2008.  The 
Directorate-General  for  Competition  took  due  account  of  the  various  comments 
received during this consultation. 

1.4. 

The Impact Assessment Board 

27. 

A draft of this Impact Assessment was submitted to the Impact Assessment Board on 
21  December  2007.  In  its  favourable  opinion  dated  25  January  2008,  the  Board 
advised  the  Directorate-General  for  Competition  to  elaborate  on  certain  problem 
definition  issues,  to  make  the  identification  of  policy  options  more  transparent,  to 
further  explain  the  relationship  between  public  and  private  enforcement  and  to 
expand the analysis of certain forms of impact. 

28. 

The  Directorate-General  for  Competition  has  revised  this  report  in  line  with  the 
Board’s comments. 

1.5. 

Legal context of the proposed initiative 

29. 

In  2001  and  2006  the  European  Court  of  Justice  recalled  that,  as  a  matter  of 
Community  law,  the  possibility  of  claiming  compensation  must  be  open  to  any 
individual  who  suffers  harm  as  a  result  of  an  infringement  of  Community  antitrust 
rules.  As  the  Court  emphasised,  Community  law  requires  effective  remedies  which 
create a realistic opportunity to exercise this right to damages.  

30. 

The main objective of the White Paper is to ensure effective implementation of the 
finding  of  the  European  Court  of  Justice  that  the  full  effectiveness  of  the  Treaty 

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would  be  put  at  risk  if  there  was  no  realistic  chance  for  every  individual  to  obtain 
damages for loss caused by conduct liable to restrict or distort competition. 

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2. 

31. 

32. 

2.1. 

33. 

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14 

PROBLEM TO BE ADDRESSED − THE “WHY” 

The key issue addressed in the White Paper 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. Deficits 
regarding  reparation  of  harm  resulting  from  an  infringement  of  directly  applicable 
Community  rules  also  exist  in  other  areas  of  law.  In  the  field  of  competition, 
however,  the  size  of  the  uncompensated  harm  and  the  problems  encountered  are 
particularly  big.  This  is  mainly  due  to  a  number  of  particular  characteristics  of 
actions for damages for competition infringements. These include the very complex 
factual and economic analysis required, the frequent inaccessibility and concealment 
of crucial evidence in the hands of defendants and the often unfavourable risk/reward 
balance for claimants.  

Companies which infringe the EC competition rules usually gain an illegal advantage 
on  the  market  at  the  expense  of  other  players  and,  in  particular,  consumers.  The 
damage caused by anti-competitive practices, such as price-fixing or market-sharing 
agreements, can be immense. For example, in France, courts recently confirmed the 
findings  of  the  Competition  Council  that  a  market-sharing  cartel  of  mobile  phone 
operators had led to damages for consumers that were estimated to be in the range of 
€295 to €590 million during the period from 2000 to 2002.9 In another recent case, 
the  UK  competition  authority  estimated  that  collusion  between  large  supermarkets 
and  dairy  processors  to  increase  the  prices  of  dairy  products  had  cost  consumers 
around  £270  million  (approximately  €375 million)  during  a  two-year  period.10  A 
cartel  of  brewers  on  the  Dutch  market  is  said  to  have  inflated  beer  prices  for 
consumers by €400 million from 1996 to 1999.11 Abuse of its dominant position by a 
broadband provider and wholesaler in Spain12 prompted a consumers association to 
claim  €458  million  in  damages  before  a  court  as  compensation  for  five  years  of 
illegal  overcharging.13  Infringements  which  concern  more  than  one  Member  State 
and  longer  periods  than  these  examples  are  bound  to  have  a  far  greater  negative 
impact.  As  a  matter  of  fact,  EU-wide  infringements  are  becoming  more  and  more 
frequent.  

The  current  legal  framework  for  competition  damages  actions  is  ineffective: 
major difficulties for victims to obtain compensation  

In  2001  and  2006,  the  European  Court  of  Justice  recalled  that,  as  a  matter  of 
Community  law,  the  possibility  of  claiming  compensation  must  be  open  to  any 
individual  who  suffers  harm  as  a  result  of  an  infringement  of  Community  antitrust 
rules.14  Community  law  requires  an  effective  legal  framework  which  creates  a 

For an estimate of the harm suffered by consumers, see the Competition Council’s Decision 05-D-65 of 
30 November 2005, paragraph 338.  
See www.oft.gov.uk/news/press/2007/134-07. 
See the estimate by Maarten Pieter Schinkel (University of Amsterdam) reported by NRC Handelsblad 
at: www.nrc.nl/europa/article773658.ece/Kratje_pils_was_jarenlang_1_euro_te_duur. 
This  action  was  brought  following  the  Commission  decision  of  4.7.2007,  Case  COMP/38.784  – 
Wanadoo España/Telefónica.  
See http://www.ausbanc.es. 
Case  C-453/99,  Courage  and  Crehan,  [2001]  ECR  I-6297,  and  Joined  Cases  C-295/04  to  C-298/04, 
Manfredi, [2006] ECR I-6619. 

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34. 

35. 

realistic opportunity to exercise this right to damages. This framework can consist of 
Community  rules  on  the  matter  or,  in  the  absence  thereof,  the  legislation  in  the 
Member States on civil law and procedure, or a combination of the two. For the time 
being, no specific Community rules (other than those derived from the principles of 
effectiveness  and  equivalence)  exist  regarding  claims  for  competition  damages 
before civil courts, so the national rules on civil liability and civil procedure apply.  

Under these very diverse national rules, in practice citizens and companies encounter 
difficulties  in  obtaining  compensation  for  antitrust  damages  before  the  civil  courts. 
The traditional legal mechanisms are not working effectively in the specific context 
of  antitrust  damages  claims.  This  general  problem  identified  by  the  Comparative 
Study,  the  Commission’s  Green  Paper  and  the  annexed  Staff  Working  Paper  was 
largely confirmed during the public consultation. By contrast, many respondents who 
themselves face an increased likelihood of becoming (or representing) a defendant in 
damages  actions  considered 
framework 
appropriate.15 The Impact Study on measures facilitating antitrust damages actions in 
Europe  concludes  that  under  the  current  systems  it  is  very  difficult  to  exercise  the 
right  to  damages  and  that  very  few  victims  receive  compensation.16  The  European 
Parliament and the European Economic and Social Committee also concur with the 
findings  in  the  Green  Paper  and  have  called  upon  the  Commission  to  address  the 
problem  of  the  ineffective  legal  framework  for  antitrust  damages  actions  in  the 
interest of consumers and businesses.17  

legal  and  procedural 

the  current 

The  Comparative  Study  actually  found  “total  underdevelopment”  of  such  damages 
actions, an “astonishing diversity” in the approaches taken in the Member States and 
a considerable degree of legal uncertainty across the EU.18 The study identified only 
a very limited number of successful damages awards for breach of EC antitrust rules 
since  1962.19  The  Green  Paper  and  the  annexed  Staff  Working  Paper  describe  the 
main  difficulties  and  obstacles  in  the  legal  systems  of  the  Member  States 
encountered by victims of infringements of competition law when trying to exercise 
their entitlement to damages;20 section 2.3 recalls the main causes and drivers. Since 
the  Comparative  Study  and  the  Commission’s  Green  Paper,  an  increase  has  been 
reported,  in  some  Member  States,  in  attempts  by  victims  to  claim  damages  before 
civil  courts.  However,  the  problems  identified  in  the  Comparative  Study  remain 
essentially  unchanged, as in  most Member States and across the EU the number of 
cases  where  victims  have  been  successful  in  their  action  for  antitrust  damages21  is 
still very limited (see section 2.4 for further details). 

15 

16 
17 

18 
19 

20 

21 

Some  academic  commentators  and  some  representatives  of  Member  States  were  also  more  sceptical. 
For  the  formal  consultation  on  the  Green  Paper  see  the  written  submissions  available  at: 
http://ec.europa.eu/comm/competition/antitrust/actionsdamages/green_paper_comments.html. 
See Impact Study, Part III, section 2.1. 
European  Parliament  Resolution  (see  footnote  Error!  Bookmark  not  defined.),  points  D  and  F 
together with points 11 to 27; Report of the European Economic and Social Committee (see footnote 5), 
point 5.4. 
See Comparative Study, p. 1-1. 
See page 1. See also the Resolution of the European Parliament which concludes that there is only “rare 
and exceptional use of private actions” in competition cases for damages (see point F).  
On  these  obstacles,  see  also  the  European  Parliament  Resolution,  points  11  to  27  and  Report  of  the 
European Economic and Social Committee (see footnote 5), point 5.4. 
See also Impact Study, Part I, section 1. 

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36. 

37. 

38. 

No  statistics  are  available  on  the  number  of  (usually  confidential)  settlements 
between  victims  and  infringers  or  successful  cases  of  alternative  dispute  resolution 
such as mediation. However, deficits are bound to exist in this respect too, as long as 
there are significant obstacles to judicial enforcement of the right to damages, given 
that, to a large extent, effective and equitable settlements and mediation presuppose a 
realistic possibility of alternatively enforcing the damages claim before civil courts.  

As a consequence of the current situation, a large number of victims of infringements 
of competition law remain uncompensated for the harm suffered and see their right to 
damages under the EC Treaty frustrated. There is therefore a clear deficit in terms of 
corrective justice.  

In  addition,  the  lack  of  an  effectively  functioning  legal  framework  for  antitrust 
damages  actions  also  precludes  other  beneficial  effects  of  private  enforcement  of 
Treaty  rights,  namely  the  deterrence  of  future  infringements  inherent  in  effective 
compensation mechanisms.22 If infringers of competition law have no fear of having 
to pay damages to their victims, they have fewer incentives to refrain from engaging 
in anti-competitive conduct. If victims have access to effective legal mechanisms to 
bring  infringements  of  competition  law  before  civil  courts,  there  is  a  greater 
likelihood that a larger number of illegal restrictions of competition will be detected 
and  addressed  in  full,  as  victims  could  have  particular  knowledge  about  the  anti-
competitive  practices  and  may  decide  to  take  the  initiative  if  the  competition 
authorities  do  not  pursue  the  case  (e.g. for  reasons  of  priority-setting  because  of 
limited resources). The Court of Justice emphasised this complementary function of 
private  enforcement  of  directly  applicable  Treaty  rights  as  early  as  196323  and,  in 
later  years,  made  it  clear  that  without  a  working  mechanism  for  victims  to  obtain 
redress, the effectiveness of Articles 81 and 82 of the EC Treaty is put at risk.24  

39. 

Articles 81 and 82 are a matter of public policy and lie at the heart of the functioning 
of the internal market.25 Shortcomings in effective enforcement of Articles 81 and 82 
hinder  achievement  of  the  results  of  competition,  namely  better  allocation  of 
resources, greater economic efficiency, increased innovation and lower prices. In this 
way, such shortcomings also have a direct impact on the functioning of the internal 
market, which relies on a system of undistorted competition.  

2.2. 

The scope and scale of the problem 

40. 

The  problem  outlined  above  is  not  limited  to  any  particular  Member  State.  It  is 
observed  in  every  Member  State,  although  to  differing  degrees  as  the  applicable 
national rules differ significantly (see section 2.4). Infringements of competition law, 
be  they  hardcore  cartels,  other  infringements  of  Article  81  or  abuses  under 

22 
23 

24 

25 

See also Impact Study, Part I, section 2.1.  
Case  26/62,  van  Gend  en  Loos  [1962]  ECR  (Eng.  Spec.  Ed.)  1:  “(…)  the  vigilance  of  individuals  to 
protect  their  rights  amounts  to  an  effective supervision  in addition  to  the  supervision  entrusted  to  the 
diligence of the Commission and of the Member States.”  
Case C-453/99, Courage and Crehan (see footnote 14), paragraph 27 and Joined Cases C-295/04 to C-
298/04, Manfredi (see footnote 14), paragraph 91. 
Case  C-126/97,  Eco  Swiss  [1999]  ECR  I-3055,  paragraph  36,  and  Manfredi  (see  footnote  14), 
paragraph 31.  

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41. 

42. 

Article 82,  occur  in  almost  every  sector  of  the  economy.26  The  problem  outlined 
above  concerns  both  actions  for  damages  brought  following  a  decision  by  a  public 
authority  and  actions  brought  on  a  stand-alone  basis.  Moreover,  the  problem 
concerns  all  groups  of  citizens  and  businesses.  Especially  affected,  however,  are 
large groups of consumers and small and medium-sized enterprises (SMEs): often at 
the  end  of  the  distribution  chain,  they  face  particular  difficulties  in  identifying  and 
proving  the  harm  they  suffered  (quantum  and  causal  link)  and  perceive  the 
uncertainties, risks and costs of an action as disproportionate to potential benefits.27  

It  is  impossible  to  quantify  precisely  the  total  cost  of  the  current  ineffectiveness  of 
the legal framework for antitrust  damages actions to the direct and indirect victims 
and to society as a whole. There are no reliable empirical data, neither on the number 
of infringements of competition law occurring in Europe every year nor on the scale 
of  the  harm  they  cause.  Especially  for  the  gravest  and  most  harmful  violations, 
infringers usually go a long way to conceal their practices and their impact. 

There  is,  however,  general  agreement  that  the  total  harm  done  to  society  by 
infringements of competition law is immense. Looking alone at hardcore cartels with 
effects  across  the  EU,28  the  Impact  Study  estimates  that  the  annual  direct  cost  to 
consumers  and  other  victims  in  the  EU  ranges  from  approximately  €13  billion  (on 
the most conservative assumptions) to over €37 billion (on the least conservative29). 
This  estimate  comprises  both  the  harm  resulting  from  consumers  and  other  victims 
having  to  pay  a  higher  price  due  to  the  illegal  conduct  of  the  cartelists  (the 
“overcharge”)  and  also  the  economic  benefits  forgone  by  consumers  and  other 
victims who do not purchase, or purchase a smaller quantity, due to the unlawfully 
inflated price (the “deadweight loss”30). It therefore covers the direct costs of cartels 
to consumers and other victims. It takes no account of more indirect macro-economic 
effects, such as the absence of greater allocative, productive and dynamic efficiency, 
which  could  have  contributed  to  growth  and  employment,  which  are  extremely 
difficult even to estimate.  

43. 

If one adds to the figures on EU-wide cartels the annual cost to consumers and other 
victims of domestic hardcore cartels, the total annual cost for hardcore cartels in the 
EU  can  be  estimated  to  range  from  approximately  €25  billion  (on  the  most 

26 

27 
28 

29 

30 

See,  for  instance,  the  Commission’s  Annual  Reports  on  Competition  Policy  at:  http://ec.europa.eu/ 
comm/competition/annual_reports/. 
See Impact Study, Part III, section 2.1. 
Hardcore  cartels  are  outright  agreements  between  competitors  to  fix  prices  or  allocate  markets.  The 
estimates  do  not  cover  other  infringements  of  Article  81  such  as  vertical  restraints  nor  abuses  under 
Article 82.  
This  estimate  is  based  on  the  total  amount  of  fines  imposed  by  the  European  Commission  on  cartels 
(annual  average  for  the  period  2002  to  2007)  and  the  finding  that,  on  average,  the  total  overcharge 
applied by  these  cartels  is  approximately  50%  of  the  fine.  Assuming  a  given  detection  rate  of  cartels 
(10%  on  the  least  conservative  assumptions  and  20%  on  the  most  conservative),  the  total  overcharge 
applied by undetected EU-wide cartels can be calculated. Another constituent of harm to consumers is 
the “deadweight loss”. Assuming a set relation to the overcharge applied (50% on the least conservative 
assumptions and 10% on the most conservative), the total deadweight loss is calculated and then added 
to the total overcharge in detected and undetected cartels. For further explanations of the method and 
for  data  underlying  these  assumptions  plus  extensive  references  to  research  in  this  area,  see  Impact 
Study, Part I, section 3.1.2. 
The deadweight loss mentioned above does not include the surplus lost by the cartelist as a result of the 
lower quantity sold.  

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conservative assumptions) to approximately €69 billion (on the least conservative).31 
Expressed as a proportion of the EU’s gross domestic product, the negative consumer 
welfare  impact  of  all  these  hardcore  cartels  is  estimated  as  ranging  from  0.23%  to 
0.62%  of  the  EU’s  GDP  in  2007,32  which  does  not  include  the  harm  caused  by 
abusive  practices  and  infringements  of  Article  81  other  than  hardcore  cartels.  To 
illustrate  the  harm  created  by  cartels  and  thus  the  potential  benefits  of  enhanced 
private enforcement differently: if more effective compensation mechanisms were to 
lead to a reduction of hardcore cartels by, for example,  5%, the negative consumer 
welfare impact would be reduced by €1.25 to €3.45 billion. 

Even  in  the  most  effective  system  of  private  enforcement,  not  all  the  harm  to 
consumers  and  other  victims  reflected  in  the  above  estimates  will  be  compensated: 
this  is  because,  inter  alia,  a  considerable  number  of  antitrust  infringements  will 
remain undetected. For hardcore cartels, the detection rate is generally assumed to be 
no  more  than  somewhere  between  10%  and  20%.33  For  other  infringements,  the 
detection rate is higher, but the “conviction” rate (i.e. the rate of successful damages 
actions)  is  likely  to  be  much  lower,  since  claimants  often  find  it  very  difficult  to 
produce proof that the contested conduct produced actual anti-competitive effects.34 
It  also  has  to  be  assumed  that  some  victims  do  not  come  forward  to  claim 
compensation,  for  instance  because  they  prefer  not  to  disrupt  an  ongoing  business 
relationship  with  the  infringer.  Moreover,  in  some  instances,  victims  will  find  it 
rather  difficult  to  convince  courts  of  a  sufficiently  close  causal  link  between  any 
particular damage and the infringement.35  

Any realistic estimate of how much compensation victims could expect under a more 
effective legal framework for antitrust damages actions is therefore necessarily lower 
than  the  total  harm  to  consumers  and  other  victims  from  detected  and  undetected 
infringements estimated (for cartels) above. The Impact Study assesses the potential 
benefit of a more effective compensation system in the EU by comparing the current 
ineffective legal framework in Europe with a legal system where private enforcement 
of  competition  rules  by  means  of  damages  actions  is  very  effective,  i.e.  where 
victims of antitrust infringements no longer encounter the same obstacles to claiming 
compensation  in  court  for  the  damage  suffered.36  On  this  basis,  the  Impact  Study 
estimates that the total amount of compensation (single damages plus pre-judgment 
interest37) that victims of antitrust infringements are currently forgoing ranges from 
approximately  €5.7  billion  (on  the  most  conservative  assumptions)  to  €23.3  billion 

This estimate is based on the figures for (at least) EU-wide cartels (see above) and on the assumption 
that domestic cartels imply harm to consumers equivalent to 88.4% of the harm resulting from EU-wide 
cartels;  for  details  on  the  methodology  and  underlying  assumptions  see  Impact  Study,  Part  I,  section 
3.2.1.  
See for these estimates and the underlying analysis Impact Study, Part I, section 3.2.1 (Table 10).  
See Impact Study, Part I, sections 2.1.1 and 3.1.1.1. 
See Impact Study, Part I, section 4.1. 
See Comparative Study, pp. 1-72 to 1-75 and 1-110. 
The empirical data used by the Impact Study in this comparison are mostly from the USA, a country 
which  has  an  enhanced  system  of  antitrust  damages  actions.  A  range  of  refinements  were,  however, 
made  to  these  data.  In  particular,  the  figures  mentioned  above  are  not  based  on  treble  damages  as 
customary in the USA, but rather single damages with pre-judgment interest, to reflect the predominant 
legal situation in many Member States (on average, single damages with pre-judgment interest can be 
said  to  equate  roughly  to  double  damages  without  pre-judgment  interest,  see  Impact  Study,  Part  I, 
section 6 with further references).  
See previous footnote. 

44. 

45. 

31 

32 
33 
34 
35 
36 

37 

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46. 

(on  the  least  conservative)  each  year  across  the  EU.38  These  estimates  relate  to  all 
types of infringements of Articles 81 and 82. They provide  an  approximate idea of 
the  amount  of  compensation  that  victims  are  currently  forgoing.  However,  they 
should  not  be  taken  as  a  precise  calculation  of  the  magnitude  of  future  antitrust 
damage  awards,  given  that  they  have  to  be  based  on  a  range  of,  sometimes  big, 
assumptions. They can only be taken as just an indication of the potential for more 
effective private damages actions.  

More  effective  antitrust  damages  actions  implies  more  cases.  An  increase  in  the 
number  of  court  actions  will  result  in  additional  costs,  in  particular  for  businesses, 
consumers  and  the  judicial  system.  It  is not possible to quantify  with  a sufficiently 
satisfactory degree of precision the costs to be expected as a result of this increase. 
However, sections 5 and 6 of this report assess alternative policy options in terms of 
the likely litigation costs, administrative burden and error costs, for both private and 
public  entities.39 It is  even more difficult actually to measure,  taking account of all 
potential  benefits  and  costs,  the  net  gains  (or  reductions)  in  terms  of  possible 
efficiencies  (greater  deterrence,  lower  prices,  better  quality  and  resource  allocation 
and possible macro-economic effects) that could result from an effective legal system 
for private antitrust damages actions. Nevertheless, one finding of the Impact Study 
is that, in any scenario, the costs resulting from an increased level of damages cases 
would not offset the potential benefits in terms of compensation of victims as a result 
of the higher level of actions for damages.40 Sections 5 and 6 set out a more detailed 
comparison of the positive and negative impacts likely to be triggered by alternative 
policy options.  

2.3. 

Causes and drivers 

47. 

During the Commission’s various formal and informal consultations of stakeholders, 
it became clear that the ineffectiveness of the legal framework for antitrust damages 
actions is due to a set of different causes and drivers: it is partly the result of the high 
degree  of  legal  uncertainty  that  potential  claimants,  but  also  defendants,  face.  It  is 
also  due  to  a  range  of  legal  and  procedural  hurdles  in  the  traditional  rules  of  the 
Member States. These factors, combined with the fact that antitrust cases, by nature, 
often  require  an  unusually  high  level  of  very  costly  factual  and  economic  analysis 
and  present  specific  difficulties  for  claimants  when  it  comes  to  access  to  crucial 
pieces  of  evidence  often  kept  secret  in  the  hands  of  the  defendants,  deter  many 
victims  from  bringing  actions  as  they  consider  the  risk/reward  balance  to  be 
negative.41 

48. 

