Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union
Date: 2013-06-11
Institutions: European Commission
Subjects: cartel, control of restrictive practices, dominant position, indemnification, infringement of EU law, judicial cooperation in civil matters in the EU

EUROPEAN 
COMMISSION 

Strasbourg, 11.6.2013  
COM(2013) 404 final 

2013/0185 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on certain rules governing actions for damages under national law for infringements of 
the competition law provisions of the Member States and of the European Union 

(Text with EEA relevance) 

{SWD(2013) 203 final} 
{SWD(2013) 204 final}

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

General context 

1.1. 
Regulation  No  1/20031  gives  effect  to  the  EU  rules  prohibiting  anticompetitive  agreements 
(including cartels) and abuses of dominant positions (‘the EU competition rules’), which are 
laid down in Articles 101 and 102 of the Treaty  on  the Functioning of  the  European Union 
(‘the  Treaty’),  by  setting  out  the  conditions  under  which  the  Commission,  the  national 
competition  authorities  (‘NCAs’)  and  national  courts  apply  these  provisions  in  individual 
cases. 

Regulation No 1/2003 gives the Commission and the NCAs powers to apply Articles 101 and 
102  of  the  Treaty2.  The  Commission  can  impose  fines  on  undertakings  that  have  infringed 
these provisions3. The powers of the NCAs are set out in Article 5 of Regulation No 1/2003. 
The  application  of  the  EU  competition  rules  by  the  Commission  and  NCAs  is  commonly 
referred to as the public enforcement of EU competition law. 

In  addition  to  public  enforcement,  the  direct  effect  of  Articles  101  and  102  of  the  Treaty 
means  that  these  provisions  create  rights  and  obligations  for  individuals,  which  can  be 
enforced  by  the  national  courts  of  the  Member  States4.  This  is  referred  to  as  the  private 
enforcement of the EU competition rules. 

Damages claims for breaches of Articles 101 or 102 of the Treaty constitute an important area 
of  private  enforcement  of  EU  competition  law.  It  follows  from  the  direct  effect  of  the 
prohibitions  laid  down  in  Articles  101  and  102  of  the  Treaty  that  any  individual  can  claim 
compensation  for  the  harm  suffered,  where  there  is  a  causal  relationship  between  that  harm 
and  an  infringement  of  the  EU  competition  rules5.  Injured  parties  must  be  able  to  seek 
compensation not only for the actual loss suffered (damnum emergens) but also for the gain of 
which they have been deprived (loss of profit or lucrum cessans) plus interest6. Compensation 
for harm caused by infringements of EU competition rules cannot be achieved through public 
enforcement. Awarding compensation is outside the field of competence of the Commission 
and the NCAs and within the domain of national courts and of civil law and procedure. 

Compliance  with  the  EU  competition  rules  is  thus  ensured  through  the  strong  public 
enforcement  of  these  rules  by  the  Commission  and  the  NCAs,  in  combination  with  private 
enforcement by national courts. 

1.2. 

Grounds for and objectives of the proposal 

The present proposal seeks to ensure the effective enforcement of the EU competition rules by 

1 

2 
3 
4 

5 

6 

Council  Regulation  (EC)  No  1/2003  of  16  December  2002  on  the  implementation  of  the  rules  on 
competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003, p. 1. With effect from 1 
December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and 102 of the Treaty. 
Their substance has not been changed. 
Articles 4 and 5 of Regulation No 1/2003, respectively. 
Article 23 of Regulation No 1/2003. 
Article 6 of Regulation No 1/2003; see also Case 127/73, BRT v. SABAM, [1974] ECR 51, paragraph 
16; Case C-282/95 P, Guérin Automobiles v Commission, [1997] ECR I-1503, paragraph 39. 
See  Case  C-453/99,  Courage  and  Crehan,  [2001]  ECR  I-6297;  Joined  Cases  C-295/04  to  C-298/04, 
Manfredi, [2006] ECR I-6619; Case C-360/09, Pfleiderer AG v Bundeskartellamt, [2011] ECR I-5161; 
and Case C-199/11 European Community v. Otis NV and others, [2012] ECR I-0000. 
Manfredi, see fn 5, paragraph 95. 