As  the  Comparative  Study  on  the  conditions  of  damages  claims  has  shown,  legal 
uncertainty exists at several levels. For a number of important legal issues, existing 
national  law  is  simply  unclear  about  which  rule  applies  in  the  specific  context  of 
antitrust  damages  cases.42  These  issues  include,  to  give  just  one  example,  the 

38 
39 
40 
41 

42 

See Impact Study, Part I, section 6. 
See the more detailed analysis in the tables in sections 5 and 6. 
See Impact Study, Part I, section 6. 
See Impact Study, Part II, section 1.1 (for a general model of incentives to sue) and Part II, section 3.2 
for the specific issue of access to evidence.  
See Comparative Study, pp. 1-26 to 1-102. 

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49. 

50. 

43 
44 
45 
46 

47 

availability of the “passing-on defence”.43 This means a situation where a company 
that  purchased  from  an  infringer  was  in  a  position  to  reduce  its  economic  loss  by 
passing on the overcharge to its own customers. In most Member States, there are no 
clear rules and hardly any case law on this crucial issue. 

Additional  legal  uncertainty  for  stakeholders  stems  from  the  significant  differences 
between  the  procedural  and  substantive  rules  governing  actions  for  damages  in  the 
individual  Member  States.  These  are  described  in  the  Comparative  Study  on  the 
conditions  of  damages  claims.44  For  instance,  while  in  some  Member  States  strict 
liability for damages exists once an infringement of the competition rules has been 
established,  in  others  victims  must  produce  proof  that  the  infringer  acted  at  least 
negligently.45 Another example of big differences between the Member States are the 
possibilities (or lack thereof) for victims to gain access to, and use in court, evidence 
which  is  in  the  possession  of  the  opponent.  Also  the  way  in  which  the  damage  is 
quantified differs considerably between Member States, for instance the treatment of 
losses of (business) opportunities or of interest. Such diversity in the legal systems is 
not  only  a  problem  for  victims,  be  they  consumers  or  businesses,  when  they  try  to 
bring  an  action  for  damages  in  another  Member  State,  e.g.  at  the  domicile  of  the 
defendant. For businesses, the potential of becoming a defendant in a damages action 
in another Member State under national rules which are unfamiliar to them and even 
unclear in objective terms, creates imponderability and costs that can have a negative 
impact on the functioning of the internal market. Moreover, in certain circumstances 
companies  in  Member  States  with  less  effective  antitrust  damages  rules  and 
procedures enjoy an undue competitive advantage in terms of potential liability over 
companies from Member States with more effective rules.46 All in all, it is therefore 
clear that a more level playing field should be in the interest of both potential victims 
and companies doing business across the EU. 

Uncertainty amongst stakeholders about the applicable rules even exists with regard 
to  the  established  acquis  communautaire  on  damages  for  harm  in  the  field  of 
competition,  which  is  mainly  derived  from  judgments  on  the  Treaty  rules  by  the 
European  Court  of  Justice.  Victims  of  infringements  of  the  competition  legislation 
(and their legal advisers) are often unaware that the Court has spelled out a number 
of significant practical consequences that flow from the general principles governing 
protection of the Community law entitlement to damages.47 These examples include 
certain  specific  requirements  concerning  the  beginning,  duration  and  suspension  of 
limitation periods under national law which determine the time after which a claim 

See Comparative Study, pp. 1-78 to 1-80, 1-111 to 1-112 and 1-127 to 1-129. 
See Comparative Study, pp. 1-26 to 1-102.  
See Comparative Study, pp. 1-51 to 1-53. 
There  is  a  serious  risk  of  a  company  infringing  competition  rules  being  sued  for  damages  in  the 
Member State where the company is incorporated and that not only the procedural rules of that country 
apply but also the rules of substantive law. See Article 2 of Regulation 44/2001 and Article 6(3)(b) of 
Regulation 864/2007. 
The  most  important  principles  in  this  context  (see  the  Court’s  judgment  in  the  Manfredi  case  (see 
footnote 14 above)) are equivalence and effectiveness: national rules on the exercise of a Community 
law right to damages cannot be less favourable than those governing similar domestic actions (principle 
of equivalence), nor can they render exercise of these Community law rights practically impossible or 
excessively  difficult  (principle  of  effectiveness).  For  further  details  see  Commission  Staff  Working 
Paper,  Annex  to  the  Green  Paper:  Damages  actions  for  breach  of  the  EC  antitrust  rules,  SEC  (2005) 
1732, points 18-22.  

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for  damages  can  no  longer  be  brought.  They  also  include  specific  implications, 
following from the Community law principle of effectiveness, for the national rules 
on  standing  (locus  standi)  in  damages  cases,  i.e.  the  procedural  conditions  that 
determine which group of persons is entitled to start a lawsuit for damages. Also in 
the case of the types of damage that victims must be able to recover under national 
law for breach of EC competition law, the acquis communautaire establishes certain 
principles48 not well known to victims.  

51. 

As mentioned earlier, alongside the legal uncertainty described, the national rules on 
civil law and civil procedure contain a series of direct difficulties and obstacles for 
victims seeking effective redress in competition cases. These have been set out and 
analysed  in  more  detail  in  the  Green  Paper  and  the  accompanying  Staff  Working 
Paper.  During  the  formal  and  informal  consultation,  many  stakeholders  confirmed 
their existence and importance. This group of obstacles in the rules of civil procedure 
and civil law comprises the following aspects:  

•  Obtaining  access  to  the  evidence  necessary  for  proving  a  case  for  damages  is 
considered to be one of the main problems faced by victims for a combination of 
two  reasons:  competition  cases  are  extremely  fact-intensive  and  require 
assessment  of  a  variety  of  very  complex  factual  elements,  while  it  is  often  very 
difficult, or even impossible, for claimants to produce the required evidence, since 
it  is  in  the  possession  of  the  defendants.  Many  Member  States  apply  strict  rules 
requiring claimants to proffer precisely identified pieces of evidence to support all 
the facts of their case and impose only limited obligations on defendants to reveal 
crucial evidence in their possession. This makes it extremely difficult for victims 
to overcome the information asymmetry present in most competition cases.49  

•  The damage that antitrust infringements cause to consumers and small businesses 
is  often  scattered  between  a  large  number  of  victims.  In  view  of  the  existing 
procedural  difficulties  and  the  complex  analysis  required  in  antitrust  cases,  such 
victims  are  unlikely  to  bring  individual  damages  actions  given  the  costs  of  the 
litigation in relation to the size of their individual claims.50 However, few Member 
States  currently  allow  effective  collective  redress  mechanisms  resulting  in  the 
award of damages.51 This particularly affects SMEs and final consumers. 

•  As  mentioned  earlier,  the  lack  in  many  Member  States  of  clear  written  rules  or 
even  guidance  from  case  law  concerning  the  passing-on  defence  creates 
significant uncertainty about the outcome of actions and deters potential claimants 
from taking the potentially high cost risk of an action. 

•  Where  a  private  action  for  damages  follows  a  decision  by  the  European 
Commission, existing legislation (Article 16 of Regulation 1/2003) provides that 
claimants  for  damages  can  rely  on  this  decision  as  unrebuttable  evidence  of  the 
infringement  before  civil  courts.  In  the  majority  of  Member  States,  decisions 

48 
49 
50 
51 

See Joined Cases C-295/04 to C-298/04, Manfredi (see footnote 14), paragraph 95. 
See Impact Study, Part II, section 3.2.1 and Comparative Study, pp. 1-53 to 1-76 and 1-107 to 1-111. 
See Impact Study, Part II, section 2. 
See  Comparative  Study,  pp.  1-43  to  1-47  and  1-106.  See  also  the  study  on  alternative  means  of 
consumer redress other than redress through ordinary judicial proceedings, conducted by the University 
of Leuven, at: http://ec.europa.eu/consumers/redress/reports_studies/comparative_report_en.pdf. 

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adopted  by  the  national  competition  authorities  (NCAs)  lack  any  such 
binding  effect.52  Only  in  a  few  Member  States  can  claimants  rely  before  civil 
courts  on  such  public  decisions  as  unrebuttable  evidence  of  the  infringement 
found. In the others, defendants are allowed to call into question the findings of 
the NCA decision and the civil courts presented with a claim for damages can be 
required  to  re-examine  the  facts  already  investigated  and  established  by  the 
specialised  NCA,  even  if  its  decision  was  confirmed  by  appeal  courts.  Even  if 
such relitigation as regards the finding of the infringement would in most cases be 
unsuccessful,  it  would  add  a  further  imponderability  and,  especially,  time  and 
costs  to  the  claimant’s  lawsuit  and  deters  victims  from  bringing  an  action  for 
damages.  

•  Unduly  short  limitation  periods  can  bar  potential  claimants  from  bringing  an 
action.53  The  Member  States’  limitation  periods  for  damages  actions  differ  in 
length  and  in  terms  of  the  starting  event  (occurrence  of  damage  or  knowledge 
thereof).54 Particularly in follow-on actions, it can be efficient for parties to wait 
for the outcome of the public proceedings (and a possible appeal), but in certain 
instances the rules on limitation periods in Member States do not allow this. 

•  In  some  Member  States,  claimants  who  have  established  that  the  defendant 
infringed  antitrust  rules  and  caused  damage  to  them  still  have  to  prove  either 
negligence or intent on the part of the infringer.55 Litigation on the issue of fault 
adds to the costs and duration of proceedings and increases uncertainty, especially 
when  the  relevant  factual evidence  to  determine  whether  an  undertaking  applied 
the requisite standard of care are in the possession of the undertaking.  

•  Although the case law of the Court of Justice clarifies several issues regarding the 
types of damage that are recoverable, significant differences and uncertainty exist 
in the Member States’ laws as regards the way in which victims can calculate the 
damage suffered. Quantification can be particularly difficult, since the claimant 
has  to  produce  evidence  of  a  hypothetical  scenario,  namely  what  his  economic 
situation would have been in the absence of the infringement.56 In many Member 
States  it  is  unclear  to  what  extent  judges  can  have  recourse  to  approximate 
methods of calculating damages, such as the ex aequo et bono method or the use 
of rebuttable presumptions, in cases where exact calculation of the damage proves 
practically impossible or excessively difficult.57 

•  The last, but by no means least, driver of the current ineffectiveness of damages 
actions relates to the costs of actions and the rules on their allocation. The risk 
of excessive costs (due to the difficulties of bringing a case for antitrust damages 
under  the  current  legal  framework)  or  of  overly  unpredictable  costs  (due  to  the 
legal  imponderability  described  and  the  difficulty  of  foreseeing  the  complex 

52 
53 
54 
55 
56 
57 

See Comparative Study, pp. 1-70 to 1-71 and 1-110. 
See Impact Study, Part II, section 7. 
See Comparative Study, pp. 1-88 to 1-91.  
See Comparative Study, pp. 1-51 to 1-53 and 1-107. 
See Impact Study, Part II, section 4. 
See Comparative Study, pp. 1-81 to 1-88 and 1-113 to 1-114.  

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economic assessments in many antitrust cases) amplifies the chilling effect of the 
other obstacles described.58  

2.4. 

Need for EU action in view of the likely evolution of the problem 

52. 

53. 

54. 

58 
59 
60 
61 

62 
63 

The problems described above and the overall ineffectiveness of the legal framework 
for  antitrust  damages  actions  are  not  new.  Member  States  have  been  required  to 
guarantee the effectiveness of EC competition rules since the EC Treaty entered into 
force.  In  2001  the  Court  of  Justice  explicitly  recalled  that,  in  the  absence  of 
Community  rules,  this  includes  the  obligation  for  Member  States  to  provide  for 
effective remedies under their rules of civil law and procedure to safeguard the right 
of  all  victims  to  compensation  for  harm  suffered  as  a  result  of  antitrust 
infringements. Nonetheless, to date little progress has been made in the vast majority 
of Member States.  

Since  the  Commission’s  Green  Paper,  there  has  been  some  increase  in  reports  of 
attempts  by  victims  to  claim  damages  before  civil  courts,  some  of  which  were 
successful.59 Besides greater awareness on the part of victims of their entitlement to 
damages,  as  confirmed  by  the  Court  of  Justice,  this  increase  in  the  number  of 
lawsuits  appears  to  be  partly  due  to  certain  legislative  developments  in  some 
Member States60 and also to the emergence of new strategies designed to circumvent 
some of the traditional obstacles in antitrust damages cases.61 However, monitoring 
of  developments  by  the  Commission  and  the  findings  of  the  Impact  Study62  show 
that  successful  damages  actions  are  still  scarce,  that  in  many  Member  States  the 
problems identified in the Green Paper remain essentially unchanged and that there 
is, therefore, still a clear need to improve the conditions for effective compensation 
of victims for harm suffered as a result of infringements of competition law. 

As mentioned earlier, in recent years a small number of Member States have enacted 
legislation  aimed  at  facilitating  antitrust  damages  cases.63  However,  such  isolated 
initiatives  by  Member  States  cannot  be  expected  to  be  capable  of  effectively  and 
fully remedying the root causes of the problem. First, there is no indication that any 
sizeable  number  of  other  Member  States  are  likely  to  introduce,  in  the  foreseeable 
future, legislative changes that will ensure an effective legal framework for damages 
actions  brought  by  victims  of  antitrust  infringements.  Second,  by  nature,  isolated 
initiatives  by  Member  States  cannot  ensure  that  a  consistent  minimum  level  of 
effective protection of victims’ entitlement to damages under Articles 81 and 82 will 
be  achieved  in  every  Member  State.  Nor  will  they  be  able  to  provide  a  more  level 

On the issue of damages, see Comparative Study, pp. 1-93 to 1-97 and 1-116 to 1-118. 
See Impact Study, Part I, section 1.  
See below. 
E.g.  companies  purchasing  claims  for  compensation  and  pursuing  these  claims  in  their  own  name 
before civil courts.  
See Impact Study, Part I, section 1.  
For  example,  the  7th  amendment  to  the  German  Act  against  Restraints  of  Competition,  in  2005, 
introduced  a  range  of  provisions  aimed  at  improving  the  conditions  for  damages  actions,  particularly 
those  following  a  decision  by  the  competition  authority.  Also,  the  UK  Enterprise  Act,  in  force  since 
2003, extended the jurisdiction of the specialised Competition Appeal Tribunal (CAT) to hear damages 
claims following a decision of the Office of Fair Trading or the European Commission. It also allows a 
damages claim to be brought before the CAT by a representative body on behalf, and with the consent, 
of two or more consumers.  

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playing  field  for  businesses  or  to  reduce  the  uncertainty  created  by  the  current  big 
differences between the national legal systems. Third, even the Member States which 
have  completed  the  most  comprehensive  reforms  have  not  addressed  all  the  issues 
identified in the Green Paper and the accompanying Staff Working Paper.64 Finally, 
the  interaction  between  measures  facilitating  private  enforcement  of  competition 
rules and various aspects of public enforcement needs to be addressed, for instance 
the  operation  and  protection  of  the  Commission’s  and  Member  States’  leniency 
programmes.  Individual  action  by  Member  States  does  not  seem  capable  of 
achieving this in any consistent manner. 

55. 

These  issues  will  be  addressed  further  in  the  discussion  of  the  principles  of 
subsidiarity and proportionality in section 6.3, as the relevant considerations and the 
evaluation  depend  very  much  on  the  specifics  of  the  policy  option  chosen. 
Nonetheless, at this stage it can already be noted that any solution that is to remedy 
the main aspects of the problem identified effectively will, most likely, require some 
form of action coordinated at EU level.  

64 

For  instance,  the  Office  of  Fair  Trading  recently  recommended  that  the  UK  Government  should,  in 
particular,  conduct  consultations  on  whether  (and,  if  so,  how  best)  to  allow  representative  bodies  to 
bring  stand-alone  and  follow-on  representative  actions  for  damages  or  injunctions  on  behalf  of 
businesses  and  consumers  in  competition  law.  It  also  recommended  that  representative  actions  on 
behalf  of  the  victims  at  large  should  be  allowed.  In  order  to  protect  the  success  of  its  leniency 
programme,  the  OFT  suggested  the  possibility  of  removing  leniency  applications  from  disclosure  to 
civil parties and removing leniency applicants from joint and several liability. See: “Private actions in 
competition law: effective redress for consumers and business – Recommendations from the Office of 
Fair Trading”, available at: http://www.oft.gov.uk/shared_oft/reports/comp_policy/oft916resp.pdf. 

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21 

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3. 

56. 

OBJECTIVES − THE “WHAT” 

This  section  sets  out  the  general  policy  objective  pursued,  along  with  several  more 
specific  underlying  objectives.  Based  on  these  objectives,  section  5.1  sets  out  and 
explains  a  set  of  specific  assessment  criteria  that  make  it  possible  to  measure,  in 
qualitative terms, to what extent the various policy options considered are capable of 
contributing to achieving the general and specific objectives pursued. 

3.1. 

General objective 

57. 

58. 

59. 

60. 

61. 

The  general  objective  of  this  policy  initiative  is  to  ensure  that  victims  of 
infringements of EC competition law have access to truly effective mechanisms for 
obtaining full compensation for the harm they suffered.  

Victims  of  infringements  of  EC  competition  law  have  a  right  to  compensation 
conferred by the EC Treaty. However, to date, as underlined in section 2, the current 
legal  framework  in  which  actions  for  antitrust  damages  are  brought  makes  it 
considerably  difficult  for  victims  to  enforce  their  right.  By  pursuing  this  objective, 
the  Commission  wishes  to  guarantee,  in  every  Member  State,  certain  minimum 
common  standards  allowing  victims  effectively 
to  claim,  and  obtain,  full 
compensation from the infringers of the EC competition rules.  

Today,  the  often  very  remote  possibility  of  having  to  compensate  for  the  harm 
caused  by  infringements  of  the  EC  competition  rules  poses  no  credible  risk  to 
wrongdoers. Rendering the right to compensation more effective will therefore create 
additional  deterrence.  Effective  legal  remedies  will  also  enhance  the  incentives  for 
infringers,  when  caught,  to  settle  out  of  court  with  the  victims  and,  consequently, 
improve the quality of settlements for the victims.  

Achieving this objective of more effective compensation will ensure that the costs of 
infringements of competition law are borne by the infringers, and not by the victims, 
by  compliant  businesses  and,  indirectly,  by  society  as  a  whole.  This  is  in  line  with 
the competitiveness objectives for the EU. 

Since the primary objective pursued is full compensation of victims, the damages to 
be  awarded  should  not  influence  the  level  of  fines  imposed  by  competition 
authorities in their public enforcement activities, nor under any future framework of 
enhanced private actions. Public fines and purely compensatory damages serve two 
distinct objectives that are complementary: the main objective of public fines (and of 
potential criminal sanctions) is to deter not only the undertakings concerned (specific 
deterrence)  but  also  other  undertakings  (general  deterrence)  from  engaging  or 
persisting in behaviour contrary to Articles 81 and 82. The main objective of private 
damages  is  to  foster  corrective  justice  by  repairing  harm  caused  to  individuals  or 
businesses. Of course, as mentioned earlier, this by no means precludes that effective 
systems for provision of damages also have positive side-effects on deterrence.  

62. 

Given  these  different  functions  and  primary  objectives,  in  all  Member  States  the 
level of civil damages (to the extent that they are intended to compensate victims) is 
independent of whether or not any public fines (or criminal sanctions) have been or 

EN 

22 

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are likely to be imposed, and the level of public fines is independent of whether or 
not any civil damages have been or are likely to be awarded.  

63. 

Whilst  courts  are  specialised  and  equipped  to  adjudicate  in  individual  disputes 
between  private  parties,  e.g.  over  payment  of  compensation,  public  enforcement 
authorities, by contrast, are not in a position to award damages to victims. They are 
neither  empowered  nor  equipped  to  investigate  and  calculate  the  harm  suffered  by 
each individual victim and to determine the amount to be distributed to individuals as 
compensation. The task of competition authorities is to focus on the public interest, 
not on the interest of individuals. Requiring competition authorities to do the latter, 
would pose a risk of blurring their role and function. 

64. 

In  view  of  the  foregoing,  the  Commission  considers  that  enhanced  private  actions 
cannot  and  should  not  be  intended  to  replace  public  enforcement  and  that  public 
enforcement cannot and should not replace awards of civil compensation to victims.  

3.2. 

Specific objectives 

65. 

Given the variety of factors which contribute to the difficulties which victims have in 
obtaining  compensation,  the  general  objective  of  full  compensation  can  be  broken 
down  into  more  specific  objectives.  These  specific  objectives  will  allow  a  more 
systematic and thorough assessment of whether the general objective is fulfilled.  

•  Full compensation 

–  Ensuring  full  compensation  for  the  entire  harm  suffered:  attainment  of  this  objective 
requires  no  under-compensation  of  any  victim.  In  particular,  the  damage  awards  should 
include pre-judgment interest in order to compensate the victims for the real value of the 
harm suffered.  

–  While  avoiding  over-compensation:  measures  put  forward  as  a  result  of  this  initiative 

should not lead to victims receiving damages higher than the entire loss suffered.  

•  Greater  awareness  of  the  rules  and  deterrence,  increased  enforcement  and  improved 

compliance, to the benefit of Europe’s competitiveness 

–  Improving compliance with the rules and deterrence: EC competition rules are a matter of 
public order and greater compliance will be achieved by rendering more credible the risk 
that  infringers  will  have  to  compensate  the  victims  and,  in  particular,  by  increasing  the 
probability both of civil suits being brought and of infringements being detected. 

–  Increasing  victims’  awareness  of  their  entitlement  to  damages  and  of  the  conditions  for 

bringing a claim to court. 

–  Increasing  (potential)  wrongdoers’  awareness  of  the  rules  governing  actions  for  damages 

and clarifying the conditions for their liability. 

–  Reinforcing  European  competitiveness  by  means  of  greater  compliance  with  the  EC 

competition rules. 

–  At  the  same  time,  avoiding  that  the  policy  leads  to  over-deterrence,  where  the  risk  of 
claims  for  damages  prevents  undertakings  from  engaging  in  lawful  conduct  or  where 

EN 

23 

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damages are to be paid by undertakings which have engaged in lawful conduct or where 
such  companies  face  high  costs  to  defend  themselves  against  unmeritorious  claims.  The 
principle of proportionality must be observed. 

•  Access to justice 

–  Guaranteeing effective access to the courts for all victims, including those with scattered 

low-value damages, such as consumers. 

–  Ensuring that potentially high costs do not deter victims from bringing their claims.  

–  Facilitating  access  to  the  relevant  facts  and,  hence,  the  truth  in  a  case,  in  particular 

overcoming information asymmetry in terms of evidence.  

–  Putting in place the conditions ensuring that meritorious claims can effectively be brought, 

and be successful, despite the complexity of antitrust damages cases.  

–  At the same time, putting in place the conditions to avoid abusive litigation and ensuring 

that unmeritorious claims do not lead to the award of damages. 

•  Appropriate and efficient use of the judicial system  

–  Streamlining handling of antitrust damages cases by the courts by means of economies of 

scale, in particular by joining or grouping identical or similar claims. 

–  Reducing  the  costs  of  litigation  by  improving  the  conditions  for  settlements:  settlements 
are  cost-efficient  and,  when  possible,  are  to  be  preferred  to  court  actions.  However,  as 
settlements  are  voluntary,  attainment  of  this  objective  presupposes  the  existence  of  a 
credible  court  alternative  if  no  settlement  is  reached.  The  credible  court  alternative  will 
also serve as a benchmark leading to improvement of the quality of the settlements. 

–  Limiting procedural abuses: while the victims should have better access to the courts, it is 
important  that  law-abiding  undertakings  do  not  bear  the  costs  and  burden  of  abusive 
litigation. It is therefore necessary to have appropriate safeguards to prevent such abuses. 

–  Limiting the risk of multiple litigation on identical or similar issues: relitigation of issues 
already  settled  would  entail  unnecessary  costs  and  delays  plus  the  risks  of  a  diverging 
outcome. As far as possible, relitigation should therefore be avoided. 

•  A  more  level  playing  field  and  increased  legal  certainty  for  businesses  operating 

throughout Europe 

–  Ensuring a more level playing field in Europe: attainment of this objective will ensure that 
businesses  across  Europe  compete  on  an  equal  footing  and  that  European  citizens  and 
undertakings  can  enforce  their  rights  conferred  by  the  EC  Treaty  equally  throughout 
Europe.  

–  Increasing  legal  certainty  for  businesses:  businesses  operating  throughout  Europe  will 
benefit from increased legal certainty as a result of setting minimum common standards for 
their liability for infringements of competition law.  

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24 

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–  At the same time, respecting national legal traditions and values: a more level playing field 
should  not  be  achieved  without  taking  due  account  of  the  national  legal  systems  and  the 
balance struck over time by each Member State in its national rules. 

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25 

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4. 

POLICY OPTIONS − THE “HOW” 

4.1. 

Identifying the policy options to be assessed  

66. 

In  order  to  determine  whether,  and  if  so  to  what  extent,  it  is  appropriate  to 
recommend  specific  measures  in  the  White  Paper,  the  Commission  considered  the 
benefits  and  costs  of  a  wide  range  of  potential  policy  options.  These  are  not  only 
specific  options  identified  in  the  Commission’s  Green  Paper  but  also  options  that 
emerged during the subsequent consultations and discussions. The Commission did 
not consider it appropriate, at the stage of preparing a White Paper, to concentrate on 
one  narrow  policy  approach  and  to  analyse  only  variations  thereon  in  the  impact 
assessment.  Instead,  the  Commission  believes  that  it  is  important  to  assess  the  full 
spectrum  of  possible  options,  ranging  from  introduction  in  Europe  of  legislative 
measures that would provide for a system similar to the one applied in countries with 
highly developed private enforcement of competition rules creating incentives at one 
end  to  the  zero  option  of  taking  no  EU  action  at  all  (be  it  legislative  or  non-
regulatory) at the other. 

67. 

Given the diverse causes for the current ineffectiveness of antitrust damages actions, 
the  policy  options  assessed  in  this  report  consist  of  bundles  of  several  specific 
measures  that  address,  to  different  degrees,  individual  issues  such  as  access  to 
evidence,  collective  redress,  passing-on,  costs,  etc.  These  bundles  of  specific 
measures are referred to as “Policy Options”.  

4.1.1.  Method  for  identifying  and  grouping  the  individual  measures  into  bundles  to  form 

Policy Options 

68. 

69. 

Each  Policy  Option  (i.e.  bundle)  and  its  constituent  parts  reflect  a  common  policy 
line, a similar degree of stringency and a comparable level of regulatory intervention. 
In  other  words,  individual  measures  from  the  wide  spectrum  have  been  grouped 
together,  with  the  result  that  the  Policy  Options  analysed  themselves  range  over  a 
wide  spectrum  of  possible  policy  lines  and  levels  of  regulatory  intervention.  To 
illustrate this, at one end of the spectrum a Policy Option was selected that pursues 
the policy of creating maximum incentives for claimants to bring damages actions by 
means of far-reaching legislative changes to the existing civil law systems. Towards 
the other end, another Policy Option aims at facilitating damages actions to a lesser 
degree  and  envisages  achieving  this  by  purely  non-regulatory  means.  The  most 
conservative Policy Option is, obviously, “no action at EU level”. 

In the first step, five Policy Options − each comprising a set of individual measures 
each pursuing a comparable policy line and relying on a similar level of regulatory 
intervention − are assessed (see section 5). Assessment of these bundles of measures 
by no means precludes that, during this impact analysis, individual measures within 
these  bundles  might  be  identified  as  appropriate  for  inclusion  in  a  new  bundle  that 
would  ultimately  become  the  Preferred  Option.  Indeed,  in  this  case  the  balance  of 
positive  and  negative  impacts  of  the  five  Policy  Options  initially  analysed  did  lead 
the  Commission  to  the  conclusion  that  one  of  these  Policy  Options  is  preferable  to 
the others, but still shows room for improvement, in the form of adjusting some of its 
individual  measures  in  order  to  obtain  the  desired  results  most  effectively  at  the 
lowest possible cost (see sections 6.1.1 and 6.1.2). In the second step, the Preferred 

EN 

26 

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Option identified in this way is then subjected to the same full impact assessment as 
the five Policy Options initially analysed. This will allow an overall comparison and 
illustration  of  the  impact  of  each  of  the  options  analysed.  The  Preferred  Option  is 
therefore subjected to the same steps of impact assessment as the other options. The 
two-step  analysis  is  therefore  primarily  a  question  of  presentation  and  order  of 
analysis.  The  purpose  is  to  show  that  the  Commission  has  assessed  bundles  of 
measures pursuing a common policy line and similar level of regulatory intervention 
but is also open to consider a combination of measures from different bundles.  

4.1.2. 

Individual measures not included in the Policy Options analysed 

70. 

71. 

Although  not  every  individual  measure  considered  in  the  Green  Paper  could  be 
included  in  the  Policy  Options  analysed  in  this  report,  all  those  measures  which 
received  strong  support  from  stakeholders  during  the  consultation  process  are 
covered. The specific measures were selected and grouped into a Policy Option first 
on the basis of the detailed qualitative assessment of individual measures contained 
in  the  Impact  Study  and  the  results  of  the  consultation  process  and,  second,  with  a 
view  to  achieving  a  consistent  overall  policy  line  within  each  Policy  Option.65 
Specific measures that are incompatible with Community law in the light of existing 
case  law  were  discarded  from  the  Policy  Options  at  an  early  stage.  This  primarily 
concerned  the  issue  of  legal  standing  to  sue.66  In  this  context,  some  advocate 
concentrating  damages  actions  on  the  level  of  direct  purchasers  (i.e.  the  direct 
customers  of  the  company  infringing  competition  law)  and  denying  indirect 
purchasers  (customers  further  down  the  distribution  chain)  the  right  to  sue  for  any 
harm they may have suffered (indirectly) as a result of an antitrust infringement. In 
this  respect,  the  Court  of  Justice  has  made  it  clear  that  “any  individual”  must  have 
the  right  to  seek  “compensation  for  the  harm  suffered  where  there  is  a  causal 
relationship  between  that  harm  and  an  agreement  or  practice  prohibited  under 
Article 81  EC”.67  As  a  result,  the  option  of  excluding  indirect  purchasers  from 
standing to sue has not been included.  

Another  possibility  considered  was  to  discard  from  the  outset,  for  reasons  of  legal 
compatibility, inclusion of multiple damages in any of the Policy Options. Multiple 
(punitive)  damages  (as  opposed  to  purely  compensatory  damages)  raise  serious 
issues as regards their compatibility with the public policy and/or basic principles of 
tort  law  in  many  Member  States.68  Under  Community  law,  the  existence  of 
exemplary  or  punitive  damages  in  Member  States  may  be  acceptable  as  the  Court 
clarified  in  its  Manfredi  judgment  that  “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”69  (however,  this  does  not  imply  that  such  particular  damages  should  be 
introduced  in  every  Member  State).  Therefore,  with  a  view  to  subjecting  the  full 
spectrum of possible (and sometimes supported) solutions to an impact assessment, it 

65 
66 

67 
68 
69 

See Impact Study, Part II.  
Standing to sue means the entitlement given by a legal system to an individual or group to bring legal 
proceedings before a court. 
Joined Cases C-295/04 to C-298/04, Manfredi (see footnote 14), paragraph 61. 
See Impact Study, Part II, section 1.6.2.  
Joined Cases C-295/04 to C-298/04, Manfredi (see footnote 14), paragraph 93. 

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was decided not to discard a priori double damages from the Policy Options, without 
ignoring that in some Member States there are legal objections to punitive damages. 
Particular attention was therefore paid to assessing the feasibility under national law 
and  the  impact  of  such  measures  (see  the  tables  in  section  5  under  the  heading 
“implementation costs”). 

72. 

Finally, it should be recalled that introducing higher fines for infringers or criminal 
sanctions on executives involved are no means of achieving the primary objective of 
this policy, namely more effective compensation of victims. Such measures may act 
as a stronger deterrent for potential infringers and, thereby, have the positive effect of 
limiting  the  number  of  victims  suffering  from  breaches  of  EC  competition  law. 
However,  they  will  contribute  nothing  to  repairing  the  harm  suffered  by  victims  of 
(undeterred) antitrust infringements, who will remain uncompensated in the absence 
of measures enhancing the effectiveness of private actions for damages such as those 
proposed in the various Policy Options.  

4.1.3.  Measures regarding interaction with public enforcement 

73. 

Finally, due to the policy consideration of avoiding possible negative consequences 
for public enforcement as a result of any system of enhanced actions for damages, all 
the Policy Options (except the zero action option) contain the same two measures in 
this respect: protection from disclosure of corporate statements made in the context 
of  leniency  programmes  and  limitation  of  civil  liability  on  the  part  of  successful 
immunity applicants to their direct or indirect contractual partners. As a result of the 
latter measure, 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  (“direct  contractual  partners”)  and  those  further  down 
the  supply  chain  who  bought  the  same  products  or  services  (directly  or  via 
intermediaries) from the direct contractual partners (“indirect contractual partners”). 
As a consequence, the immunity recipient would not be held liable for the damages 
attributable to cartelised products or services sold by co-cartelists. 

74. 

Other forms of impact that some measures may have on public enforcement are taken 
into  account  wherever  they  are  likely  to  lead  to  appreciable  costs,  in  particular, 
litigation  costs  and  administrative  burden  for  competition  authorities  (see  also 
section 5.3).  

4.1.4.  Provision of non-binding assistance for quantification of damages 

75. 

The Policy Options described below relate to possible measures to be included in the 
White Paper. It should be noted that, alongside the White Paper, the Commission is 
also  considering  providing  pragmatic,  non-binding  assistance  in  the  difficult  task 
(often  on  economic  grounds)  of  quantifying  damages  in  antitrust  cases,  for  the 
benefit of both national courts and the parties. 

4.2. 

Description of the Policy Options assessed  

76. 

Based  on  the  considerations  set  out  above,  the  Commission  focused  on  the  Policy 
Options  described  below  as  the  most  likely  potential  policy  choices  in  view  of  the 
current  ineffectiveness  of  antitrust  damages  actions.  At  one  end  of  the  spectrum, 
Policy  Option  1  envisages  legislative  measures  providing  for  maximum  facilitation 
and incentives for damages claims while, at the other, Policy Option 5 envisages the 

EN 

28 

   EN 

scenario of zero EU action, either legislative or non-regulatory. Table 1 provides an 
overview of all five Policy Options and their main components.  

4.2.1.  Policy  Option  1:  legislative  measures  maximising  facilitation  of  claims  and 

incentives for victims  

77. 

78. 

79. 

70 

71 
72 

73 
74 

75 

Policy Option 1 envisages a set of legislative measures70 that would not only remove 
almost  all71  the  recognised  obstacles  to  effective  antitrust  damages  actions  but  also 
introduce  strong  incentives  for  claimants  to  bring  an  action.  This  approach  is 
characteristic  of  countries  which  rely  strongly  on  damages  actions  to  perform  a 
deterrent  function  in  the  public  interest.  To  set  such  incentives,  Policy  Option  1 
groups together measures that include, first, the availability of double damages for all 
types of infringement of Articles 81 and 82. As damages, in a European context, are 
understood  as  also  covering  payment  of  interest  accrued  since  the  damage 
occurred,72  double  damages  can  be  as  much  as  three  times  as  high  as  damages  in 
countries where no pre-judgment interest is awarded.73 Introducing double damages 
for every type of infringement would not only create an incentive for victims to bring 
a  claim,  but  also  contain  a  punitive  element  aimed  at  increasing  deterrence  of 
infringers.  

Beyond that, Policy Option 1 provides for “opt-out” class actions74 allowing a small 
number  of  victims  to  sue  and  claim  damages  for  the  entire  group  they  belong  to, 
except for victims who decide not to be included in the class. It would also introduce 
mandatory  one-way  fee-shifting,  so  that  the  claimant  would  never  be  liable  for  the 
defendant’s costs, regardless whether the claimant loses or wins the case, unless the 
claim was frivolous or vexatious.  

The  rules  on  disclosure  would  provide  for  very  broad  access  to  evidence:  the 
claimant  would  be  allowed  to  request  any  relevant  document  from  the  defendant 
once he has passed the relatively low threshold of notice pleading.75 Concerning the 
issue of passing-on and claims by indirect purchasers, the passing-on defence would 
be excluded in order to provide an additional incentive for direct purchasers to sue, 
while  indirect  purchasers  would  nonetheless,  for  legal  reasons  (see  above),  still  be 
allowed to claim damages if they can show that they have suffered harm caused by 
the infringement.  

The choice of the most appropriate of the possible EC legislative instruments (i.e. the choice between a 
regulation, a directive or a combination of both) will ultimately depend on (i) the exact content of the 
Commission  proposal,  (ii)  the  legal,  economic  and  political  context  at  the  time  when  the  proposal  is 
made and (iii) the degree to which a level playing field in the EU is considered necessary or desirable.  
Except for indirect purchasers, see below. 
See Joined Cases C-295/04 to C-298/04, Manfredi (see footnote 14), paragraph 97 and Case C-271/91, 
Marshall [1993] ECR I-4367, paragraph 31. 
See Impact Study, Part I, section 6 and Part II, section 4.2.4. 
An opt-in collective action is a form of collective redress whereby only those who explicitly agreed to 
join  the  collective  action  are  bound  by  the  eventual  judgment  or  settlement.  An  opt-out  collective 
action,  by  contrast,  is  one  where  all  members  of  a  group  are  bound  by  an  eventual  judgment  or 
settlement, unless they explicitly declare otherwise (“opt out”).  
“Notice pleading” differs from “fact pleading” in that claimants must give only enough information to 
suggest  that  they  have  a  plausible  case,  as  opposed  to  setting  out  in  detail  the  facts  of  their  case  and 
describing the relevant means of evidence. 

EN 

29 

   EN 

                                                 
80. 

81. 

In  civil  actions  following  a  decision  by  a  competition  authority,  Policy  Option  1 
would  avoid  costly  and  time-consuming  relitigation  by  rendering  the  findings  of  a 
national competition authority in the EU (if not appealed against or if confirmed on 
appeal) binding on civil courts.76 Similarly, Policy Option 1 would provide for strict 
liability once an infringement of Article 81 or 82 has been established. This means 
that in these cases claimants would not have to prove separately negligence or intent 
on the part of the infringer. Claims for antitrust damage would be time-barred only 
after  a  relatively  long  limitation  period  of  twenty  years  from  the  occurrence  of  the 
harm  or,  if  the  claimant  could  reasonably  have  been  aware  of  his  right  to 
compensation, five years as of that moment.  

With  the  aim  of  avoiding  the  risk  that  enhanced  damages  actions  might  have  a 
negative impact on public enforcement activities and, in particular, the functioning of 
leniency  programmes,  Policy  Option  1  suggests  two  measures:  protection  from 
disclosure of corporate statements made in the context of leniency programmes and 
limitation  of  civil  liability  on  the  part  of  the  successful  immunity  applicant  to  his 
direct and indirect contractual partners. 

4.2.2.  Policy Option 2: substantial facilitation and partial incentives for damages claims by 

means of legislative measures 

82. 

83. 

84. 

to  effective  antitrust  damages  actions 

Policy  Option  2  envisages  a  range  of  legislative  measures77  addressing  the 
recognised  obstacles 
less  far-
reaching/radical  manner  than  Policy  Option  1.  Also,  in  terms  of  encouraging 
claimants to bring an action, Policy Option 2 differs from Policy Option 1 in that it 
offers  a  much  smaller  number  of  incentives:  double  damages  would  be  introduced 
only  for  cartels  as  they  are  hardcore  infringements,  whereas  for  other  types  of 
infringement  damages  would  be  limited  to  compensation  for  the  full  harm  suffered 
(including  pre-judgment  interest).  The  rule  that  the  losing  party  pays  the  costs, 
prevalent in the EU, would remain, but be made subject to the courts’ discretionary 
power to shift costs to the defendant, e.g. where − in meritorious cases − there is a 
marked asymmetry in the financial resources of the parties.  

in  a 

The collective action mechanism under Policy Option 2 would not take the form of 
an  “opt-out”  class  action,  but,  instead,  of  “opt-in”  collective  action,  where  only 
victims who have decided to join the group seeking compensation are included in the 
action. This collective redress mechanism would be supplemented by representative 
action,  where  a  qualified  representative  body,  such  as  a  consumer  association  or 
trade  association,  claims  damages  for  the  harm  caused  to  the  interests  of  those  it 
represents. 

Disclosure of documents would be broad and follow an initial exchange between the 
parties  of  lists  indicating  all  relevant  evidence,  but  only  after  the  claimant  has 
presented reasonably available facts and evidence in support of the allegations (fact 
pleading). With regard to the passing-on defence and claims by indirect purchasers, 
both  offensive  and  defensive  use  of  the  passing-on  argument  by  claimants  and 
defendants  would  be  permitted.  In  the  case  of  claims  by  indirect  purchasers,  a  risk 
allocation  rule  would  apply,  facilitating  proof  of  passing-on  for  the  downstream 

76 
77 

Decisions of the European Commission are already binding under current law (see section 2.3). 
See footnote 70.  

EN 

30 

   EN 

                                                 
85. 

victim. As regards the requirement in several countries’ national law that fault on the 
part  of  the  infringer  needs  to  be  proven  by  the  victim,  Policy  Option  2  would 
introduce  a  presumption  of  fault  that  can  be  rebutted  if  the  infringer  can  show  that 
the breach of competition rules was due to an excusable error. 

As in Policy Option 1, decisions of all national competition authorities would have 
binding effect across the EU. The limitation period would be set at five years from 
the  date  on  which  the  claimant  should  reasonably  have  been  aware  of  the  harm 
(subjective standard). If public proceedings are initiated, a new limitation period of 
two  years  would  begin  on  conclusion  of  the  proceedings  (including  any  appeals).78 
With  the  aim  of  avoiding  the  risk  that  enhanced  damages  actions  might  have  a 
negative impact on public enforcement activities and, in particular, the functioning of 
leniency  programmes,  Policy  Option  2  also  suggests  the  same  two  measures: 
protection  from  disclosure  of  corporate  statements  made  in  the  context  of  leniency 
programmes  and  limitation  of  civil  liability  on  the  part  of  the  successful  immunity 
applicant to his direct and indirect contractual partners. 

4.2.3.  Policy Option 3: moderate facilitation by means of more limited legislative measures 

86. 

87. 

88. 

78 

79 
80 

81 

Policy Option 3 is aimed at addressing the most significant obstacles to an effective 
system of damages claims by means of legislative measures79 of more limited scope, 
but  not  at  offering  further  incentives  for  claimants  to  bring  a  case.  Under  Policy 
Option  3,  only  single  damages  would  therefore  be  available,  with  pre-judgment 
interest.  Once  claimants  have  passed  the  threshold  of  fact  pleading  (see  paragraph 
84)  that  can  reasonably  be  required  in  the  circumstances,  access  to  evidence  in  the 
hands  of  the  other  party  would  be  available.  To  avoid  overly  broad  disclosure, 
claimants would have to identify specific categories of evidence to be disclosed and 
courts would monitor the proportionality of the request for disclosure.  

As  regards  the  requirement  of  fault,  Policy  Option  3  would  introduce  a  rule  that 
establishment  of  the  infringement  strongly  suggests  the  existence  of  at  least 
negligence on the part of the infringer.  