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(i) 

(ii) 

optimising the interaction between the public and private enforcement of competition 
law; and 

ensuring  that  victims  of  infringements  of  the  EU  competition  rules  can  obtain  full 
compensation for the harm they suffered. 

Optimising the interaction between the public and private enforcement of competition law 

The  overall  enforcement  of  the  EU  competition  rules  is  best  guaranteed  through 
complementary public and private enforcement. However, the existing legal framework does 
not  properly  regulate  the  interaction  between  the  two  strands  of  EU  competition  law 
enforcement. 

An  undertaking  that  considers  cooperating  with  a  competition  authority  under  its  leniency 
programme  (whereby  the  undertaking  confesses  its  participation  in  a  cartel  in  return  for 
immunity from or a reduction of the fine), cannot know at the time of its cooperation whether 
victims  of  the  competition  law  infringement  will  have  access  to  the  information  it  has 
voluntarily  supplied  to  the  competition  authority.  In  particular,  in  its  2011  Pfleiderer 
judgment, the European Court of Justice (hereinafter: ‘the Court’)7, held that, in the absence 
of EU law, it is for the national court to decide on the basis of national law and on a case-by-
case basis whether to allow the disclosure of documents, including leniency documents. When 
taking  such  a  decision,  the  national  court  should  balance  both  the  interest  of  protecting 
effective public enforcement of the EU competition rules and of ensuring that the right to full 
compensation can be effectively exercised. This could lead to discrepancies between and even 
within  Member  States  regarding  the  disclosure  of  evidence  from  the  files  of  competition 
authorities.  Moreover,  the  resulting  uncertainty  as  to  the  disclosability  of  leniency-related 
information is likely to influence an undertaking’s choice whether or not to cooperate with the 
competition  authorities  under  their  leniency  programme.  In  the  absence  of  legally  binding 
action  at  the  EU  level,  the  effectiveness  of  the  leniency  programmes  —  which  constitute  a 
very  important  instrument  in  the  public  enforcement  of  the  EU  competition  rules  —  could 
thus  be  seriously  undermined  by  the  risk  of  disclosure  of  certain  documents  in  damages 
actions before national courts. 

The need to regulate the interaction of private and public enforcement was confirmed in the 
stakeholders’  responses  to  the  public  consultation  on  the  2008  White  Paper  on  damages 
actions for breach of the EU antitrust rules (‘White Paper’)8 and the 2011 consultation on a 
coherent European approach to collective redress9. The May 2012 resolution of the Heads of 
the  European  Competition  Authorities  also  stressed  the  importance  of  the  protection  of 
leniency  material  in  the  context  of  civil  damages  actions10.  The  European  Parliament 
repeatedly emphasised that public enforcement in the competition field is essential, and called 
on the Commission to ensure that private enforcement does not compromise the effectiveness 
of either the leniency programmes or settlement procedures11. 

7 
8 

9 

10 

11 

‘Towards  a  coherent  European  approach 

Case C-360/09, Pfleiderer AG v Bundeskartellamt, [2011] ECR I-5161. 
COM(2008)  165  final;  see  also  Commission  Staff  Working  Paper  annexed  to  the  White  Paper, 
SEC(2008) 404. 
Public  consultation 
http://ec.europa.eu/competition/consultations/2011_collective_redress/index_en.html. 
Resolution  of  the  Meeting  of  the  Heads  of  the  European  Competition  Authorities  of  23  May  2012, 
Protection  of 
the  context  of  civil  damages  actions,  available  at: 
http://ec.europa.eu/competition/ecn/leniency_material_protection_en.pdf. 
See  the  European  Parliament  resolutions  of  2  February  2012  on  ‘Towards  a  Coherent  European 
(2011/2089(INI)): 
Approach 
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2012-21 

leniency  material 

redress’,  see 

to  collective 

Collective 

Redress’ 

to 

in 

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The  first  main  objective  of  the  present  proposal  is  thus  to  optimise  the  interaction  between 
public  and  private  enforcement  of  the  EU  competition  rules,  ensuring  that  the  Commission 
and  the  NCAs  can  maintain  a  policy  of  strong  public  enforcement,  while  victims  of  an 
infringement of competition law can obtain compensation for the harm suffered. 

Ensuring the effective exercise of the victims’ right to full compensation 

The second main objective is to ensure that victims of infringements of EU competition rules 
can effectively obtain compensation for the harm they have suffered. 

While the right to full compensation is guaranteed by the Treaty itself and is part of the acquis 
communautaire,  the  practical  exercise  of  this  right  is  often  rendered  difficult  or  almost 
impossible  because  of  the  applicable  rules  and  procedures.  Despite  some  recent  signs  of 
improvement  in  a  few  Member  States,  to  date  most  victims  of  infringements  of  the  EU 
competition rules in practice do not obtain compensation for the harm suffered. 

As long ago as 2005, the Commission identified, in its Green Paper on damages actions for 
breach of the EC antitrust rules12 (‘the Green Paper’), the main obstacles to a more effective 
system of antitrust damages actions. Today, those same obstacles continue to exist in a large 
majority of the Member States. They relate to 

(i) 

(ii) 

(iii) 

(iv) 

(v) 

obtaining the evidence needed to prove a case; 

the  lack  of  effective  collective  redress  mechanisms,  especially  for  consumers  and 
SMEs; 

the absence of clear rules on the passing-on defence; 

the absence of a clear probative value of NCA decisions; 

the possibility to bring an action for damages after a competition authority has found 
an infringement; and 

(vi) 

how to quantify antitrust harm. 

Besides these specific substantive obstacles to effective compensation, there is wide diversity 
as regards the national legal rules governing antitrust damages actions and that the diversity 
has actually grown over recent years. This diversity may cause legal uncertainty for all parties 
involved  in  actions  for  antitrust  damages,  which  in  turn  leads  to  ineffective  private 
enforcement of the competition rules, especially in cross-border cases. 

To remedy this situation, the second main objective of the present proposal is to ensure that 
throughout  Europe,  victims  of  infringements  of  the  EU  competition  rules  have  access  to 
effective  mechanisms  for  obtaining  full  compensation  for  the  harm  they  suffered.  This  will 
lead to a more level playing field for undertakings in the internal market. In addition, if the 
likelihood increases that infringers of Articles 101 or 102 of the Treaty have to bear the costs 
of  their  infringement,  this  will  not  only  shift  the  costs  away  from  the  victims  of  the  illegal 
behaviour, but will also be an incentive for better compliance with the EU competition rules. 

To achieve that objective, the Commission put forward concrete policy proposals in its 2008 
White  Paper.  In  the  ensuing  public  consultation,  civil  society  and  institutional  stakeholders 

12 

EN 

on 

the 

Annual 

and 
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2012-31. 
COM(2005)  672final;  see  also  Commission  Staff  Working  Paper  annexed  to  the  Green  Paper, 
SEC(2005) 1732. 

(2011/2094(INI)) 

Competition 

Report 

Policy 

EU 

on 

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such  as  the  European  Parliament13  and  the  European  Economic  and  Social  Committee14 
largely  welcomed  these  policy  measures  and  called  for  specific  EU  legislation  on  antitrust 
damages actions15. 

1.3. 

Existing provisions in the area of the proposal 

– 

Council  Regulation  No  1/2003  on  the  implementation  of  the  rules  on  competition 
laid down in Articles [101] and [102] of the Treaty 

• 

• 

• 

Pursuant to Article 2, the burden of proving an infringement of Article 101(1) 
or of Article 102 of the Treaty shall rest on the party alleging the infringement. 
Should the defending party claim the benefit of Article 101(3) of the Treaty, it 
shall  bear  the  burden  of  proving  that  the  conditions  of  that  paragraph  are 
fulfilled.  These  rules  apply  both  to  public  enforcement  and  to  actions  for 
compensation for the harm caused by an infringement of Article 101 or 102 of 
the Treaty. 