As in Policy Option 2, both claimants and defendants could fully avail themselves of 
the passing-on argument. Discretionary fee-shifting by the court would be possible, 
although  only  for  a  portion  of  the  legal  costs.80  Decisions  of  national  competition 
authorities would be binding only on the courts of the Member State whose authority 
issued the decision. In terms of collective redress, only representative actions would 
become available. The limitation period under Policy Option 3 would be five years 
from the date on which the claimant should reasonably have been aware of the harm. 
In the event of public proceedings, the limitation period would be suspended pending 
a final decision and any appeals.81 With the aim of avoiding the risk that enhanced 

In this context, the date of conclusion of public proceedings would be the date on which the claimant 
can reasonably be expected to have knowledge of the decision.  
See footnote 70.  
The discretionary power of the court extends to both the possibility and the scope of this portion; the 
court’s  decision  partially  to  shift  costs  can  be  based  on  considerations  linked  to  the  limited  financial 
resources of the victim, creation of unnecessary procedural costs by one party, the novelty of the legal 
issue at stake, etc. 
As in Policy Option 2, the date of termination of the public proceedings would be the date on which the 
claimant can reasonably be expected to have knowledge of the decision.  

EN 

31 

   EN 

                                                 
damages actions might have a negative impact on public enforcement activities and, 
in particular, the functioning of leniency programmes, Policy Option 3 suggests two 
measures: protection from disclosure of corporate statements made in the context of 
leniency  programmes  and  limitation  of  civil  liability  on  the  part  of  the  successful 
immunity applicant to his direct and indirect contractual partners. 

4.2.4.  Policy Option 4: moderate facilitation by means of non-regulatory measures  

89. 

90. 

Policy  Option  4  can  be  dubbed  the  “non-regulatory  approach”  as  it  entails  no 
legislative measures at EU level. Instead, this option would identify, mainly from the 
experience  in  Member  States,  a  range  of  useful  solutions  and  best  practices,  which 
would be recommended to all Member States for consideration for implementation in 
their own legal systems.  

Under Policy Option 4, the same individual rules (e.g. on collective redress, passing-
on and access to evidence) would be envisaged as under Policy Option 3, although 
level,  but  as  non-binding 
not  as 
recommendations. Policy Option 4 therefore relies, to a large extent, on the Member 
States to carry out the action suggested. 

legislative  measures  at  Community 

4.2.5.  Policy Option 5: zero action at EU level (baseline option) 

91. 

The fifth and final option − as the baseline option − entails taking no action at all at 
EU  level  with  regard  to  antitrust  damages  actions.  It  is  possible  that  further 
developments  could  arise  as  a  result  of  Community  action  in  other  areas,  such  as 
consumer protection. Unilateral action by Member States in this or other areas, along 
with interpretations of Community law by the Court of Justice, could also affect the 
status  quo  with  regard  to  damages  claims.  For the  foreseeable  future,  however,  the 
Commission  would  refrain  from  proposing  any  legislation  or  non-regulatory 
measures  specific  to  antitrust  damages  actions  in  Europe.  The  assessment  of  the 
impact of Policy Option 5 examines the status quo and any developments considered 
likely without any EU action. 

Table 1: Overview of the Policy Options analysed 

Option 1:  

Option 2:  

Option 3:  

Option 4:  

Option 5:

Damages  

Double, all types of damage, 
including interest 

Double for cartels; for rest full 
single (i.e. all types of 
damage, including interest) 

Full single 

Access to 
evidence 

Broad disclosure, low 
threshold 

Initial provision of lists + 
broad disclosure, both based 
on fact-pleading threshold 

Disclosure of specified 
categories, based on fact-
pleading and proportionality 

No EU 
action at 
all 

No legislative 
measures, only 
identification and 
recommendation 
of good practices 
in line with Option 
3 

Indirect 
purchaser  

Standing allowed  

Standing allowed  

Standing allowed 

Passing-on  

Defence excluded  

Defence allowed; facilitation 
of proof of pass-on in favour 
of indirect purchaser  

Defence allowed  

Effect of NCA 
decisions 

EN 

Binding across EU 

Binding across EU 

Binding in own Member State 

32 

   EN 

 
Fault (once 
infringement 
established) 

Strict liability 

Rebuttable presumption; 
exoneration for excusable 
errors  

Strong probative value of 
finding of infringement 

Collective 
redress 

Limitation 
period 

Opt-out class actions 

Opt-in collective + 
representative actions 

Representative actions 

20 years as of damage or 
5 years as of reasonable 
knowledge 

Minimum 5 years as of 
reasonable knowledge + 
restart + two years 

Minimum 5 years as of 
reasonable knowledge + 
suspension 

Cost rule 

One-way shifting 

Loser pays, but judge may 
shift all costs 

Loser pays, but judge may 
shift part of costs 

Interaction with 
leniency 

Protection of corporate 
statements from disclosure; 
limitation of liability on the 
part of successful immunity 
applicant 

Protection of corporate 
statements from disclosure; 
limitation of liability on the 
part of successful immunity 
applicant 

Protection of corporate 
statements from disclosure; 
limitation of liability on the 
part of successful immunity 
applicant 

EN 

33 

   EN 

5. 

ANALYSIS OF IMPACT 

5.1. 

Assessment criteria 

92. 

A  multi-criteria  analysis  was  used  to  assess  and  compare  the  impact:  each  Policy 
Option  was  assessed  against  a  set  of  criteria  relating  to  different  potential  benefits 
and costs. These are explained in more detail below (see section 5.1.1 for potential 
benefits  and  section  5.1.2  for  potential  costs).  Because  of  the  non-availability  of 
statistics,  it  is  not  possible  to  quantify  the  likely  impact  of  each  Policy  Option  in 
monetary terms. Therefore, for each Policy Option, the impact expected in respect of 
a range of potential benefits and costs has been assessed in qualitative terms. 

5.1.1.  Benefits 

a. 

93. 

94. 

95. 

b. 

96. 

Ensuring full compensation of the entire harm suffered  

Though an important assessment criterion, the degree to which this specific objective 
is considered achieved will largely coincide with the degree to which a given Policy 
Option allows victims of an infringement of competition law to bring an action and 
enables  them  to  prove  the  infringement,  the  harm  and  the  causal  link  between  the 
two. Once those hurdles are cleared, little room for manoeuvre is left as regards the 
scope of the damages award, in the light of the Manfredi judgment of the Court of 
Justice.  

According  to  this  judgment,  “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.”82 Any award of damages that would not fully 
compensate  for  the  entire  harm  falling  within  the  scope  of  this  judgment  would 
therefore violate the principle of effectiveness. 

Since the objective is full compensation for the entire harm suffered, Policy Options 
will score lower on this criterion to the extent that they are likely to lead to under- or 
over-compensation of the claimant. Claimants are under- or over-compensated when 
they  receive  less  or  more  damages  than  the  harm  actually  suffered.  The  latter  is  a 
fortiori  the  case  if  the  claimant  receives  damages  but  has  suffered  no  harm 
whatsoever. Since full compensation in the greatest possible number of cases is the 
first and foremost objective, good scores on achieving the goal of full compensation 
will  weigh  heavily  in  the  impact  analysis  and  in  identification  of  the  Preferred 
Option.  

Increased awareness, enforcement, deterrence and legal certainty 

Policy  Options  will  score  higher  to  the  extent  that  they  make  economic  operators 
more  aware  of  their  rights  and  obligations  under  EC  competition  rules.  Clear  and 
explicitly  formulated  rules  add  to  such  awareness,  just  as  much  as  they  clarify  the 

82 

See Joined Cases C-295/04 to C-298/04, Manfredi (see footnote 14), paragraph 95. 

EN 

34 

   EN 

                                                 
97. 

98. 

99. 

conditions applicable to claims for damages and the conditions of liability on the part 
of offenders.  

Likewise, Policy Options will score higher to the extent that they widen the scope or 
increase the: intensity of enforcement (by simply increasing the number of cases for 
which infringers are held responsible, by addressing different types of infringement 
or by involving a wider variety of economic operators); likelihood of detection and 
of  having  to  bear  the  financial  consequences  of  anti-competitive  behaviour;  and, 
assuming that the optimum level has not yet been reached, the level of those financial 
consequences.  

A  higher  degree  of  awareness  of  the  EC  competition  rules,  combined  with  better 
enforcement  of  them  (by  means  of  private  actions),  may  contribute  to  greater 
compliance  with  these  rules  and,  hence,  to  better  achievement  of  their  objectives. 
Any impact inherent in more effective compensation of victims obviously has to be 
taken  into  account  as  a  potential  benefit,  given  that  more  effective  deterrence  and 
greater  compliance  with  the  rules  will  contribute  to  achieving  the  results  of  fair 
competition.  

Policy Options will therefore score higher if they are likely to lead, all other things 
being  equal,  to  an  increase  in  deterrence  rates.  However,  because  increasing 
deterrence is not one of the primary objectives, in the final stage of comparing Policy 
Options and determining the Preferred Option less weight will be given to positive 
scores on deterrence, particularly compared with good scores on the central objective 
of compensation. 

100. 

Policy  Options  will  score  lower  on  this  category  to  the  extent  that  they  lead  to  a 
situation where the risk of damages claims prevents undertakings from engaging in 
lawful conduct or where damages are to be paid by undertakings that did not infringe 
the competition rules. 

c. 

Access to justice 

101. 

102. 

Policy Options will score higher on this criterion to the extent that they ensure more 
effective access to justice for all victims of an infringement of competition law. That 
is  particularly  relevant  for  victims  who  have  only  small  claims  and/or  have 
difficulties  in  gaining  access  to  the  evidence  necessary  to  prove  their  case.  Policy 
Options  will  score  well  if  they  adequately  address  the  reasons  why  these  victims 
decide not to bring a damages case, although they would like to claim the damages 
they are entitled to.  

At the root of these reasons is the fact that victims fear the opportunity cost and the 
financial  consequences  of  losing  a  meritorious  case.  More  than  the  former  factor, 
which  is  largely  a  matter  of  personal  judgment,  the  latter  is  the  key  to  ensuring 
adequate access to justice, e.g. by reducing the financial risks or the likelihood that 
meritorious cases will be lost. Consequently, Policy Options that, for instance, allow 
effective and efficient collective redress and facilitate access to evidence and provide 
for accuracy in fact-finding will score well on the “access to justice” criterion. 

EN 

35 

   EN 

d. 

Efficient use of the judicial system 

103. 

104. 

105. 

Efficient  use  of  the  judicial  system  means  avoiding  unnecessary  delays,  multiple 
proceedings and contradictory outcomes. Policy Options will therefore score higher 
to  the  extent  that  they  allow  related  cases  to  be  dealt  with  together.  Cases  are 
considered  related  when  they  concern  the  same  infringement,  whereas  identity  of 
claimant and/or defendant is not really required. Key issues raised by the case, like 
establishment  of the  infringement, damage calculation,  etc.,  may  indeed  be  similar, 
independent of the litigating parties. Even if some of these issues vary between the 
parties,  claims  concerning  the  same  infringement  are  likely  to  be  interrelated  and 
would therefore benefit from being handled jointly.  

As  the  judicial  system  should  not  be  overburdened,  Policy  Options  will, 
paradoxically,  also  score  higher  to  the  extent  that  they  allow  cases  to  be  settled 
adequately out of court.  

Policy  Options  will  score  lower  on  this  criterion  to  the  extent  that  they  offer 
claimants  excessive  incentives.  Incentives  can  be  considered  excessive  if  they 
encourage  claimants  to  bring  damages  claims  although  they  have  suffered  no  harm 
whatsoever.  Policy  Options  that  offer  incentives  to  claimants  who  suffered  only 
minor harm are not considered to encourage procedural abuses and therefore do not 
score lower on this criterion for that reason alone, even if the harm is outweighed by 
the litigation costs that go with the claim. 

e. 

A more level playing field  

106. 

107. 

Having  similar  rules  for  antitrust  damages  claims  throughout  Europe  is  considered 
beneficial, as it leads to equal treatment for businesses and consumers who are in a 
similar  situation.  Particularly  for  businesses,  exposure  to  antitrust  damages  claims 
may  have  an  influence  on  their  market  behaviour.  Fair  competition  on  the  internal 
market would therefore require comparable exposure to damages claims, which can 
be brought about only by similar procedural rules governing actions for damages. 

Since antitrust damages actions are put forward by the Court of Justice as a remedy 
stemming directly from European law, claimants of antitrust damages should all be 
able  to  use  this  remedy  effectively.  Although  the  effectiveness  of  the  remedy  may 
allow  some  divergence  between  Member  States,  it  does  require  compliance  with 
certain  minimum  standards.  Those  minimum  standards  would  have  to  be  the  same 
across Europe. 

108. 

As  a  result,  Policy  Options  will  score  higher  to  the  extent  that  they  create  a  level 
playing field in Europe for claimants and defendants in antitrust damages actions. 

5.1.2.  Costs 

a. 

Litigation costs 

109. 

This broad category of costs covers both the litigation costs for parties to proceedings 
(both settlement costs and costs incurred when the case is brought to court) and the 
enforcement costs for public authorities (such as courts and competition authorities). 
Policy Options will therefore score higher on these costs to the extent that they offer 

EN 

36 

   EN 

incentives  to  litigate  and/or  suggest  measures  that  increase  the  costs  (resources, 
opportunity cost and money) of litigation for the parties or for public authorities. 

b. 

Administrative burden 

110. 

111. 

In  line  with  the  European  Commission’s  Impact  Assessment  Guidelines,  this 
category includes costs incurred by businesses, consumers and public authorities in 
order to meet legal obligations to keep information and to provide it, either to public 
authorities  or  to  private  parties.  Only  the  net  costs  are  taken  into  account, 
i.e. excluding  those  that  would  be  incurred  anyhow,  even  without  any  legal 
obligation.  

Policy  Options  will  score  higher  on  this  cost  to  the  extent  that  they  require 
businesses, consumers or public authorities to keep information for a long period of 
time (storage costs) and that they impose an obligation to provide that information to 
one  of  the  parties  (disclosure  costs).  Policy  Options  will  score  high  on  disclosure 
costs to the extent that they have a low threshold triggering disclosure and/or wide 
scope of disclosure. 

c. 

Error costs 

112. 

Error  costs  means  costs  related  to  the  possibility  of  courts  issuing  a  mistaken 
decision.  That  could  take  the  form  either  of  incorrectly  awarding  damages  (type  I 
error) or of incorrectly rejecting a claim for damages (type II error). Policy Options 
will score high on error costs to the extent that they suggest measures that increase 
the likelihood of error and/or measures that amplify the impact of the error. 

113. 

Errors  in  quantification  of  damages  are  not  included  in  this  category  because  the 
resulting  under-  or  over-compensation  already  has  a  negative  impact  on  the 
corrective justice objective (see point 95).  

d. 

Implementation costs  

114. 

Implementation  costs  means  costs  incurred  by  businesses,  consumers  and  national 
public  authorities to  adapt  to new rules (e.g. training costs, compliance costs, etc.). 
Although real, these costs are therefore transitory. Policy Options will score high on 
these  costs  to  the  extent  that  they  lead  to  a  big  change  in  the  regulatory  context  in 
which businesses, consumers and public authorities operate. 

5.1.3.  Other impacts 

115. 

Apart from these categories of costs and benefits, this report also assesses the impact 
of  the  different  Policy  Options  on  consumers  and  SMEs  on  the  one  hand  and  on 
macro-economic variables, such as competitiveness, innovation, growth and jobs, on 
the other. The latter impact coincides largely with the expected level of compliance 
with the competition rules. In particular, the more that undertakings comply with the 
rules, the more competitive markets will be and the lower any allocative inefficiency. 
Policy Options that are more likely to achieve that result are therefore more likely to 
contribute  positively  to  growth  and  employment.  Such  positive  overall  effects  are 
likely  to  outweigh  certain  negative  effects  in  those  rare  cases  where  the  breach  of 
competition law and the resulting public fines and liability for civil damages pose a 
financial threat to the survival of the infringing firm.  

EN 

37 

   EN 

5.2. 

Identifying and assessing the impact of each Policy Option 

116. 

117. 

As explained in section 1.2.5, the assessment presented in this report is based on the 
Commission  departments’  own  analysis,  the  results  of  a  broad  consultation  of 
stakeholders  and,  in  particular,  the  findings  of  the  Impact  Study.  This  section  sets 
out,  in  the  form  of  tables,  the  conclusions  of  the  Commission’s  assessment  of  the 
positive and negative impacts that Policy Options 1 to 5 would be likely to have if 
implemented. 

The point of reference, for the purposes of this assessment, is the absolute impact of 
the various Policy Options. In other words, each option is assessed on its own merits, 
including  Policy  Option  5,  which  is  the  “no  policy  change”  or  “business  as  usual” 
(BAU) scenario. The reason for choosing this method is that, in the context of claims 
for  damages  for  breach  of  the  EC  antitrust  rules,  it  is  important  to  illustrate  the 
significant costs and benefits that taking no action at all (“business as usual”) would 
have.  This  approach  will,  in  particular,  make  it  possible  to  compare  all  Policy 
Options with each other, including Policy Option 5.  

5.2.1.  Policy Option 1 

118. 

The  legislative  measures  envisaged  under  Policy  Option  1  would  aim  at  maximum 
facilitation  of  damages  claims  and  offering  very  strong  incentives  for  victims. 
Central  components  of  this  Policy  Option  include  double  damages  for  all  types  of 
infringement,  “opt-out”  class  actions,  mandatory  one-way  fee-shifting,  a  rule 
excluding  the  passing-on  defence,  very  broad  disclosure  of  evidence  at  a  relatively 
low  threshold,  binding  effect  of  all  NCA  decisions,  strict  liability  and  a  potentially 
long limitation period.  

119. 

Tables 2 to 4 set out the main conclusions of the Commission’s analysis of the likely 
positive and negative impacts of Policy Option 1.  

Table 2 − Benefits of Policy Option 1 

Benefits 
achieved/ 
problem 
addressed 

Impact: zero 
(0) to high 
((cid:57)(cid:57)(cid:57)(cid:57)(cid:57)) 

(cid:57)(cid:57)(cid:57)(cid:57) 

1. Ensuring full 
compensation 
of the entire 
harm suffered 

Explanation of rating and aspects of the policy option most relevant to the 
benefits 

Overall, most effective for obtaining damages, but high risk of over-
compensation: opt-out class actions and the various incentives lead to a large 
increase in number of victims compensated • double damages create likelihood 
that (at least) full harm is compensated, even if cases are settled at a lower amount 
than claimed • more accurate fact-finding (very broad disclosure) allows more 
precise quantification of loss suffered and increases number of victims 
compensated • very long limitation period makes compensation for entire duration 
of infringement more likely • one-way fee-shifting can allow victims to settle for an 
amount that is closer to the actual harm; • but risk that double damages might lead 
to over-compensation, although this risk is mitigated in settlements • in opt-out 
class actions, possible difficulties in identifying victims and distributing damages 
compensation may be averaged • in opt-out class actions, the very large group of 
victims included in the class may not always be able to control the lawyers acting 
for the class (principal/agent problem) misalignment of their interests could lead to 
under-compensation •absence of passing-on defence may lead to over-
compensation of direct purchasers • limitation of liability on the part of successful 

EN 

38 

   EN 

(cid:57)(cid:57)(cid:57)(cid:57) 

2. Increased 
awareness, 
enforcement, 
deterrence and 
legal certainty 

3. Access to 
justice 

(cid:57)(cid:57)(cid:57)(cid:57)(cid:57) 

4. Efficient use 
of the judicial 
system 

(cid:57)(cid:57)(cid:57) 

immunity applicants may reduce available compensation (if other infringers are 
insolvent), although this risk is limited.83 

Overall, enforcement, deterrence and legal certainty highly increased, but 
risk of over-deterrence in non-cartel cases: double damages: opt-out class 
actions increase potential liability of infringers per case and in total • no over-
deterrence in cartel cases, inter alia as the detection rate for cartels is likely to 
remain very low (but improved, although due to secrecy less than for other types of 
infringement), i.e. not higher than 20% • rules enforced much more frequently, 
increasing deterrence: the various incentives may stimulate monitoring and 
detection by market players and consumers • opt-out class actions necessitate 
publication of claims and that raises awareness• exclusion of passing-on defence 
increases the number of claims by direct purchasers and their chances of success• 
comprehensive clarification of conditions for exercising rights and liability • but 
significant risk of over-deterrence in abuse and vertical cases, although somewhat 
mitigated by settlements • high risk of strategic/unmeritorious lawsuits.84 

Overall, very broad access to justice, especially for indirect purchasers: high 
incentives and opt-out class actions will lead to compensation of very much higher 
number of victims (including those who suffered scattered damages)• greatly 
facilitated access to evidence and greater accuracy in fact-finding• legal costs are 
removed as a hurdle to access to justice due to one-way fee-shifting• binding effect 
of NCA decisions/strict liability facilitate proof significantly • access to justice for 
longer time due to limitation periods.85 

Overall improvement in efficiency, but significant potential for abuses and 
excesses: binding effect of NCA decisions and strict (no-fault) liability clearly 
improve efficiency in follow-on cases • absence of pass-on defence simplifies 
proof/calculation of damage • opt-out class actions simplify small-claims actions • 
but, especially, very broad discovery at low threshold and automatic fee-shifting 
create high risk of strategic lawsuits • unmeritorious cases impose significant 
burden on courts.86 

5. A more level 
playing field 

(cid:57)(cid:57)(cid:57)(cid:57)(cid:57) 

Equal protection of right to damages across the EU a practically level playing 
field for consumers and businesses alike.  

Table 3 − Costs of Policy Option 1 

Costs 

Costs: zero 
(0) to high 
((cid:56)(cid:56)(cid:56)(cid:56)(cid:56)) 

1. Litigation 
costs  

(cid:56)(cid:56)(cid:56)(cid:56)(cid:56) 

Explanation of rating and aspects of the policy option most relevant to the 
costs 

Overall, very high increase in total litigation costs and high increase per 
case: opt-out class actions, double damages and one-way fee-shifting highly 
increase number of lawsuits • opt-out class actions and very broad discovery at low 
threshold make cases costly, although opt-out class actions are more efficient than 
individual suits • strong risk of unmeritorious litigation • abuses such as “discovery 
blackmail” can impose significant burdens on undertakings • limitation of liability on 
the part of successful immunity applicants may increase litigation costs for victims, 
although for the defendants some costs are likely to arise even without this 
measure from the additional litigation by the cartelist first held liable who will seek a 
contribution from the co-infringers • but binding effect of NCA decisions reduces 
parties’ costs in follow-on claims • early disclosure/strict liability reduce costs 

83 

84 

85 
86 

See, in particular, Impact Study, Part III, section 2.2 and Part II, sections 1.3, 1.6, 2.3.2, 2.4.2, 5.1.3 and 
6.3.1. 
See, in particular, Impact Study, Part III, section 2.2, Part II, sections 1.6, 2.3.2, 2.4.2, 3.2 and 5.1.3 and 
Part I, sections 2.1.1 and 3.1.1.1. 
See, in particular, Impact Study, Part III, section 2.2 and Part II, sections 2.3.2 and 3.2.  
See, in particular, Impact Study, Part III, section 2.2 and Part II, section 2.3.2. 