Article 15(1) provides that, in proceedings for the application of Article 101 or 
102 of the Treaty, national courts may ask the Commission to transmit to them 
information  in  its  possession.  The  Commission  Notice  on  the  cooperation 
between  the  Commission  and  the  courts  of  the  EU  Member  States  in  the 
application  of  Articles  101  and  102  of  the  Treaty16  elaborates  on  the 
interpretation and practical application of this provision. 

Article 16(1) provides that when national courts rule on agreements, decisions 
or practices under Article 101 or Article 102 of the Treaty which are already 
the  subject  of  a  Commission  decision,  they  cannot  take  decisions  running 
counter to the decision adopted by the Commission. National courts must also 
avoid giving decisions which would conflict with a decision contemplated by 
the  Commission  in  proceedings  it  has  initiated.  To  that  effect,  the  national 
court may assess whether it is necessary to stay the proceedings pending before 
it. 

Council  Regulation  No  44/2001  contains  rules  on  jurisdiction  and  the  recognition 
and  enforcement  of  judgments  in  civil  and  commercial  matters17.  Under  the 
conditions set out in that Regulation, courts of the Member States have jurisdiction to 
hear  antitrust  damages  actions,  and  judgments  in  such  actions  are  recognised  and 
enforced in other Member States. 

European Parliament Resolution of 26 March 2009 on the White Paper on damages actions for breach 
of the EC antitrust rules (2008/2154(INI)). 
European Economic and Social Committee Opinion of 25 March 2009 on the White Paper on damages 
actions for breach of the EC antitrust rules, OJ C 228, 22.09.2009, p. 40. 
See  European  Parliament  Resolution  of  2  February  2012  on  the  Annual  Report  on  EU  Competition 
Policy (2011/2094(INI)). 
OJ C 101, 27.4.2004, p. 54. 
Council  Regulation  (EC)  No  44/2001  of  22  December  2000  on  jurisdiction  and  the  recognition  and 
enforcement of judgments in civil and commercial matters, OJ L 12, 16.1.2001, p. 1. This Regulation 
has been recently replaced by Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and 
the recognition and enforcement of judgments in civil and commercial matters, OJ L 351, 20.12.2012, 
p. 1, which for the most part will enter into force on 10 January 2015. 

– 

13 

14 

15 

16 
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– 

– 

– 

– 

– 

– 

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21 

22 

23 

24 

25 

Council  Regulation  No  1206/2001  regulates  the  cooperation  between  the  courts  of 
different  Member  States  in  the  taking  of  evidence  in  civil  or  commercial  matters, 
thus including antitrust damages actions18. 

Article  6(3)  of  Regulation  No  864/2007  of  the  European  Parliament  and  of  the 
Council contains rules on the law applicable in antitrust damages actions19. 
Regulation 861/2007 of the European  Parliament and of the Council20 establishes a 
European  procedure  for  small  claims,  intended  to  simplify  and  speed  up  litigation 
concerning small claims in cross-border cases, and to reduce costs. 

Directive  2008/52/EC  of  the  European  Parliament  and  of  the  Council  requires 
Member  States  to  provide  for  a  possibility  to  mediate  in  all  civil  and  commercial 
matters, thus including antitrust damages actions21. 
Article 15(4) of Commission Regulation No 773/200422 determines that documents 
obtained  through  access  to  the  file  of  the  Commission  shall  only  be  used  for  the 
purposes of judicial or administrative proceedings for the application of Articles 101 
and  102  of  the  Treaty.  The  Commission  Notice  on  access  to  the  file23  provides  for 
more  detailed  rules  as  regards  access  to  the  Commission  file  and  the  use  of  those 
documents. 