EN 

39 

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2. 
Administrative 
burden 

(cid:56)(cid:56)(cid:56)(cid:56)(cid:56) 

3. Error costs 

(cid:56)(cid:56)(cid:56) 

4. Implemen-
tation costs 

(cid:56)(cid:56)(cid:56)(cid:56)(cid:56) 

during trial • early disclosure and limitation of liability on the part of successful 
immunity applicants may stimulate cost-efficient early settlements.87 

High increase in administrative burden: more frequent litigation/early and very 
broad discovery at low threshold/long limitation period mean that a much greater 
number of companies must screen and produce many more documents more often 
over (in many MS) a longer period (until end of limitation period).88 

Overall, costs of errors likely to rise (few errors with high impact): double 
damages, fee-shifting and opt-out class actions imply high cost impact of each 
error • in addition, the increased magnitude of potential errors might sometimes 
induce judges wrongly to reject claims in close cases (to avoid the enormous 
negative impact of a wrong finding of liability) • but greater accuracy in fact-finding 
binding effect of NCA decisions/strict liability may reduce errors in follow-on 
cases.89  

A very costly change for all MS, with major legal hurdles for several 
(especially as regards double damages): various measures under this option 
require very significant changes to the law of all MS, which implies a very 
significant need for training of judges and the legal community • double damages, 
opt-out class actions, very broad discovery rules at low threshold and absence of 
passing-on defence raise public policy or even constitutional concerns in several 
MS, which may be difficult to overcome • early (automatic) disclosure at low 
threshold without judicial involvement clashes with conception of civil procedure in 
many MS with a civil law tradition • limitation of liability on the part of successful 
immunity applicants may be difficult to implement in various MS (e.g. because in a 
cartel the contribution by each participant is crucial for the cartel’s success and can 
therefore be causal for the damage suffered by every victim) • although many of 
these are one-off costs, they are nonetheless extremely high.90 

Table 4 − Other impacts of Policy Option 1 

Other impacts  Benefit: zero 

(0) to high 
((cid:57)(cid:57)(cid:57)(cid:57)(cid:57)) 

(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57) 

1. Positive 
impact on 
SMEs and 
consumers 

2. Likely 
macro-
economic 
impact 

Explanation of rating and aspects of the policy option most relevant in this 
context 

SMEs and consumers, often with limited financial resources and relatively risk-
averse, benefit most from the incentives and facilitation of damages claims under 
this Policy Option • but SMEs and consumers might also suffer from increased 
litigation activity, especially if upstream players can, depending on market 
conditions, pass on their increased costs.91  

Greater enforcement and resulting deterrence would, in principle, push for more 
competitive markets with likely positive effects on growth and employment • but 
risk of over-deterrence and risk of high costs/heavy burden and of strategic 
lawsuits might lead to less efficient resource allocation and R&D activity and 
negative consequences on prices.92  

87 
88 
89 

90 
91 
92 

See, in particular, Impact Study, Part III, section 2.2 and Part II, sections 1.2, 1.6.3, 3.2, 5.1.3 and 6.3.1. 
See, in particular, Impact Study, Part III, section 2.2 and Part II, sections 1.6.3, 2.4.2, 3.2.1 and 5.1.3. 
See,  in  particular,  Impact  Study,  Part  III,  section  2.2  and  Part  II,  sections  1.2,  1.6.3,  2.4.2,  3.2.1  and 
5.1.3.  
See, in particular, Impact Study, Part III, section 2.2 and Part II, sections 1.6.3, 2.4.2, 3.2.1 and 5.1.3.  
See, in particular, Impact Study, Part III, section 2.2.1. 
See, in particular, Impact Study, Part III, section 2.2.2.  

EN 

40 

   EN 

 
                                                                                                                                                         
5.2.2.  Policy Option 2  

120. 

The legislative measures envisaged under Policy Option 2 aim at addressing almost 
all the recognised obstacles to effective antitrust damages actions, although in a less 
far-reaching  manner  than  Policy  Option  1.  Policy  Option  2  also  offers  a  smaller 
number  of  incentives.  The  main  features  of  this  Policy  Option  include  double 
damages  for  hardcore  cartels,  a  “loser  pays”  cost  rule  coupled  with  a  discretionary 
power  for  courts  to  shift  all  costs  to  the  defendant,  “opt-in”  collective  and 
representative  actions,  broad  disclosure  of  evidence  based  on  fact-pleading  and  an 
initial exchange of lists of relevant evidence, a rule allowing the passing-on defence 
and  facilitating  claims  by  indirect  purchasers,  a  presumption  of  fault  that  can  be 
rebutted in the event of an excusable error, binding effect of all NCA decisions and a 
restart of the limitation period on conclusion of the public proceedings.  

121. 

Tables 5 to 7 set out the main conclusions of the Commission’s analysis of the likely 
positive and negative impacts of Policy Option 2.  

Table 5 − Benefits of Policy Option 2 

Benefits 
achieved/ 
problem 
addressed 

Impact: zero 
(0) to high 
((cid:57)(cid:57)(cid:57)(cid:57)(cid:57)) 

(cid:57)(cid:57)(cid:57)(cid:57) 

1. Ensuring full 
compensation 
of the entire 
harm suffered 

Explanation of rating and aspects of the policy option most relevant to the 
benefits 

Overall,  very  effective  for  obtaining  damages,  but  some  risk  of  over-
compensation:  the  various  measures  to  facilitate  actions  and  incentives  should 
lead to a clear increase in the number of victims compensated • double damages 
for cartels create a likelihood that (at least) full harm is compensated, even if cases 
settle at a lower amount than claimed • greater accuracy of fact-finding (broad and 
early disclosure, subject to fact-pleading) allows more precise quantification of loss 
suffered  •  facilitation,  for  indirect  purchasers,  of  proof  of  passing-on  makes 
compensation of such victims more likely • opt-in collective/representative actions 
make  recovery  of  scattered  damage  more  likely  and  allow  better  alignment  of 
compensation with actual harm than Policy Option 1 • non-exclusion of passing-on 
defence is in line with the compensation objective • five-year limitation plus restart 
normally  sufficient  to  allow  recovery  •  but  some  risk  that  double  damages  for 
cartels  might  lead  to  over-compensation,  although  risk  mitigated  in  settlements; 
•some  risk  of  under-compensation  where  non-cartel  cases  are  settled  (at  a  lower 
amount than actual harm) • limitation of liability on the part of successful immunity 
applicants  may  reduce  available  compensation  (if  other  infringers  are  insolvent), 
although this risk is limited.93 

(cid:57)(cid:57)(cid:57)(cid:57)(cid:57) 

2. Increased 
awareness, 
enforcement, 
deterrence and 
legal certainty 

Overall,  significant  increase  in  deterrence,  enforcement  and  legal  certainty: 
opt-in  collective/representative  actions,  double  damages  for  cartels  and  binding 
effect  of  NCA  decisions  plus  presumption  of  fault  increase  likelihood  of  (private) 
enforcement  and  potential  liability  of  infringers  (in  each  case  and  in  total)  and, 
thereby,  deterrence  •  no  risk  of  over-deterrence  •  stimulation  of  monitoring  by 
market players and consumers and greater accuracy of fact-finding likely to lead to 
for  cartels) 
likely 
greater  detection  rates  (although 
• comprehensive clarification of conditions for exercise of right to damages and for 
liability  of  companies  to  occur  •  rule  on  limitation  period  allows  effective 
compensation in most cases while avoiding over-long legal uncertainty.94 

to  remain  very 

low 

3. Access to 

(cid:57)(cid:57)(cid:57)(cid:57)(cid:57) 

Overall,  access  to  justice  is  broader,  especially  for  indirect  purchasers: 
compensation of greater number of victims (including those who suffered scattered 

93 

94 

See, in particular, Impact Study, Part III, section 2.3 and Part II, sections 1.3, 1.6.2, 2.4.1, 2.4.3, 3.2.1, 
5.1.1 and 6.3.1. 
See, in particular, Impact Study, Part III, section 2.3 and Part II, sections 1.3, 1.6.2, 2.4.1 and 2.4.3.  

EN 

41 

   EN 

                                                 
justice 

damages)  •  opt-in  collective/representative  actions  improve  access  to  justice  for 
low-value small claims • facilitation of pass-on makes proof of damage more likely • 
early  access  to  evidence  facilitated  •  discretionary  full  fee-shifting  can  encourage 
victims to file meritorious but low-probability suits • the rule on the limitation period, 
especially the restart, allows proper access to justice • greatly facilitated access to 
evidence  and  greater  accuracy 
fact-finding  •  binding  effect  of  NCA 
decisions/presumption of fault facilitate proof significantly.95 

in 

4. Efficient use 
of the judicial 
system 

(cid:57)(cid:57)(cid:57)(cid:57)(cid:57) 

Overall,  very  significant  improvement  in  efficiency:  binding  effect  of  NCA 
decisions  and  fault  presumption  enhance  efficiency  in  follow-on  cases  •  early 
discovery  list  can  shorten  proceedings  •  opt-in  collective/representative  actions 
allow more efficient aggregation of individual claims.96 

5. A more level 
playing field 

(cid:57)(cid:57)(cid:57)(cid:57)  

Similarly  effective  protection  of  right  to  damages  across  the  EU:  more  level 
playing field for consumers and businesses alike. 

Table 6 − Costs of Policy Option 2 

Costs 

Costs: zero 
(0) to high 
((cid:56)(cid:56)(cid:56)(cid:56)(cid:56)) 

1. Litigation 
costs  

(cid:56)(cid:56)(cid:56) 

2. 
Administrative 
burden 

(cid:56)(cid:56)(cid:56) 

3. Error costs 

(cid:56)(cid:56) 

Explanation of rating and aspects of the policy option most relevant to the 
costs 

Overall,  increase  in  costs  in  total  and  per  average  case:  clear  increase  in 
number of law suits • broader disclosure than status quo in many MS can increase 
litigation  costs  •  disclosure  rule  entails  some  risk  of  “fishing  expeditions”  and 
“discovery  blackmail”  as  judicial  control  occurs  only  ex  post  (although  risk  limited 
by  the  possibility  of  discretionary  fee-shifting  and  fact-pleading  threshold)  •opt-in 
collective  /representative  actions  may  entail  new  costs  for  courts  •  limitation  of 
liability on the part of successful immunity applicants may increase litigation costs 
for victims, although for the defendants some costs are likely to arise even without 
this  measure  from  the  additional  litigation  by  the  cartelist  first  held  liable  who  will 
seek  a  contribution  from  the  co-infringers  •  but  opt-in  collective/representative 
actions  produce  efficiencies  that  can  reduce  costs  per  case  compared  with 
individual  actions  •  binding  effect  of  NCA  decisions/presumption  of  fault  reduce 
parties’ costs in follow-on claims • early disclosure and limitation of liability on the 
immunity  applicants  may  stimulate  cost-efficient  early 
part  of  successful 
settlements  •  binding  effect  of  NCA  decisions  across 
facilitates 
concentration of damages claims in multi-state cases in one court.97 

the  EU 

Overall, a significant impact: increase in number of lawsuits, broader disclosure 
than in most MS and automatic early drafting of lists in every lawsuit mean that a 
greater  number  of  companies  must  screen  and  produce  more  documents  more 
often  •  in  some  MS  longer  record-keeping  obligations  due  to  longer  limitation 
period  than  currently  •  but  the  burden  is  clearly  lighter  than  under  Policy  Option 
1.98 

Number of errors may increase in total, as the number of cases increases due 
to incentives and facilitation of damages actions • double damages for cartels imply 
a certain cost impact of each error in cartel cases • in addition, the increased cost 
impact  of  potential  errors  might  induce  judges  wrongly  to  reject  claims  in  close 
cartel  cases  •  but  the  statistical  incidence  of  errors  would  be  reduced  •binding 
effect  of  NCA  decisions  may  make  errors  less  likely  in  follow-on  cases;•  greater 
accuracy  in  fact-finding  •  the  “loser  pays”  rule  (as  a  general  principle)  stimulates 
selection of meritorious cases and prevents frivolous suits.99 

95 
96 
97 

98 
99 

See, in particular, Impact Study, Part III, section 2.3 and Part II, sections 2.4.1, 2.4.3 and 3.2.1. 
See, in particular, Impact Study, Part III, section 2.3 and Part II, sections 2.4.1, 2.4.3 and 3.2.1. 
See, in particular, Impact Study, Part III, section 2.3 and Part II, sections 1.6.2, 2.4.1, 2.4.3, 3.2.1 and 
6.3.1. 
See, in particular, Impact Study, Part III, section 2.3 and Part II, sections 1.6.2 and 3.2.1. 
See, in particular, Impact Study, Part III, section 2.3 and Part II, sections 1.2, 1.6.2 and 3.2.1. 

EN 

42 

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4. Implemen-
tation costs 

(cid:56)(cid:56)(cid:56)(cid:56) 

Very  significant  implementation  costs  for  many  MS  and  major  legal  hurdles 
for  several  MS  (as  regards  double  damages):  various  measures  under  this 
option require significant changes to the law of many MS in a few MS little change 
required • significant need for training of judges and the legal community • double 
damages  for  cartels  raise  public  policy  concerns  in  several  MS  which  may  be 
difficult to overcome • early (automatic) disclosure of evidence without prior judicial 
involvement  does  not  fit  easily  into  the  conception  and  basic  structure  of  civil 
procedure in many MS with a civil law tradition • limitation of liability on the part of 
successful  immunity  applicants  may  be  difficult  to  implement  in various  MS  (e.g. 
because,  in  a  cartel,  the  contribution  by  each  participant  is  crucial  for  the  cartel’s 
success  and  can  therefore  be  causal  for  the  damage  suffered  by  every  victim)  • 
although all these are one-off costs, they are nonetheless very significant.100  

Table 7 − Other impacts of Policy Option 2 

Other impacts  Benefit: zero 

(0) to high 
((cid:57)(cid:57)(cid:57)(cid:57)(cid:57)) 

(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57) 

1. Positive 
impact on 
SMEs and 
consumers 

2. Likely 
macro-
economic 
impact 

5.2.3.  Policy Option 3 

Explanation of rating and aspects of the policy option most relevant in this 
context 

SMEs and consumers are likely to benefit most from the incentives and 
facilitation of damages claims under this policy option • but slight risk that the 
“loser pays” rule (fee-shifting only optional) might discourage SMEs and 
consumers in meritorious low-probability cases.101 

Effective second pillar of enforcement and resulting deterrence would, in principle, 
push for more competitive markets with likely positive effects on growth and 
employment • much lower risk than in Policy Option 1 of excessive litigation 
leading to a deteriorating business environment.102 

122. 

Policy Option 3 envisages moderate facilitation by means of more limited legislative 
measures. Its main features include single damages with pre-judgment interest for all 
infringements, disclosure of specified categories of evidence based on fact-pleading 
and  judicial  control  of  proportionality,  the  possibility  of  passing-on  and  indirect 
purchaser  claims,  discretionary  fee-shifting  by  courts  for  part  of  the  legal  costs, 
binding  effect  of  NCA  decisions  in  the  same  Member  State,  only  representative 
actions  in  terms  of  collective  redress  and  suspension  of  the  limitation  period  while 
public proceedings are in progress. 

123. 

Tables  8  to  10  set  out  the  main  conclusions  of  the  Commission’s  analysis  of  the 
likely positive and negative impacts of Policy Option 3.  

Table 8 − Benefits of Policy Option 3 

Benefits 
achieved/ 
problem 
addressed 

Impact: zero 
(0) to high 
((cid:57)(cid:57)(cid:57)(cid:57)(cid:57)) 

Explanation of rating and aspects of the policy option most relevant to the 
benefits 

1. Ensuring full 
compensation 
of the entire 

(cid:57)(cid:57)(cid:57) 

Overall,  a  more  effective  compensation  mechanism,  but  not  all  victims 
benefit: clear but moderate facilitation of damages claims (especially disclosure of 
categories of evidence, representative actions and discretionary partial fee-shifting) 

100 
101 
102 

See, in particular, Impact Study, Part III, section 2.3 and Part II, sections 1.6.2 and 3.2.1. 
See, in particular, Impact Study, Part III, section 2.3.1. 
See, in particular, Impact Study, Part III, section 2.3.2.  

EN 

43 

   EN 

                                                 
harm suffered 

(cid:57)(cid:57)(cid:57) 

2. Increased 
awareness, 
enforcement, 
deterrence and 
legal certainty 

3. Access to 
justice 

(cid:57)(cid:57)(cid:57) 

4. Efficient use 
of the judicial 
system 

(cid:57)(cid:57)(cid:57) 

5. A more level 
playing field 

(cid:57)(cid:57)(cid:57) 

is likely to lead to some increase in the number of victims compensated • in many 
MS,  disclosure  of  categories  of  evidence  will  improve  the  likelihood  of  proving 
liability  and  quantification  of  the  full  actual  harm  suffered  •  no  risk  of  over-
compensation  •  binding  force  of  domestic  NCA  decisions  and  suspension  of 
limitation  period  during  public  investigations  improves  chances  of  (efficient) 
compensation in follow-on actions • non-exclusion of passing-on defence is in line 
with  the  compensation  objective  •  indirect  purchasers  can  claim  passed-on 
damages  •  but  absence  of  any  facilitation  to  prove  pass-on  keeps  these  cases 
very difficult for indirect purchasers • collective redress mechanism (representative 
only)  less  appropriate  for  certain  types  of  cases:  qualified  entities  may  focus  on 
priority  cases  •  risk  of  under-compensation  (especially  in  the  case  of  a  cartel) 
where  cases  are  settled  at  a  lower  amount  than  the  actual  harm  •  limitation  of 
liability  on  the  part  of  successful  immunity  applicants  may  reduce  available 
compensation (if other infringers are insolvent), although this risk is limited.103 

Overall,  moderate  increase  in  deterrence,  enforcement  and  legal  certainty: 
some  increase  in  magnitude  of  damages  award,  especially  via  representative 
actions, with disclosure rules leading to a moderate increase in deterrence • some 
increase  in  detection  rate,  although  still  very  low  for  cartels  •  no  risk  of  over-
deterrence  •  significant  clarification  of  conditions  for  exercise  of  right  to  damages 
and  for  liability  of  companies  to  occur  •  but  some  risk  of  under-deterrence  for 
cartels.104 

improved,  but 

Overall  clearly 
insufficient,  especially  for  victims  with 
relatively low-value claims: more victims gain access to justice than in the status 
quo  •  in  terms  of  access  to  evidence,  significant  improvement  in  several  MS,  as 
disclosure of categories of evidence possible and as initial fact-pleading threshold 
is  adapted  to  circumstances  of  each  case  •  discretionary  partial  fee-shifting 
alleviates  cost  barrier  for  claimants  to  some  extent,  depending  on  how  much 
judges  can/will  shift  costs  in  practice  •  but  collective  redress  mechanism 
(representative  only)  less  appropriate  for  certain  types  of  cases:  qualified  entities 
may  focus  on  priority  cases  •  mere  suspension  of  limitation  during  public 
investigation  can  prove  problematic  in  some  follow-on  cases  •  purely  domestic 
binding effect of NCA decisions does not support concentration of damages claims 
in multi-state cases in one court.105 

Overall,  some  improvement  of  efficiency:  in  some  scenarios,  representative 
actions allow efficient aggregation of small claims • binding effect of domestic NCA 
decisions  enhances  efficiency  in  follow-on  cases  (only  in  national  cases)  •  no 
significant risk of increase in unmeritorious litigation as the “loser pays” rule has a 
certain case-selection effect (while optional fee-shifting maintains access to justice) 
•  no  disclosure  abuses  because  ex  ante 
judicial  control,  especially  of 
proportionality • but absence of collective actions makes proceedings less efficient 
for small claims • increased burden on courts compared with status quo in several 
MS • in multi-state cases, the rule on the bindingeffect of domestic NCA decisions 
would probably produce the less efficient result that victims bring a separate action 
in each MS that adopted a public decision separately.106 

Minimum level of protection of right to damages in all MS: more level playing 
field for consumers and businesses alike • but significant differences between MS 
remain  as  many  MS  would  maintain  at  least  some  rules  that  go  further  than  the 
minimum  level  of  protection  of  the  victims’  right  (especially  on  the  issues  of 
collective redress, fault requirement and passing on). 

103 

104 
105 
106 

See, in particular, Impact Study, Part III, section 2.4 and Part II, sections 1.6.1, 2.4.3, 3.2.1, 5.1.1 and 
6.3.1. 
See, in particular, Impact Study, Part III, section 2.4 and Part II, sections 1.6.1, 2.4.3, 3.2.1 and 4.2.1.  
See, in particular, Impact Study, Part III, section 2.4 and Part II, sections 2.4.3 and 3.2.1. 
See, in particular, Impact Study, Part III, section 2.4 and Part II, sections 1.2 and 2.4. 

EN 

44 

   EN 

                                                                                                                                                         
Table 9 − Costs of Policy Option 3 

Costs 

Costs: zero 
(0) to high 
((cid:56)(cid:56)(cid:56)(cid:56)(cid:56)) 

1. Litigation 
costs  

(cid:56)(cid:56) 

2. 
Administrative 
burden 

(cid:56)(cid:56) 

3. Error costs 

(cid:56) 

4. Implemen-
tation costs 

(cid:56)(cid:56) 

Explanation of rating and aspects of the policy option most relevant to the 
costs 

Overall, litigation costs increase moderately in total and decrease moderately 
per average case: some increase in number of lawsuits (less than the number of 
victims  compensated  due  to  representative  actions)  •  disclosure  subject  to  fact-
pleading and ex ante proportionality test plus the “loser pays” principle (subject to 
discretionary,  partial  fee-shifting)  lead  to  moderate  increase  in  costs  and  a  very 
limited  risk  of  procedural  abuses,  if  any  •  costs  for  claimants  and  for  courts  per 
case  may  even  decrease  due  to  efficiencies  of  representative  actions  (compared 
with  individual  actions),  even  though  for  certain  types  of  cases  representative 
actions  are  less  appropriate  than  collective  actions  •  in  some  MS  (where  such  a 
disclosure  rule  is  currently  uncommon),  increase  in  the  burden  on  courts  •  purely 
domestic  binding  effect  of  NCA  decisions  increases  costs  as  it  does  not  support 
concentration  of  damages  claims  in  multi-state  follow-on  cases  in  one  court 
•limitation  of  liability  on  the  part  of  successful  immunity  applicants  may  stimulate 
cost-efficient  early  settlements,  but  may  also  increase  litigation  costs  for  victims, 
although  for  the  defendants  some  costs  are  likely  to  arise  even  without  this 
measure from the additional litigation by the cartelist first held liable who will seek a 
contribution from the co-infringers.107 

Overall,  a  relatively  small  impact:  slight  increase  in  number  of  lawsuits  and 
broader  disclosure  than  in  several  MS  lead  to  slightly  more  screening  and 
production  of  documents  •  in  some  MS  longer  record-keeping  obligations  due  to 
longer limitation period than currently • but the administrative burden is lighter than 
under Policy Option 2.108 

Number of errors may increase slightly in total, if at all: as the number of cases 
rises slightly, so may the total number of errors, but there is no indication that the 
overall  statistical  incidence  of  errors  would  increase  •  beneficial  impact  of  NCA 
decisions  on  errors  limited  by  the  absence  of  cross-border  binding  effect  •  but 
greater  accuracy  in  fact-finding  due  to  access  to  greater  amount  of  evidence  in 
several  MS  •  the  “loser  pays”  rule  stimulates  appropriate  selection  of  cases  and 
prevents frivolous suits.109 

Moderate  implementation  costs:  some  measures  under  this  option  (especially 
disclosure  rules  and  representative  actions,  but  also  the  limitation  periods  and 
binding  effect)  require  changes  to  the  law  of  several  MS  •  need  for  training  of 
judges and the legal community • none of the changes required raises major public 
policy concerns • limitation of liability on the part of successful immunity applicants 
may  be  difficult  to  implement  in  various  MS  (e.g.  because  in  a  cartel  the 
contribution by each participant is crucial for the cartel’s success and can therefore 
be causal for the damage suffered by every victim) • all these are one-off costs.110 

Table 10 − Other impacts of Policy Option 3 

Other impacts  Benefit: zero 

(0) to high 
((cid:57)(cid:57)(cid:57)(cid:57)(cid:57)) 

(cid:57)(cid:57) 

1. Positive 
impact on 
SMEs and 
consumers 

Explanation of rating and aspects of the policy option most relevant in this 
context 

Consumers  benefit  most  from  the  introduction  of  representative  actions  and 
possibility  of  partial  fee-shifting  as  their  interests  are  represented  at  a  lower  cost 
•  but  SMEs  benefit  to  a  lesser  extent  as  some  representative  entities  are  more 
likely  to  focus  on  consumer  harm,  may  face  significant  limitations  in  terms  of 

107 
108 
109 
110 

See, in particular, Impact Study, Part III, section 2.4 and Part II, sections 1.6.1, 3.2.1 and 6.3.1.  
See, in particular, Impact Study, Part III, section 2.4 and Part II, sections 1.6.1 and 3.2.1.  
See, in particular, Impact Study, Part III, section 2.4 and Part II, sections 1.2, 1.6.1 and 3.2.1.  
See, in particular, Impact Study, Part III, section 2.4 and Part II, sections 1.6.1, 2.4.3 and 3.2.1.  

EN 

45 

   EN 

                                                 
in  some  MS  and, 

resources 
in  certain  cases,  non-consumer/commercial 
associations  may  not  be  able  to  act  due  to  conflicting  interests  (e.g.  where  the 
infringers are a crucial supplier or are members of the same trade association in a 
given  sector)  •  still  a  risk  that  the  “loser  pays”  rule  (partial  fee-shifting  being  only 
optional)  and  strict  disclosure  criteria  might  discourage  SMEs  and  consumers, 
especially if they do not possess much evidence at the outset.111 

(cid:57)(cid:57) 

2. Likely 
macro-
economic 
impact 

Less likely that a very effective second pillar of enforcement will emerge, therefore 
weaker push for more competitive markets likely to have positive effects on growth 
and  employment  •  very  low  risk  of  excessive  litigation  leading  to  a  deteriorating 
business environment.112 

5.2.4.  Policy Option 4 

124. 

125. 

126. 

127. 

Policy Option 4 is the “non-regulatory approach” as it would identify, mainly from 
the  experience  in  Member  States,  a  range  of  useful  solutions  and  best  practices, 
which the Commission would recommend to all Member States for implementation 
in their own legal systems. The impact assessment of the non-regulatory approach of 
Policy Option 4 is based on the assumption that the same specific measures would be 
recommended  for  Member  State  action  as  those  suggested  in  Policy  Option  3  as 
legislative measures at EU level.  

Predicting the impact of mere recommendations such as those in Policy Option 4 is a 
particularly delicate exercise. In practice, it is difficult to foresee the degree to which 
Member States will actually act on the Commission’s recommendations and, where 
needed, adopt the corresponding new rules at national level. The likelihood of such 
legislative  changes  is  particularly  doubtful  as  it  would  imply  amending  sometimes 
long-standing rules in an area of law (civil law and procedure) which is generally not 
known for frequent intervention by the legislature. 

The  likelihood  of  Member  States  acting  on  the  recommendations  and,  hence,  the 
likelihood  of  Policy  Option  4  producing  the  desired  benefits  of  improving  the 
effectiveness of damages actions would, besides a more general “awareness-raising” 
effect, seem to depend mainly on what is called a “moral suasion” effect.  

There is a stream of literature advocating use of “soft law” to achieve broad policy 
objectives at international and EU levels. Benchmarking, such as recommendation of 
best  practices,  has  been  advocated,  in  particular,  by  international  organisations  to 
promote new modes of governance and better regulatory practices. However, there is 
no compelling evidence that the “moral suasion” effect has ever been strong enough 
to  create  a  high  likelihood  that  EU  Member  States  would  change  their  existing 
national laws113, particularly not in “long-standing” areas of law such as civil liability 
and civil procedure. There is therefore no guarantee that the “moral suasion” effect of 
a recommendation will lead all, or even the majority of, Member States to produce 
the desired results, namely an actual improvement in protection of victims’ right to 
compensation.  

128. 

The rating of various impacts of Policy Option 4 set out below nonetheless reflects 
both hypotheses, i.e. both effective and rather ineffective “moral suasion”. The rating 

111 
112 
113 

See, in particular, Impact Study, Part III, section 2.4.1. 
See, in particular, Impact Study, Part III, section 2.4.2.  
See, e.g., Impact Study, Part III, section 2.5. 

EN 

46 

   EN 

                                                                                                                                                         
is therefore expressed as a range indicating, at the upper end, the likely impact under 
the hypothesis that all Member States act on the recommendations and introduce the 
rules  and  best  practices  suggested.  At  the  lower  end,  the  rating  indicates  the  likely 
impact under the hypothesis that, at the very best, a few Member States  follow  the 
recommendations.  In  the  case  of  the  lower  end,  this  is  still  a  rather  conservative 
(i.e. optimistic,  but  not  very  realistic)  assumption,  because  it  may  well  be  that  no 
Member State follows the recommendations. Under these hypotheses, the lower end 
of the range corresponds largely with the likely impacts of Policy Option 5 and the 
upper end with the likely impacts of Policy Option 3. 

129. 

On  this  basis,  Tables  11  to  13  set  out  the  main  conclusions  of  the  Commission’s 
analysis of the likely positive and negative impacts of Policy Option 4.  

Table 11: Benefits of Policy Option 4 

Impact: zero 
(0) to high 
((cid:57)(cid:57)(cid:57)(cid:57)(cid:57)) 

(cid:57) − (cid:57)(cid:57)(cid:57) 

Explanation of rating and aspects of the policy option most relevant to the 
benefits 

The  likely  impacts  of  Policy  Option  4  correspond,  under  the  hypotheses  defined 
above, at the upper end of the range with the likely impacts of Policy Option 3 and, 
at the lower end, with the likely impacts of Policy Option 5. Consequently, see the 
explanations in the tables assessing Policy Options 3 and 5 for the range of ratings 
in this table. 

(cid:57) − (cid:57)(cid:57)(cid:57) 

See the explanations in the tables assessing Policy Options 3 and 5 for the range 
of ratings in this table. 

Benefits 
achieved/ 
problem 
addressed 

1. Ensuring full 
compensation 
of 
harm suffered 

the  entire 

Increased 

2. 
awareness, 
enforcement, 
deterrence and 
legal certainty 

3.  Access 
justice 

to 

(cid:57) − (cid:57)(cid:57)(cid:57) 

See the explanations in the tables assessing Policy Options 3 and 5 for the range 
of ratings in this table. 

4. Efficient use 
of  the  judicial 
system 

(cid:57) − (cid:57)(cid:57)(cid:57) 

See the explanations in the tables assessing Policy Options 3 and 5 for the range 
of ratings in this table. 

5. A more level 
playing field 

0 − (cid:57)(cid:57)(cid:57) 

See the explanations in the tables assessing Policy Options 3 and 5 for the range 
of  ratings  in  this  table.  The  differences  may  even  widen  if  some  MS  act  on  the 
recommendations and others maintain the status quo.  

Table 12 − Costs of Policy Option 4 

Costs 

Costs: zero 
(0) to high 
((cid:56)(cid:56)(cid:56)(cid:56)(cid:56)) 

Explanation of rating and aspects of the policy option most relevant to the 
costs 

1. Litigation 
costs  

(cid:56) − (cid:56)(cid:56) 

See the explanations in the tables assessing Policy Options 3 and 5 for the range 
of ratings in this table. 

2. 
Administrative 
burden 

0 − (cid:56)(cid:56) 

See the explanations in the tables assessing Policy Options 3 and 5 for the range 
of ratings in this table. 

3. Error costs 

(cid:56) 

See the explanations in the tables assessing Policy Options 3 and 5 for the ratings 
in this table. 

EN 

47 

   EN 

4. Implemen-
tation costs 

0 − (cid:56)(cid:56) 

See the explanations in the tables assessing Policy Options 3 and 5 for the range 
of ratings in this table. 

Table 13 − Other impacts of Policy Option 4 

Other impacts  Benefit: zero 
(0)  to  high 
((cid:57)(cid:57)(cid:57)(cid:57)(cid:57)) 

Explanation of rating and aspects of the policy option most relevant in this 
context 

1. Positive 
impact on 
SMEs and 
consumers 

2. Likely 
macro-
economic 
impact 

(cid:57) − (cid:57)(cid:57) 

See the explanations in the tables assessing Policy Options 3 and 5 for the range 
of ratings in this table. 

0 − (cid:57)(cid:57) 

See the explanations in the tables assessing Policy Options 3 and 5 for the range 
of ratings in this table. 

5.2.5.  Policy Option 5 

130. 

Policy  Option  5  entails  zero  action  at  EU  level  (i.e.  neither  legislation  nor  non-
regulatory measures) on antitrust damages actions in Europe. The assessment of the 
impacts of Policy Option 5 therefore examines the status quo and any developments 
considered  likely  without  EU  action.  The  likelihood  of  any  such  developments  is 
difficult to foresee, even for the short and medium term. It should be borne in mind 
that  Member  States  have  been  required  to  guarantee  the  effectiveness  of  the  EC 
competition rules since the EC Treaty entered into force. In 2001 the Court of Justice 
explicitly called upon Member States to provide, in the absence of Community rules, 
for effective remedies under their civil law and procedure to safeguard the right of all 
victims to compensation for harm suffered as a result of infringements of Articles 81 
or 82 of the EC Treaty. Notwithstanding this, to date very few Member States have 
taken  action  to  improve  the  effectiveness  of  their  legal  framework  for  antitrust 
damages  actions  and  there  is  no  clear  indication  that  a  significant  number  of  other 
Member  States  would  adopt  the  necessary  measures  without  any  impetus  from  EU 
level. 

131. 

The Commission’s analysis of various likely impacts of the option of zero action at 
EU  level  was  based  on  the  probably  still  conservative  (i.e.  optimistic)  assumption 
that  some  Member  States  would  adopt  a  number  of  measures  to  improve  the 
effectiveness of antitrust damages actions in Europe. Tables 14 to 16 set out the main 
conclusions of the Commission’s analysis of the likely positive and negative impacts 
of Policy Option 5.  

Table 14 − Benefits of Policy Option 5 

Benefits 
achieved/ 
problem 
addressed 

Impact: zero 
(0) to high 
((cid:57)(cid:57)(cid:57)(cid:57)(cid:57)) 

Explanation of rating and aspects of the policy option most relevant to the 
benefits 

(cid:57) 

1. Ensuring full 
compensation 
of the entire 
harm suffered 

Under-compensation of many victims likely to remain: no evidence that in the 
absence of Community action the number of victims compensated would increase 
significantly  •  obstacles  to  bringing  actions  and  to  successfully  proving  the 
conditions for compensation highly likely to persist in many MS • consequently, no 

EN 

48 

   EN 

(cid:57) 

2. Increased 
awareness, 
enforcement, 
deterrence and 
legal certainty 

3. Access to 
justice 

(cid:57) 

4. Efficient use 
of the judicial 
system 

(cid:57) 

5. A more level 
playing field 

0 

guarantee  that  all  EU  citizens  will  enjoy  a  certain  minimum  level  of  protection  of 
their right to antitrust damages.114 

Continued under-deterrence, especially for cartels and lack of legal certainty: 
overall, at best, very small increase in deterrence rates and compliance by means 
of  private  actions  for  damages  •  clear  under-deterrence,  especially  for  cartels,  in 
most  MS  •  uncertainty  resulting  from  the  differences  between  the  national  legal 
systems  will persist • no increase of awareness  at pan-European level,  at best in 
some  MS  •  without  any  guarantee  of  a  minimum  level  of  protection,  victims  of 
antitrust  infringements  would  have  no  clear  picture  of  their  basic  right  under 
Community  law  to  damages  in  the  MS  •  the  lack  of  a  common  approach  to  the 
interaction  with  public  enforcement  (e.g. protection  of  corporate  statements  by 
leniency  applicants)  creates  a  serious  risk  that  inconsistencies  or  even  loopholes 
might hamper public enforcement.115 

In  most  MS,  access  to  justice,  in  particular  for  SMEs  and  consumers, 
remains  problematic:  even  though  some  measures  improving  collective  redress 
may  well  be  taken  in  a  few  MS,  access  to  justice  in  antitrust  damages  cases  will 
continue to be difficult, as in many MS significant changes are unlikely, especially 
in  the  following  areas:  access  to  evidence,  cost  rules,  limitation  periods  and  their 
suspension/restart,  effect  of  NCA  decisions  and  the  problem  of  legal  uncertainty, 
e.g. in connection with pass-on.116 

Current inefficiencies remain in most MS, except maybe some improvement as 
a result of better collective redress in certain MS.117 

Substantial differences remain between MS: highly unlikely that in the absence 
of any EU action businesses would compete across Europe on an equal footing • 
highly unlikely that citizens and undertakings can enforce their rights conferred by 
the  Treaty  throughout  the  EU  in  an  equal/similar  manner  •  no  indication  that  a 
virtuous “mutual learning” process or a “race to the top” in the form of competition 
between legal orders would stimulate adoption of similar best practices across the 
EU • the current fragmentation of the  legal framework for  damages  actions could 
even  become  wider  in  a  few  years  if  some  MS  enact  significant  reforms  while 
others maintain the status quo. 

Table 15 − Costs of Policy Option 5 

Costs 

Costs: zero 
(0) to high 
((cid:56)(cid:56)(cid:56)(cid:56)(cid:56)) 

1. Litigation 
costs  

(cid:56) 

Explanation of rating and aspects of the policy option most relevant to the 
costs 

Litigation  costs  may  be  significant  in  individual  cases,  but  relatively  low 
overall and total costs might increase slightly: exercising the right to damages 
is  costly  (especially  due  to  lack  of  widespread  effective  collective  redress,  legal 
uncertainty,  difficult  access  to  accurate  evidence,  lack  of  binding  force  and 
differences  between  legal  systems),  but  the  level  of  litigation  is  low  •  number  of 
cases may increase slightly, if some MS facilitate damages actions • but if certain 

114 
115 
116 

117 

See, in particular, Impact Study, Part III, section 2.1 and Part II, sections 1.6.1, 2.2.1, 3.2.1 and 4.2.1. 
See, in particular, Impact Study, Part III, section 2.1 and Part II, sections 1.6.1 and 4.2.1.  
See, in particular, Impact Study, Part III, section 2.1 and Part II, sections 1.6.1, 2.2.1 and 3.2.1. See also 
the  report  “Private  actions  in  competition  law:  effective  redress  for  consumers  and  business  - 
Recommendations from the Office of Fair Trading”, available at: 
http://www.oft.gov.uk/shared_oft/reports/comp_policy/ oft916resp.pdf. Regarding the issue of passing-
on, the report underlines the need for consistency at EU level. On the issue of the binding force of NCA 
decisions, it states that a set of unilateral initiatives by the Member States could complicate rather than 
simplify matters.  
See, in particular, Impact Study, Part III, section 2.1 and Part II, sections 2.2.1 and 3.2.1. 

EN 

49 

   EN 

                                                 
 
2. 
Administrative 
burden 

0  

3. Error costs 

(cid:56) 

MS  improve  collective  redress,  costs  for  claimants  may  decrease  as  a  result  of 
efficiencies (compared with individual actions).118 

Relatively small burden in most MS, but may increase slightly: relatively small 
number  of  companies  concerned  due  to  low  number  of  cases  •  in  most  MS, 
currently  limited  information/disclosure  obligations  on  other  party  •  in  the  not  very 
likely event that some MS increase the scope of disclosure and limitation periods in 
antitrust damages cases, a somewhat heavier administrative burden may result.119 

Little  litigation  some  errors  will  persist,  but  total  number  moderate:  some 
errors  likely  due  to  lack  of  effective  access  to  evidence  and,  hence,  access  truth 
and absence of learning effects • given low level of litigation, total number of errors 
not high • but some MS might possibly introduce rules for greater accuracy in fact-
finding (although not very likely) • to the extent that the number of cases increases, 
courts will grow more familiar with antitrust cases and avoid errors.120 

4. Implemen-
tation costs 

0 

No implementation costs: in the absence of any provisions at EU level, no costs 
to implement them.121 

Table 16 − Other impacts of Policy Option 5 

Other impacts  Benefit: zero 

(0) to high 
((cid:57)(cid:57)(cid:57)(cid:57)(cid:57)) 

Explanation of rating and aspects of the policy option most relevant in this 
context 

(cid:57) 

0 

1. Positive 
impact on 
SMEs and 
consumers 

2. Likely 
macro-
economic 
impact 

See  comments  on  access  to  justice  above:  exercise  of  right  to  damages  would 
remain  very  difficult:  consumers  and  SMEs  are  also  likely  to  suffer  particularly 
from the persisting legal uncertainty • some improvement could occur in the area of 
collective redress in some MS.122 

Negligible contribution.123 

5.3. 

Likely costs for public authorities and businesses under the Policy Options 

132. 

133. 

134. 

In  its  analysis  of  the  likely  positive  and  negative  impacts  of  the  various  policy 
options,  the  Commission  paid  particular  attention  to  the  costs  that  each  measure 
envisaged would imply for businesses on the one hand and public authorities on the 
other. These various types of cost are indicated in Tables 2 to 16.  

Costs  for  businesses  can  occur,  with  differences  between  the  Policy  Options,  in  all 
four  categories  analysed  in  detail  above.  Particularly  relevant  to  undertakings  are 
“litigation  costs”,  “administrative  burden”  and  “error  costs”,  but  in  some  instances 
“implementation costs” may also be of relevance.  

The  courts  of  Member  States  would,  naturally,  play  an  essential  role  under  any 
Policy  Option  to  improve  the  effectiveness  of  damages  actions.  The  potential  costs 
and burden in this context are accounted for in the above tables under the headings 
“litigation costs” and “efficient use of the judicial system”. Costs to the legislature, 

118 
119 
120 
121 
122 
123 

See, in particular, Impact Study, Part III, section 2.1 and Part II, sections 1.6.1, 2.2.1 and 4.2.1.  
See, in particular, Impact Study, Part III, section 2.1 and Part II, sections 1.6.1 and 4.2.1. 
See, in particular, Impact Study, Part III, section 2.1 and Part II, sections 1.6.1 and 4.2.1. 
See, in particular, Impact Study, Part III, section 2.1 and Part II, sections 1.6.1 and 4.2.1. 
See, in particular, Impact Study, Part III, section 2.1.1. 
See, in particular, Impact Study, Part III, section 2.1.2. 

EN 

50 

   EN 

                                                                                                                                                         
judiciary  and  administrations  as  a  result  of  the  need,  in  certain  Policy  Options,  to 
laws  are  counted  as 
to 
adopt  and 
“implementation costs”.  

implement  amendments 

the  existing 

135. 

In  the  assessment  and  comparison  of  the  various  Policy  Options  in  section  6,  the 
impact on businesses and public authorities in terms of these costs plays an essential 
role. 

5.4. 

Other impacts, in particular likely implications for the EU budget 

136. 

137. 