The  Commission  Notice  on  immunity  from  fines  and  reduction  of  fines  in  cartel 
cases  (the  ‘Leniency  Notice’)24  contains  rules  on  the  conditions  under  which 
undertakings  can  cooperate  with  the  Commission  in  the  framework  of  its  leniency 
programme  in  order  to  obtain  immunity  from  or  a  reduction  of  its  fine  in  a  cartel 
case.  In  paragraph  33  it  determines  that  access  to  corporate  statements  is  only 
granted to the addressees of a statement of objections, provided that — together with 
the legal counsels obtaining access on their behalf — they do not make any copy by 
mechanical  or  electronic  means  of  any  information  in  the  corporate  statement  and 
that  the  information  from  the  corporate  statement  is  solely  used  for  the  purposes 
mentioned  in  the  Leniency  Notice.  Other  parties  such  as  complainants  are  not 
granted  access  to  corporate  statements.  This  specific  protection  of  a  corporate 
statement  is  no  longer  justified  when  the  applicant  discloses  its  content  to  a  third 
party. Furthermore, the Commission Notice on the conduct of settlement procedures 
in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council 
Regulation  (EC)  No  1/2003  in  cartel  cases  (the  ‘Settlement  Notice’)25  sets  out  the 
framework  for  rewarding  cooperation  with  the  Commission  in  the  conduct  of 

Council  Regulation  (EC)  No  1206/2001  of  28  May  2001  on  cooperation  between  the  courts  of  the 
Member States in the taking of evidence in civil or commercial matters, OJ L 174, 27.6.2001, p. 1. 
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the 
law applicable to non-contractual obligations (Rome II), OJ L 199, 31.7.2007, p. 40. 
Regulation  (EC)  No  861/2007  of  the  European  Parliament  and  of  the  Council  of  11 July  2007 
establishing a European Small Claims Procedure, OJ L 199, 31.07.2007, p. 1. 
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects 
of mediation in civil and commercial matters, OJ L 136, 24.5.2008, p. 3. 
Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by 
the Commission pursuant to Articles 81 and 82 of the EC Treaty, OJ L 123/18, 27.4.2004, p. 18. 
Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 and 
82 of the EC Treaty, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 
139/2004, OJ C 325/07, 22.12.2005, p. 7. 
Commission  Notice  on  immunity  from  fines  and  reduction  of  fines  in  cartel  cases,  OJ  C  298, 
08.12.2006, p. 17. 
OJ 2008/C 167/1. 

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proceedings  commenced  in  view  of  the  application  of  Article  101  of  the  Treaty  in 
cartel cases ('settlement procedure'). Its paragraph 39 contains rules on the disclosure 
of settlement submissions to national courts. 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

2.1. 

Consultation of interested parties 

Both  the  2005  Green  Paper  and  the  2008  White  Paper  triggered  a  broad  debate  among 
stakeholders,  and  a  large  number  of  comments  were  submitted26.  The  public  consultations 
showed broad support for the Commission’s general approach to enabling antitrust damages 
actions. Respondents welcomed the guiding principle of compensation and the consequential 
choice  not  to  suggest  measures  such  as  US-style  class  actions,  wide  pre-trial  discovery  or 
multiple damages, which would pursue primarily an objective of deterrence. There was broad 
acknowledgement of the obstacles that prevent effective redress for victims of infringements 
of  the  competition  rules.  However,  different  opinions  were  voiced  as  to  the  substantive 
measures suggested with a view to remedying the problems. 

In  2011,  the  Commission  held  a  public  consultation  on  a  coherent  European  approach  to 
collective redress27. In the wake of stakeholders' responses and the position of the European 
Parliament28, the Commission opted for a horizontal approach on this matter rather than the 
inclusion  of  competition-specific  provisions  on  collective  redress  in  the  current  proposal. 
Adopting a horizontal approach allows for common rules on collective redress for all policy 
fields in which scattered harm frequently occurs and in which it is difficult for consumers and 
SMEs to obtain damages. As the first step of an horizontal approach on collective redress, the 
Commission  adopted  the  Communication  'Towards  a  European  Framework  for  Collective 
Redress'29  and  a  Commission  Recommendation  on  common  principles  for  injunctive  and 
compensatory  collective  redress  mechanisms  in  the  Member  States  concerning  violations  of 
rights granted under Union Law.30 

The  Commission  also  held  a  public  consultation  in  2011  on  a  draft  Guidance  Paper  on  the 
quantification  of  antitrust  harm31.  This  sets  out  insights  into  a  range  of  methods  used  to 
quantify  harm  in  damages  actions  and  explains  the  strengths  and  weaknesses  of  these 

26 

27 
28 

29 

30 

31 

The written comments received by the Commission during the public consultation can be accessed here: 
http://ec.europa.eu/competition/antitrust/actionsdamages/green_paper_comments.html (Green Paper 
consultation) and here: 
http://ec.europa.eu/competition/antitrust/actionsdamages/white_paper_comments.html (White Paper 
consultation). 
See fn. 9 above. 
European  Parliament  resolution  of  2  February  2012  on  ‘Towards  a  Coherent  European  Approach  to 
(2011/2089(INI)): 
Collective 
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2012-21. 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions,  Towards  a  European Horizontal 
Framework for Collective Redress, COM(2013) 401 final. 
Commission  Recommendation  on  common  principles  for  injunctive  and  compensatory  collective 
redress  mechanisms  in  the  Member  States  concerning  violations  of  rights  granted  under  Union  Law, 
C(2013) 3539 final.  
Public consultation on a Draft Guidance Paper − Quantifying harm in actions for damages based on 
breaches of Article 101 or 102 of the Treaty, accessible at: 
http://ec.europa.eu/competition/consultations/2011_actions_damages/index_en.html. 

Redress’ 

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methods.  Institutional  and  other  stakeholders  generally  welcomed  the  idea  of  issuing  non-
binding guidance on quantifying harm caused by antitrust infringements32. 

2.2. 

Collection and use of external expertise 

The  Commission  commissioned  external  studies  for  the  preparation  of  the  2005  Green 
Paper33,  for  the  2008  White  Paper34  and  for  the  2011  draft  Guidance  Paper  on  the 
quantification of antitrust harm35. 

2.3. 

Impact assessment 

The  proposed  Directive  was  preceded  by  an  Impact  Assessment,  which  built  largely  on  the 
findings of the Impact Assessment on the White Paper. In particular, measures that had been 
excluded  in  the  White  Paper  because  of  their  likely  ineffectiveness  or  excessive  costs  were 
not reconsidered. 
The  impact  assessment  report36  focused  on  four  options  for  a  follow-up  initiative  aimed  at 
optimising  the  interaction  between  public  and  private  enforcement  of  the  EU  competition 
rules and ensuring a more effective legal framework for damages actions for infringements of 
the EU competition rules across Europe. They ranged from no action at the EU level, through 
a soft-law approach, to two options for legally binding EU action. 

The preferred option — which is the basis of this proposal for a Directive — is considered to 
be the most cost-efficient way of achieving the set objectives. It takes due account both of the 
main comments received during the public consultations over the past eight years and of more 
recent legislative and judicial developments at EU and national level. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

3.1. 

Legal basis of the proposal 

The choice of a legal basis for a European measure must be based on objective factors which 
are  amenable  to  judicial  review.  Those  include  the  aim  and  content  of  the  measure.  The 
current proposal is based on both Articles 103 and 114 of the Treaty, because it pursues two 
equally  important  goals  which  are  inextricably  linked,  namely  (a)  to  give  effect  to  the 
principles set out in Articles 101 and 102 of the Treaty and (b) to ensure a more level playing 
field for undertakings operating in the internal market, and to make it easier for citizens and 
businesses to make use of the rights they derive from the internal market. 

Regarding  the  first  objective,  the  Court  has  clarified  that  the  full  effectiveness  of  the  EU 
competition rules and, in particular, the practical effect of the prohibitions they contain would 
be put at risk if it were not open to any person to claim damages for loss caused to him/her by 
a  contract  or  conduct  liable  to  restrict  or  distort  competition.  It  considered  that  damages 
actions strengthen the working of the EU competition rules and can thus make a significant 