In  principle,  this  policy  initiative  has  no  direct  impact  on  the  EU  budget.  No  new 
measures for training judges (or similar measures) are envisaged in addition to those 
already  ongoing  and  provided  for  in  the  EU  budget.  Nor  are  special  information 
campaigns  at  EU  level  envisaged  as  part  of  the  policy.  The  only  budgetary 
implication  which  the  policy  will  have  is  the  funding  required  (approximately 
€200 000)  to  launch  a  study  to  help  to  prepare  for  non-binding  assistance  to 
judges/parties for quantification of damages (see section 4.1 in fine).  

There  are  no  environmental  impact  of  this  initiative  foreseeable.  Trade  with,  and 
investments  by,  non-EU  countries  will  not  be  affected  by  the  initiative  in  any 
appreciable  manner.  On  the  contrary,  a  clearer  and  more  consistent  framework  for 
antitrust  damages  actions  across  the  EU  will  improve  legal  certainty  and 
predictability and thereby contribute to a better business environment and make entry 
into European markets easier, to the ultimate benefit of European consumers.  

EN 

51 

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6. 

COMPARING THE OPTIONS 

6.1. 

The Preferred Option 

6.1.1. 

Interim results of the impact analysis 

138. 

139. 

Based  on  the  impacts  analysed  above,  interim  conclusions  can  be  drawn  on  the 
strengths and weaknesses of the individual Policy Options and their ability to achieve 
the  objectives  properly  (especially  the  objective  of  full  compensation),  while 
avoiding excessive costs. 

Policy Option 1 

Policy  Option  1  has  great  potential  for  achieving  the  various  objectives.124  It  is 
particularly efficient at ensuring a more level playing field on the internal market and 
access  to  justice,  especially  for  indirect  purchasers.  It  also  adequately  meets  the 
objective  of  increasing  awareness,  enforcement,  deterrence  and  legal  certainty,  but 
not  fully,  due  to  a  risk  of  over-deterrence,  especially  in  non-cartel  cases.  The 
objective of ensuring full compensation of the entire harm suffered is also attained,125 
but, due to a serious risk of over-compensation and certain negative effects of opt-out 
class actions, this objective is not fully met. This is particularly important since the 
results  in  terms  of  achieving  this  objective  are  crucial  for  the  assessment,  as  full 
compensation  is  the  objective  most  directly  related  to  the  overall  objective  of  this 
policy.  Furthermore,  the  costs  incurred  by  this  Policy  Option  are  very  high.  This 
option has a very significant impact on almost every cost heading, whether litigation 
costs, administrative burden or implementation costs, especially since it would allow 
double damages for every type of case and very broad discovery at a low threshold. 
One  particularly  important  point  to  note  is  that  this  option  entails  a  strong  risk  of 
unmeritorious  litigation  being  brought  and  significant  potential  for  abuses  and 
excesses. Error costs are more limited, due to greater accuracy in fact-finding, even 
though each error would entail very high costs. As a result, Policy Option 1 does not 
sufficiently allow proper achievement of the objectives.  

140. 

These findings are in line with the findings of the Impact Study, which, in the context 
of a largely similar set of measures, found that the costs associated with the measures 
would be particularly high and would carry the risk of over-deterrence, especially for 
vertical  restraints  and  abuses  of  dominance.  Also  the  risk  of  over-compensation 
would  be  tangible  due  to  the  double  damages  envisaged.  As  a  result,  the  Impact 
Study concludes that this scenario could lead to development of a litigation culture 
whose  benefits,  including in terms of its contribution to macro-economic  variables, 
appear questionable, even compared with the status quo.126  

Policy Option 2 

141. 

Policy  Option  2  contains  a  range  of  legislative  measures  addressing  almost  all  the 
recognised  obstacles  to  effective  antitrust  damages  actions,  although  in  a  less  far-

124 
125 
126 

See section 4.2.1. 
See section 5.2.1. 
See Impact Study, Part III, section 2.2.4.  

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52 

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reaching/radical  manner  than  Policy  Option  1.127  Its  potential  for  achieving  the 
objectives identified is strong, whatever the  specific  objective considered.128 At the 
same  time,  it  considerably  diminishes  the  risks  of  over-deterrence  and  over-
compensation observed under Policy Option 1 and, to  a  very large  extent,  removes 
any  risk  of  abuse  of  the  judicial  system  by  unmeritorious  claimants.  Furthermore, 
Policy  Option  2  is  the  option  that  has  the  most  beneficial  macro-economic  impact. 
Another consequence of this less far-reaching approach than Policy Option 1 is that 
the costs incurred under Policy Option 2, though still high, are lower, some slightly 
(error costs and implementation costs, in particular due to the availability of double 
damages),  others  significantly  (administrative  burden  and  litigation  costs).  More 
specifically, under this option litigation costs would be much lower, in particular due 
to a more limited increase in the number of cases and a collective action mechanism 
which  would  imply  lower  costs  for  distributing  the  damages  awarded.  Moreover, 
Policy Option 2 would also pose more limited principal/agent problems than Policy 
Option  1.129  Implementation  costs  are  very  high,  inter  alia  because  the  concept  of 
double  damages  is  likely  to  raise  considerable  compatibility  issues  in  a  number  of 
Member States (see also paragraph 154 below).  

On  balance,  Policy  Option  2  nonetheless  adequately  achieves  the  objectives 
identified and, at the same time, avoids imposing excessive costs (with the exception 
of the issue of double damages). This concurs with the findings of the Impact Study 
which,  based  on  a  largely  similar  set  of  measures,  found  that  they  are  likely  to 
contribute positively to both corrective justice and deterrence, while at the same time 
limiting the risk of proliferation of strategic and abusive litigation.130 

Policy Option 3 

Policy  Option  3  is  aimed  at  addressing,  by  means  of  more  limited  legislative 
measures, the most significant obstacles to an effective system of damages claims.131 
In this Policy Option, the costs of achieving the objectives are slightly lower than in 
Policy  Option  2,  in  particular  in  the  case  of  implementation  costs,  but  also  under 
every  cost  heading.132  Furthermore,  the  costs  of  meeting  the  objectives  are 
significantly  lower  than  in  Policy  Option  1,  in  particular  the  litigation  costs, 
administrative burden and implementation costs.133  

However,  one  consequence  of  the  individual  specific  measures  contained  in  this 
Policy Option is that all the objectives identified in this report are achieved to a lesser 
extent than under Policy Option 2. This is particularly apparent for the objectives of 
increasing  awareness,  enforcement,  deterrence  and  legal  certainty,  access  to  justice 
and efficient use of the judicial system. The objectives are also attained less well than 
under  Policy  Option  1,  in  particular  those  on  access  to  justice  and  a  more  level 

142. 

143. 

144. 

127 
128 
129 

130 
131 
132 
133 

See section 4.2.2. 
See section 5.2.2. 
These  problems  between  clients  and  their  lawyers  arise  mainly  in  the  context  of  settlements,  as  the 
agents  may  have  incentives  to  settle  sooner,  for  lower  amounts  or  under  otherwise  unfavourable 
conditions (e.g. certain coupons instead of monetary compensation) than in the interest of the victims 
(the principals).  
See Impact Study, Part III, section 2.3.4. 
See section 4.2.3. 
See sections 5.2.2 and 5.2.3. 
See sections 5.2.1 and 5.2.3. 

EN 

53 

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145. 

146. 

147. 

playing field in Europe. Finally, the positive impact on SMEs and consumers is more 
limited  than  under  Policy  Options  1  and  2.  As  a  result,  Policy  Option  3  does  not 
sufficiently  allow  proper  achievement  of  the  objectives  even  though  it  avoids 
imposing excessive costs.  

The analysis carried out in the Impact Study also finds that a similar combination of 
measures  would  be  likely  to  prove  inadequate,  both  in  terms  of  achieving  more 
effective damages claims for the individual plaintiffs and for creating a level playing 
field for businesses and avoiding forum-shopping.134 

Policy Option 4 

level 

to  recommend 

Policy Option 4 is the non-regulatory option. It provides for no legislative measures 
at EU level, but proposes identifying a range of useful solutions and good practices at 
national 
to  all  Member  States  for  consideration  for 
implementation  in  their  own  legal  systems.135  Under  this  Policy  Option,  some 
progress  would  be  made  towards  achieving  the  policy  objectives,  but  to  a  much 
lesser  extent  than  under  Policy  Options  1  to  3  (in  the  best  scenario,  the  objectives 
would be met as they would under Policy Option 3).136  

Among the various objectives, the one least likely to be achieved is the more level 
playing field. However, almost all the other objectives would be insufficiently met. 
In practice, the soft law approach depends on national measures and is likely to result 
in  further  fragmentation  of  the  national  systems,  with  Member  States  applying  the 
solutions  and  good  practices  to  different  extents.  On  the  other  hand,  the  costs  of 
implementing  Policy  Option  4  are  low,  the  main  weakness  of  this  option  being  its 
inability to meet the objectives of this policy sufficiently. 

148. 

Essentially, as the findings of the Impact Study confirm, there is little likelihood that 
the effects of Option 4 would, in practice, add up to much more than those of Option 
5, i.e. of inaction at Community level.137  

Policy Option 5 

149. 

Policy Option 5 is zero action at EU level on this subject. The status quo could be 
affected  by  action  at  Member  State  level  and  also  by  Community  action  in  other 
areas.138  However,  this  option  is  even  less  able  to  achieve  the  objectives  identified 
than Policy Option 4.139 Although the costs of implementation are zero, it leads to a 
situation where error costs cannot be excluded due to the absence of learning effects 
and lack of sufficient access to accurate evidence. The positive impact on SMEs and 
consumers  would  be  very  limited  and  the  macro-economic  impact  would  be 
negligible.  Overall,  it  would  remain  very  difficult  to  exercise  the  right  to  damages 
and the general objective of the initiative would not be met.  

134 
135 
136 
137 
138 
139 

See Impact Study, Part III, section 2.4.4. 
See section 4.2.4. 
See section 5.2.4. 
See Impact Study, Part III, section 2.5.1 and Table 79. 
See section 4.2.5. 
See section 5.2.5. 

EN 

54 

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150. 

The unsatisfactory result of the no policy change option is confirmed in the Impact 
Study,  which  finds  that  the  level  of  corrective  justice  would  be  very  low,  while 
deterrence  may  increase  only  very  slightly  over  the  next  few  years.  The  internal 
market would remain fragmented in terms of the level of judicial protection and, as a 
result,  prone  to  forum-shopping.  The  administrative  burden,  legislative  costs  and 
error  costs  would  be  likely  to  remain  at  a  relatively  low  level  overall.  However, 
significant burdens would be borne by SMEs and consumers who would continue to 
suffer  from  inadequate  access  to  justice,  while  there  would  be  little  or  no  positive 
macro-economic impact.140  

Interim conclusion 

151. 

According  to  this  interim  analysis  of  the  Policy  Options  examined  so  far,  Policy 
Option  2  has  the  greatest  potential  for  achieving  the  objectives  identified,  while 
avoiding excessive costs.  

6.1.2. 

Identification of the Preferred Option 

152. 

153. 

This  comparison  of  the  various  Policy  Options  and  the  characteristics  of  the 
underlying  specific  measures  shows  that  the  Policy  Option  best  able  to  meet  the 
objectives identified effectively at the lowest possible cost is Policy Option 2. This 
Policy Option meets the general objective of ensuring that victims of infringements 
of EC competition law have access to truly effective mechanisms for obtaining full 
compensation  for  the  harm  they  suffered.  Also,  it  effectively  meets  all  the  specific 
objectives set out in section 3. The costs which would arise should this Policy Option 
be  implemented  remain  limited,  with  the  highest  likely  to  be  the  implementation 
costs, in particular due to the availability of double damages for cartel cases, while 
error costs would remain very limited. However, this Policy Option comes at a high 
cost. 

The  analysis  of  the  five  Policy  Options  nevertheless  shows  that,  taking  Policy 
Option 2 as the starting point, potential improvements can be made, in particular by 
reducing the costs that would be incurred as a result of implementation of this option. 
To ensure that the most efficient set of measures is proposed in the White Paper, and 
in view of the impact analysis, the preferred Policy Option (“the Preferred Option”) 
is a combination of Policy Option 2, with some elements of other less far-reaching 
Policy Options (3 and 4).  

154. 

The  changes  compared  with  Policy  Option  2  are  in  the  following  areas  and  for  the 
following reasons: 

•  Damages:  the  analysis  of  the  impact  of  the  various  Policy  Options  justifies 
switching  from  Policy  Option  2  to  Policy  Option  3  on  the  specific  measure 
regarding  damages.  The  change  from  double  damages  for  cartels  to  full  single 
damages  is  more  in  line  with  the  prevailing  principle  in  most  Member  States, 
which  is  that  damages  should  be  of  a  compensatory  nature  and  should  not  be 
construed  as  an  additional  sanction  (“private  penalty”).  It  must  be  added, 
however,  that,  this  may  lead  to  some  under-compensation  in  the  event  of 
settlements,  especially  in  cartel  cases.  The  change  in  the  damages  rules,  from 

140 

See Impact Study, Part III, section 2.1.  

EN 

55 

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Policy  Option  2  to  Policy  Option  3,  actually  reduces  the  costs  of  the  option,  be 
they  litigation  costs  (in  particular,  as  it  would  reduce  the  incentive  to  sue), 
administrative  burden  (by  decreasing  the  population  subject  to  each  information 
obligation)  or  error  costs  (due  to  a  reduced  impact  of  errors).  Moreover,  the 
difference  in  implementation  costs  is  very  significant,  since  the  introduction  of 
double damages proposed under Policy Option 2 would raise serious compatibility 
issues.  Only  in  a  very  small  number  of  Member  States  do  civil  courts  currently 
have  the  possibility  to  award  damages  that  go  beyond  full  compensation  of 
victims  and  pursue  the  objective  of  punishment  and  deterrence  (punitive  or 
exemplary damages). In the other Member States, such punitive damages do not 
exist. In several Member States, punitive damages are even considered contrary to 
their legal tradition and the compensatory principle that underlies their law of civil 
liability. As a result, these Member States, for example, refuse to enforce foreign 
judgments  containing  punitive  damages  on  the  grounds  that  they  would  conflict 
with  the  fundamental  principles  of  their  own  legal  order  (domestic  ordre 
public/public policy).141  

•  Access  to  evidence:  the  change  from  Policy  Option  2  to  Policy  Option  3  on  the 
specific measure regarding access to evidence also increases the potential to attain 
the objectives identified at lower cost. This change means that the rules on access 
to  evidence  provide  for  disclosure  of  specified  categories  of  evidence,  based  on 
fact-pleading and proportionality. As a result, this adjustment of Policy Option 2 
implies a certain limitation of the scope of the disclosure rules and the absence of 
an initial exchange between the parties of lists indicating all evidence relevant to 
the  case.  This  change  has  a  slight  impact  on  attainment  of  various  objectives. 
First, the objective of ensuring full compensation of the entire harm suffered will 
be particularly affected since restricting the scope of disclosure of evidence may 
make  it  more  difficult  to  achieve  accuracy  in  compensation.  This  has  a  direct 
impact  on  the  objective  of  increasing  awareness,  enforcement,  deterrence  and 
legal certainty by slightly lowering the probability of success and due to potential 
infringers’  reluctance  to  broader  disclosure  rules,  thereby  limiting  the  deterrent 
effect  of  the  rule.  However,  on  balance,  the  rule  on  access  to  evidence  under 
Policy Option 3 still allows good achievement of the various objectives identified 
while  significantly  reducing  the  impact  on  almost  every  cost  heading.  First,  the 
change from Policy Option 2 to Policy Option 3 reduces the impact on litigation 
costs, in particular in the initial litigation phase, allows deeper assessment by the 
court of the proportionality of the claims and limits the risk of fishing expeditions. 
Second,  this  change  significantly  reduces  the  administrative  burden  given  the 
smaller volume of documents to be processed. Third, implementation costs will be 
lower, as this change will require a smaller number of  Member States to amend 
their national rules regarding access to evidence. The change from Policy Option 
2 to Policy Option 3 on the specific issue of access to evidence has no impact on 
error costs.142  

•  Cost  rule:  the  change  from  Policy  Option  2  to  Policy  Option  4  entails  no 
significant change to the substance of the measure regarding the cost rule, but just 
a change of approach. Under the Preferred Option, the cost rule will not take the 

141 
142 

See, for example, Impact Study, Part II, section 1.6.2.  
See, in particular, Impact Study, Part II, sections 3.2.1. 

EN 

56 

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form  of  a  legislative  measure,  but  only  of  identification  and  recommendation  of 
good practices. Should the good practices be fully implemented at national level, 
the  objectives  would  be  achieved  as  much  as  in  Policy  Option  3,  but  at  lower 
implementation costs. A non-binding instrument of course entails a strong risk of 
lack  of,  or  divergence  in,  implementation  at  national  level,  thereby  possibly 
hindering attainment of the objectives. However, given the wide recognition in the 
Member  States  of  the  “loser  pays”  cost  rule,  and  the  fact  that  in  some  the  court 
may  already  deviate  from  this  rule  by  shifting  or  capping  costs  in  all  or  under 
limited  circumstances,  the  objectives  pursued  by  recommending  the  cost  rule  of 
Policy  Option  3  seem  to  be  realistically  achievable  at  national  level  without 
legislative intervention at EU level. The incentives to improve the cost rule on the 
basis  of  mere  identification  and  recommendation  of  good  practices  may  be 
sufficiently strong at national level. As a result, Option 4 should be preferred as 
regards the cost rule. 

155. 

In summary, the Preferred Option has the following characteristics. 

Table 17 − Overview of the Preferred Option 

Preferred Option 

Damages  

Full single 

Policy Option of 
origin of the 
measure 

Option 3 

Access to 
evidence 

Indirect 
purchaser  

Passing-on  

Effect of NCA 
decisions 

Fault (once 
infringement 
established) 

Collective 
redress 

Limitation 
period 

Cost rule 

Disclosure of specified categories, based on fact-pleading and proportionality  Option 3 

Standing allowed  

Options 1 to 3 

Defence allowed facilitation of proof of pass-on in favour of indirect 
purchaser  

Binding across EU 

Option 2 

Option 2 

Rebuttable presumption exoneration for excusable errors  

Option 2 

Opt-in collective + representative actions 

Option 2 

Minimum of 5 years as of reasonable knowledge + restart + 2 years 

Option 2 

No  legislative  measure,  only  identification  and  recommendation  of  good 
practices in line with Option 3: loser pays, but judge may shift all or part of 
the costs 

Option 4 

Interaction 
with leniency 

Protection  of  corporate  statements  from  disclosure;  limitation  of  liability  on 
the part of successful immunity applicant 

Options 1 to 3 

EN 

57 

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6.1.3. 

Impact of the Preferred Option 

156. 

157. 

The  Preferred  Option  aims  at  addressing  almost  all  the  recognised  obstacles  to 
effective  antitrust  damages  actions.  It  is  highly  similar  to  Policy  Option  2,  but 
diverges  from  it  slightly  in  order  to  ensure  better  achievement  of  the  objectives  on 
the one hand and/or limit the implementation costs on the other. The main features of 
the Preferred Option were described in the previous section. Tables 18 to 20 set out 
the main conclusions of the analysis of the likely positive and negative impacts of the 
Preferred Option.  

In the tables, the Preferred Option is analysed and rated in terms of its likely effects 
in both absolute and relative terms, i.e. in comparison with the “no policy change” or 
“business as usual” (BAU) scenario, which was analysed above as Policy Option 5. 
The reason for these two points of reference is to show the impact of the Preferred 
Option from every possible perspective and to provide a comprehensive yet concise 
picture  of  both  the  costs  and  benefits  of  the  Preferred  Option  in  the  absolute  and 
compared  with  the  present  state  of  affairs  (predicting  likely  developments  in  the 
short to medium term, i.e. 3 to 5 years143).  

Table 18 − Benefits of the Preferred Option 

Benefits 
achieved/ 
problem 
addressed 

1. Ensuring full 
compensation 
of 
harm suffered 

the  entire 

Impact:  zero  (0)  to 
high ((cid:57)(cid:57)(cid:57)(cid:57)(cid:57)) 

Explanation of rating and aspects of the policy option most relevant 
to the benefits 

absolute 

relative 
to BAU 

(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57) 

Overall,  a  more  effective  compensation  mechanism  for  all  victims: 
clear but measured facilitation of damages claims (especially by means of 
disclosure  of  categories  of  evidence,  opt-in  collective  and  representative 
actions  and,  to  a  lesser  extent,  discretionary  partial  fee-shifting  if 
implemented by MS) is likely to lead to an increase in the number of victims 
compensated  •  in  many  MS,  disclosure  of  categories  of  evidence  will 
improve the likelihood of proving liability and quantification of the full actual 
harm suffered • no over-compensation • facilitation, for indirect purchasers, 
of  proof  of  passing-on  makes  compensation  of  such  victims  more  likely  • 
non-exclusion  of  passing-on  defence  is  in  line  with  the  compensation 
objective  •  binding  effect  of  NCA  decisions  across  the  EU  allows 
concentration  of  damages  claims  in  multi-state  cases  in  one  court 
•availability  of  both  opt-in  collective  and  representative  actions  make 
recovery  of  scattered  damage  more  likely  •  five-year  limitation  plus  restart 
normally sufficient to allow recovery • but some risk of under-compensation 
where cases are settled (at a lower amount than the actual harm) • smaller 
number  of  victims  bringing  claims  due  to  the  absence  of  double  damages 
and  more  limited  disclosure  rule  •  mere  recommendations  as  regards  the 
cost rule pose a strong risk of lack of soft implementation at national level 
•limitation  of  liability  on  the  part  of  successful  immunity  applicants  may 
reduce  available  compensation  (if  other  infringers  are  insolvent),  although 
this risk is limited.144 

(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57) 

Increased 

2. 
awareness, 
enforcement, 
deterrence and 

Overall, increase in deterrence rates, enforcement and legal certainty, 
but  some  risk  of  under-deterrence  in  cartel  cases:  increase  in 
magnitude of damages awards, especially by means of opt-in collective and 
representative  actions,  plus  more  effective  disclosure  rules  improve 
enforcement and, thereby, deterrence rate • some increase in the number 

143 
144 

See section 4.2.5. 
See sections 5.2.2, 4.2.3 and 5.2.4. 

EN 

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legal certainty 

of  victims  compensated  adds  to  this  effect  •  rule  on  limitation  period 
provides  for  effective  enforcement  in  most  cases  while  avoiding  over-long 
legal  uncertainty  •no  risk  of  over-deterrence  •  significant,  comprehensive 
clarification of conditions for exercising the right to damages and for liability 
of  companies  to  occur  •  but  no  additional  stimulation  of  monitoring  and 
detection  by  market  players  by  means  of  double  damages  •  some  risk  of 
under-deterrence for cartels.145  

3.  Access 
justice 

to 

(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57) 

4. Efficient use 
of  the  judicial 
system 

(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57) 

to 

for 

justice 

is  broader,  especially 

Overall,  access 
indirect 
purchasers:  compensation  of  greater  number  of  victims  (including  those 
who  suffered  scattered  damages)  •  opt-in  collective  actions  and 
representative  actions  improve  access  to  justice  for  low-value  small 
claims;• facilitation of pass-on makes proof of damage more likely • in terms 
of access to evidence, significant improvement in several MS, as disclosure 
of  categories  of  evidence  possible  and  as  initial  fact-pleading  threshold  is 
adapted to circumstances of each case • discretionary partial fee-shifting, if 
implemented  by  MS,  can  encourage  victims  to  file  meritorious  but  low-
probability  claims,  thereby  lowering  the  cost  barrier  for  claimants  to  some 
extent  (while  maintaining  “loser  pays”  as  the  basic  rule  has  positive  case-
selection  effects)  •  rule  on  limitation  period,  especially  the  restart,  allows 
proper access to justice • but disclosure more limited than under Option 2 
•mere recommendations as regards the cost rule pose a strong risk of lack 
of soft implementation at national level.146  

fault  presumption  enhances  efficiency 

Overall,  significant  improvement  of  efficiency:  binding  effect  of  NCA 
decisions  and 
follow-on 
cases/proceedings  •  opt-in  collective/representative  actions  allow  efficient 
aggregation of small claims • no significant risk of increase in unmeritorious 
litigation  as the “loser pays”  rule  has  a certain case-selection  effect (while 
possible  discretionary  partial  fee-shifting  maintains  access  to  justice  for 
meritorious  but  low-probability  claims)  •  no  disclosure  abuses  because  ex 
ante 
•  but  mere 
recommendations as regards the cost rule pose a strong risk of lack of soft 
implementation at national level.147 

judicial  control,  especially  of  proportionality 

in 

5. A more level 
playing field 

(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57)(cid:57) 

Similarly effective protection of right to damages across the EU: more 
level playing field for consumers and businesses alike. 

Table 19 − Costs of the Preferred Option 

Costs 

Costs: zero 
(0) to high 
((cid:56)(cid:56)(cid:56)(cid:56)(cid:56)) 

Explanation of rating and aspects of the policy option most relevant to the 
costs 

abso-
lute 

rel-
ative 
to 
BAU 

1. Litigation 
costs  

(cid:56)(cid:56) 

(cid:56) 

Overall,  moderate  increase  in  total  litigation  costs  and  per  average  case: 
slight  increase  in  number  of  lawsuits  (less  than  the  number  of  victims 
compensated due to collective redress mechanisms) • disclosure subject to fact-
pleading  and  ex  ante  proportionality  test  plus  “loser  pays”/fee-shifting  lead  to 
moderate  increase  in  costs  and  very  limited  risk  of  procedural  abuses,  if  any 
•costs  per  claimant  per  case  may  even  decrease  due  to  efficiencies  of  opt-in 
collective and representative actions, even though these mechanisms may entail 
new  costs  for  the  courts  •  in  some  MS  (where  such  disclosure  is  currently 

145 
146 
147 

See sections 5.2.2 and 5.2.3. 
See sections 5.2.2, 5.2.3 and 5.2.4. 
See sections 5.2.2, 5.2.3 and 5.2.4. 

EN 

59 

   EN 

 
                                                                                                                                                         
uncommon),  increase  in  burden  on  courts  •  binding  effect  of  NCA  decisions 
across  EU  allows  concentration  of  damages  claims  in  multi-state  cases  in  one 
court  presumption  of  fault  reduces  parties’  costs  in  follow-on  claims  •  early 
disclosure may stimulate cost-efficient early settlements • limitation of liability on 
the  part  of  successful  immunity  applicants  may  stimulate  cost-efficient  early 
settlements,  but  may  also  increase  litigation  costs  for  victims,  although  for  the 
defendants  some  costs  are  likely  to  arise  even  without  this  measure  from  the 
additional  litigation  by  the  cartelist  first  held  liable  who  will  seek  a  contribution 
from the co-infringers.148  

2. 
Administrative 
burden 

(cid:56)(cid:56)  

(cid:56)(cid:56) 

Overall, a moderate impact: slight increase in  number  of lawsuits and  broader 
disclosure  than  in  several  MS  lead  to  slightly  more  screening  and  production  of 
documents  •  in  some  MS  longer  record-keeping  obligations  due  to  longer 
limitation period than currently.149 

3. Error costs 

(cid:56)  

4. Implemen-
tation costs 

(cid:56)(cid:56)  

(cid:56)(cid:56) 

Number  of  errors  may  increase  slightly,  if  at  all:  as  the  number  of  cases 
increases slightly, so may the total number of errors, however, no indication that 
overall  statistical  incidence  of  errors  would  increase  •binding  effect  of  NCA 
decisions  may  make  errors  less  likely  in  follow-on  cases  •  greater  accuracy  in 
fact-finding  •  the  “loser  pays”  rule  stimulates  selection  of  meritorious  cases  and 
prevents frivolous suits.150  

Moderate implementation costs: some measures under this  option (especially 
disclosure  rules,  binding  effect  and,  to  a  lesser  extent,  collective  redress 
mechanisms)  require  changes  in  the  law  of  several  MS  •  need  for  training  of 
judges  and  the  legal  community  •  none  of  the  changes  required  raises  major 
public  policy  concerns  •  limitation  of  liability  on  the  part  of  successful  immunity 
applicants  may  be  difficult  to  implement  in  various  MS  (e.g.  because  in  a  cartel 
the  contribution  by  each  participant  is  crucial  for  the  cartel’s  success  and  can 
therefore be causal for the damage suffered by each victim) • these are all one-
off costs.151 

Table 20 − Other impacts of the Preferred Option 

Other impacts 

Benefit:  zero 
(0) 
to  high 
((cid:57)(cid:57)(cid:57)(cid:57)(cid:57)) 

Explanation of rating and aspects of the policy option most relevant in this 
context 

abso-
lute 

relati
ve  to 
BAU 

(cid:57)(cid:57)(cid:57)  (cid:57)(cid:57) 

1. Positive 
impact on 
SMEs and 
consumers 

SMEs  and  consumers  are  likely  to  benefit  most  from  facilitation  of  damages 
claims under the Preferred Option, especially from introduction of opt-in collective 
and representative actions • but slight risk that the “loser pays” rule (fee-shifting 
only  recommended)  will  discourage  SMEs  and  consumers  in  low-probability 
cases  or,  due  to  the  disclosure  rule,  claimants  who  do  not  possess  much 
evidence at the outset.152 

2. Likely 
macro-

(cid:57)(cid:57)  

(cid:57)(cid:57) 

Second pillar of enforcement likely to emerge but less effective than under Policy 
Option 2 consequently, more limited push for more competitive markets with likely 

148 
149 
150 
151 
152 

See sections 5.2.2, 5.2.3 and 5.2.4. 
See sections 5.2.2 and 5.2.3. 
See sections 5.2.2, 5.2.3 and 5.2.4. 
See sections 5.2.2 and 5.2.3. 
See 5.2.2, 5.2.3 and 5.2.4. 

EN 

60 

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economic 
impact 

positive effects on growth and employment  • very low risk of excessive litigation 
leading to a deteriorating business environment.153 

6.2. 

Summary comparison of Policy Options 

158. 

The likely positive and negative impacts of Policy Options 1 to 5 were set out in the 
tables in section 5.2, while the impact of the Preferred Policy Option was assessed in 
section  6.1.  The  summary  set  out  below  provides  an  overview  of  the  impact,  in 
absolute  terms,  of  the  Preferred  Policy  Option  compared  with  the  five  other  Policy 
Options. 

Table  21:  Summary  of  impacts  (in  absolute  terms)  of  Policy  Options  1-5  and  the 
Preferred Option  

Benefits  achieved/problem 
addressed 

Rating of benefits from zero (0) to high ((cid:57)(cid:57)(cid:57)(cid:57)(cid:57)) 

Option 1 

Option 2 

Option 3 

Option 4 

Option 5 

Pref. Opt. 

1. Full compensation 

(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57) 

(cid:57) − (cid:57)(cid:57)(cid:57)  (cid:57) 

2.  Awareness,  deterrence, 
legal 
enforcement 
certainty 

and 

(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57) 

(cid:57) − (cid:57)(cid:57)(cid:57)  (cid:57) 

3. Access to justice 

(cid:57)(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57) 

(cid:57) − (cid:57)(cid:57)(cid:57)  (cid:57) 

4.  Efficient  use  of 
system 

judicial 

(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57) 

(cid:57) − (cid:57)(cid:57)(cid:57) 

(cid:57) 

(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57)(cid:57) 

5. A more level playing field 

(cid:57)(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57) 

0 − (cid:57)(cid:57)(cid:57) 

0 

(cid:57)(cid:57)(cid:57)(cid:57) 

Costs  

Costs from zero (0) to high ((cid:56)(cid:56)(cid:56)(cid:56)(cid:56)) 

Option 1 

Option 2 

Option 3 

Option 4 

Option 5 

Pref. Opt. 

1. Litigation costs 

(cid:56)(cid:56)(cid:56)(cid:56)(cid:56) 

(cid:56)(cid:56)(cid:56) 

2. Administrative burden 

(cid:56)(cid:56)(cid:56)(cid:56)(cid:56) 

(cid:56)(cid:56)(cid:56) 

3. Error costs 

(cid:56)(cid:56)(cid:56) 

(cid:56)(cid:56) 

4. Implementation costs 

(cid:56)(cid:56)(cid:56)(cid:56)(cid:56) 

(cid:56)(cid:56)(cid:56)(cid:56) 

(cid:56)(cid:56) 

(cid:56)(cid:56) 

(cid:56) 

(cid:56)(cid:56) 

(cid:56) − (cid:56)(cid:56) 

0 − (cid:56)(cid:56) 

(cid:56) 

0 − (cid:56)(cid:56) 

(cid:56) 

0  

(cid:56) 

0 

(cid:56)(cid:56) 

(cid:56)(cid:56) 

(cid:56)  

(cid:56)(cid:56)  

Other impacts 

Rating of other impacts from zero (0) to high ((cid:57)(cid:57)(cid:57)(cid:57)(cid:57)) 

Option 1 

Option 2 

Option 3 

Option 4 

Option 5 

Pref. Opt. 

1.  Positive  impact  on  SMEs 
and consumers 

(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57) 

(cid:57) − (cid:57)(cid:57) 

(cid:57) 

(cid:57)(cid:57)(cid:57) 

2. Macro-economic impact 

(cid:57)(cid:57) 

(cid:57)(cid:57)(cid:57) 

(cid:57)(cid:57) 

0 − (cid:57)(cid:57) 

0 

(cid:57)(cid:57)  

153 

See sections 5.2.2, 5.2.3 and 5.2.4. 

EN 

61 

   EN 

                                                                                                                                                         
6.3. 

Proportionality and EU added value of the Preferred Option 

159. 

160. 

Some of the measures envisaged in the Preferred Option entail mere codification of 
the  acquis  communautaire,  others  would  alter  the  status  quo.  Questions  of 
proportionality  and  subsidiarity  arise  only  in  the  case  of  the  latter,  i.e.  the 
recommendations for actual changes.  

The  Commission  considers  that  action  at  EU  level  along  the  lines  of  the  Preferred 
Option would be in line with the principle of subsidiarity since there is a clear need 
for and added value in such action. The Preferred Option is also fully in line with the 
principle of proportionality, both as regards its general approach and the content of 
the individual measures envisaged.  

6.3.1.  Proportionality  

161. 

162. 

As  explained  earlier,  it  was  particularly  because  of  its  qualities  in  terms  of 
proportionality  that  the  Preferred  Option  scores  higher  than  alternative  Policy 
Options.  In  particular,  the  Preferred  Option  strikes  a  careful  balance  between 
effective  protection  of  victims’  rights  to  compensation,  the  legitimate  interests  of 
potential defendants and third parties and important interests of Member States.  

Above  all,  the  Preferred  Option  is  the  minimum  necessary  to  achieve  its  objective, 
namely to guarantee that across the EU victims of infringements of EC competition 
law have access to a truly effective mechanism for obtaining full compensation for 
the  harm  they  suffered.  Of  the  Policy  Options  scoring  sufficiently  well  on  the 
objective  of  effective  compensation  for  a  large  number  of  victims,  the  Preferred 
Option implies the lowest costs. 

163.  Moreover,  the  costs  imposed  on  citizens  and  businesses  are  proportionate  to  the 
stated objective. To give one example, limiting disclosure of evidence to disclosure 
by category protects parties from being subjected to frivolous, excessive demands for 
documents (“fishing expeditions”) and from the spiralling costs often associated with 
discovery  rules  in  certain  other  jurisdictions.  In  particular,  access  to  evidence,  as 
envisaged in the Preferred Option, contains a built-in mechanism for ex-ante judicial 
control of the necessity for and proportionality of the disclosure measure. 

164. 

Likewise,  the  costs  to  Member  States  linked  to  the  Preferred  Option  are  also 
proportionate  to  the  objective  of  effective  relief  for  the  victims  of  antitrust 
infringements.  For  each  issue  in  the  Preferred  Option  where  there  was  a  choice  of 
possible  effective  measures,  the  measures  that  are  least  intrusive  while  still 
conducive  to  achieving  the  main  objective  were  chosen.  Attention  was  paid  to 
avoiding a disproportionate conflict with existing legal traditions, in particular with 
mandatory rules of ordre public in the Member States (for example, in the context of 
multiple damages).  

6.3.2.  European added value 

165. 

The Preferred Option would have European added value for the following reasons154: 

154 

According  to  point  5  of  the  Protocol  on  the  application  of  the  principles  of  subsidiarity  and 
proportionality,  “[t]he  following  guidelines  should  be  used  in  examining  whether  the  [principle  of 

EN 

62 

   EN 

                                                 
•  Lack  of  Community  action  would  conflict  with  the  requirements  under 
Community  law,  as  recalled  particularly  by  the  Court  of  Justice  in  the  Courage 
and  Manfredi  judgments,  namely  to  provide  for  an  effective  framework  for 
compensation for victims of infringements of  Articles 81 and  82. As there is no 
indication that a  significant number of  Member  States  are likely  to introduce, in 
the  foreseeable  future,  legislative  changes  that  ensure  an  effective  legal 
framework for damages actions by victims of antitrust infringements, only further 
incentives  at  European  level  can  create  a  legal  framework  ensuring  effective 
redress.  

•  There  is  currently  marked  inequality  in  the  level  of  judicial  protection  of 
individual rights under the Treaty in the Member States. For example, the absence 
of  Community  rules  on  the  issue  of  collective  and  representative  claims  means 
that consumers and small undertakings in some Member States are at a significant 
disadvantage  over  their  counterparts  in  other  Member  States,  in  terms  of  their 
ability  to  obtain  compensation  for  infringements  of  the  Community  competition 
rules. Another example is the absence, in many Member States, of clear rules on 
the issue of the passing-on defence and claims by indirect purchasers. The result is 
an evident disparity in the very content of the entitlement, under Community law, 
to damages. More specifically, a claim under the  law of one Member State  may 
lead  to  full  recovery  of  the  claimant’s  loss,  while  a  claim  for  an  identical 
infringement in another Member State may lead to a significantly lower award or 
even no award at all.  

•  These  sometimes  large  differences  in  the  level  of  legal  protection  of  the  rights 
which  victims  derive  from  the  Community  competition  rules  distort  the 
competitive environment for businesses, as the likelihood and scope of claims for 
damages  against  undertakings  directly  affect  their  competitive  position.  Isolated 
initiatives  by  Member  States  are,  by  nature,  not  likely  to  produce  a  more  level 
playing  field  for  businesses  and  to  reduce  the  uncertainty  created  by  the  current 
big  differences  between  the  national  legal  systems.  On  the  contrary,  individual 
initiatives may even widen the gaps and increase the risk of a negative impact as a 
result  of  forum  shopping.  Consequently,  only  Community  action  can  correct  the 
distortions  of  competition  that  currently  exist  due  to  the  variations  in  the  legal 
arrangements for antitrust damages in the Member States. 

•  Application of Articles 81 and 82 of the EC Treaty invariably involves a situation 
where trade between the Member States is affected by market conduct. Conduct 
infringing the Community competition rules therefore tends, by nature, to have a 
transnational dimension that could benefit from a measure at European level. One 
practical  example  are  the  diverging  rules  on  the  pass-on  defence  (e.g.  one  MS 

subsidiarity] is fulfilled: 
−  the  issue  under  consideration  has  transnational  aspects  which  cannot  be  satisfactorily  regulated  by 
action by Member States;  
− actions by Member States alone or lack of Community action would conflict with the requirements of 
the Treaty (such as the need to correct distortion of competition or avoid disguised restrictions on trade 
or strengthen economic and social cohesion) or would otherwise significantly damage Member States’ 
interests; 
−  action  at  Community  level  would produce  clear  benefits  by  reason  of  its  scale  or  effects  compared 
with action at the level of the Member States” (OJ C 340, 10.11.1997, p. 10). 

EN 

63 

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excludes defence and standing for indirect purchasers, whereas another MS does 
the  opposite).  Due  to  the  high  likelihood  of  multi-state  cases,  there  is  a  serious 
risk that the contradictory rules might lead either to multiple liability for the same 
overcharge  or  to  no  compensation  at  all.  Another  example  is  the  rule  on  the 
binding effect of NCA decisions across the EU. Such mutual recognition of NCA 
decisions  is  clearly  a  mechanism  that  is  best  introduced  by  a  single  consistent 
measure rather than by unilateral action by 27 Member States.  

•  The  interaction  between  the  measures  facilitating  antitrust  damages  actions  and 
various aspects of public enforcement of competition rules needs to be addressed, 
for  instance  operation  and  protection  of  the  Commission’s  and  Member  States’ 
leniency programmes. Individual action by Member States does not seem capable 
of achieving this in any consistent manner. 

EN 

64 

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7. 

MONITORING AND EVALUATION 

166. 

167. 

168. 

169. 

170. 

171. 

172. 

The research and consultation exercise that led to adoption of the White Paper ranks 
among  the  most  extensive  efforts  of  this  kind.  Two  extensive  studies,  public 
consultations and a series of other consultations with stakeholders at Member State 
and  Community  levels,  including  public  authorities,  prominent  scholars  and 
practitioners  from  the  private  sector,  have  contributed  greatly  to  the  analysis  and 
evaluation of the relevant issues to date.  

Following  publication  of  the  White  Paper,  the  Commission  will  continue  and 
intensify this dialogue with private and institutional stakeholders and with academics 
and expert practitioners. In the process, the Commission will pay particular attention 
to monitoring developments, both legislative and judicial, in the legal framework for 
antitrust damages actions in the Member States.  

On this basis the Commission will evaluate whether, and, if so, to what extent, to put 
forward  any  legislative  proposal  or  other  measures  such  as  recommendations  or 
guidance on best practices to enhance the effectiveness of antitrust damages actions.  

In the first step of the monitoring process, the Commission will be opening a public 
consultation on the White Paper. Once more, the purpose of this exercise is to obtain 
the widest possible range of information and opinions in relation to, on the one hand, 
the  measures  put  forward  in  the  White  Paper,  be  they  proposals  that  would 
necessitate  legislative  action  or  those  that  entail  adoption  of  recommendations  and 
guidelines, and, on the other, developments in the Member States.  

The  Commission  will  also  actively  engage  in  the  continued  institutional  dialogue 
with  the  European  Parliament  and  the  European  Economic  and  Social  Committee, 
both  of  which  commented  on 
the  Commission’s  Green  Paper  and  made 
recommendations for further action.  

At this stage, a considerable number of conferences, seminars and other discussions 
are already scheduled for the period after publication of the White Paper. These will 
provide the Commission with opportunities to receive feedback from, and exchange 
views  with,  representatives  from  industry,  consumer  associations,  law  firms  and 
economic  consultants,  but  also  representatives  of  Member  States’  governments, 
competition  authorities  and  judiciary.  When  selecting  the  events  in  which  they 
participate,  the  Commission  departments  will  pay  particular  attention  to  achieving 
the  widest  possible  spread  in  terms  of  groups  of  stakeholders  and  experts  and  of 
geographical coverage.  

The Commission will also use the existing framework for cooperation and discussion 
with  Member  States’  competition  authorities  within  the  European  Competition 
Network  to  continue  monitoring  antitrust  damages  actions  across  the  EU.  Another 
helpful  mechanism  in  this  context  is  Article  15(2)  of  Council  Regulation  1/2003 
which  requires  Member  States  to  send  the  Commission  copies  of  all  judgments 
where  national  courts  apply  Article  81  or  Article  82  of  the  EC  Treaty.  It  should, 
however,  be  borne  in  mind  that  a  simple  count  of  the  numbers  of  (successful) 
antitrust damages cases will not provide an accurate measure of the effectiveness of 
the legal framework for antitrust damages actions. What matters is full and adequate 

EN 

65 

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compensation  of  the  greatest  possible  number  of  victims  of  infringements  of 
competition  law.  Without  knowing  how  many  victims  have  been  harmed  and  how 
much damage they suffered, the number of successful cases does not tell much. As 
no data are available on the number of victims, the amount of damage they suffered 
and the amount of damages paid to victims following judgments or settlements, it is 
essential that the Commission gathers information by means of an intensive dialogue 
with a large number of stakeholders. 

EN 

66 

   EN