32 

33 

34 

35 

36 

are 

under 

public 

received 

consultation 

submissions 

the 
The 
http://ec.europa.eu/competition/consultations/2011_actions_damages/index_en.html#contributions. 
‘Study  on  the  conditions  of  claims  for  damages  in  case  of  infringement  of  EC  competition  rules’, 
accessible at: http://ec.europa.eu/competition/antitrust/actionsdamages/study.html. 
‘Making antitrust damages actions more effective in the EU: welfare impact and potential scenarios’, 
accessible at: 
http://ec.europa.eu/competition/antitrust/actionsdamages/files_white_paper/impact_study.pdf. 
‘Quantifying antitrust damages — Towards non-binding guidance for courts’, accessible at: 
http://ec.europa.eu/competition/antitrust/actionsdamages/quantification_study.pdf. 
Commission Staff Working Document, Impact Assessment Report, Damages actions for breach of the 
EU antitrust rules, Strasbourg 11-6-2013, SWD(2013) 203 final.  

available 

at: 

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contribution  to  maintaining  effective  competition  in  the  EU37.  In  seeking  to  improve  the 
conditions  under  which  injured  parties  can  claim  damages  and  to  optimise  the  interaction 
between  the  public  and  private  enforcement  of  Articles  101  and  102  TFEU,  the  present 
proposal clearly gives effect to these provisions. This means that the proposed Directive must 
be based on Article 103 of the Treaty. 

However, that legal basis in itself does not suffice, because both the aim and the content of the 
proposed  Directive  transcend  this  legal  basis.  Indeed,  the  aim  of  the  proposed  Directive  is 
wider  than  giving  effect  to  Articles  101  and  102  TFEU.  The  current  divergence  of  national 
rules governing damages actions for infringements of the EU competition rules, including the 
interaction of such actions with the public enforcement of those rules, has created a markedly 
uneven playing field in the internal market. These marked differences were already described 
in  a  2004  comparative  study38  and  in  the  2008  White  Paper  and  its  accompanying  Impact 
Assessment.  Since  then,  these  differences  have  increased  due  to  diverging  legislative  and 
judicial developments in only a limited number of Member States. 

One  example  of  divergence  is  given  by  the  different  national  rules  applying  to  access  to 
evidence.  With  the  exception  of  a  few  Member  States,  the  lack  of  adequate  rules  on  the 
disclosure  of  documents  in  proceedings  before  a  national  court  means  that  victims  of  a 
competition law infringement, who are seeking compensation for the harm suffered, have no 
effective  access  to  evidence.  Other  examples  concern  national  rules  on  passing-on  (where 
existing  differences  have  major  implications  for  the  ability  of  direct/indirect  purchasers  to 
effectively claim damages and, in turn, for the defendant’s chances of avoiding compensation 
for harm caused), the probative value of NCA decisions in subsequent damages actions, and 
national rules that are relevant to the quantification of antitrust harm (e.g. the existence of a 
presumption of harm). 

Because of this marked diversity of national legislations, the rules applicable in some Member 
States are considered by claimants to be much more suitable for bringing an antitrust damages 
action in those Member States rather than in others. These differences lead to inequalities and 
uncertainty  concerning  the  conditions  under  which  injured  parties,  both  citizens  and 
businesses, can exercise the right to compensation they derive from the Treaty, and affect the 
effectiveness of such right. Indeed, where the jurisdictional rules allow a claimant to bring its 
action in one of those ‘favourable’ Member States and where that claimant has the necessary 
resources and incentives to do so, it is thus far more likely to effectively exercise its EU right 
to  compensation  than  when  it  cannot  do  so.  As  injured  parties  with  smaller  claims  and/or 
fewer  resources  tend  to  choose  the  forum  of  their  Member  State  of  establishment  to  claim 
damages (one reason being that consumers and smaller businesses in particular cannot afford 
to  choose  a  more  favourable  jurisdiction),  the  result  of  the  discrepancies  between  national 
rules  may  be  an  uneven  playing  field  as  regards  actions  for  damages  and  may  affect 
competition on the markets in which these injured parties operate. 

Similarly,  these  marked  differences  mean  that  undertakings  established  and  operating  in 
different  Member  States  are  exposed  to  significantly  different  levels  of  risk  of  being  held 
liable  for  infringements  of  competition  law.  This  uneven  enforcement  of  the  EU  right  of 
compensation  may  result  in  a  competitive  advantage  for  undertakings  that  have  breached 
Articles 101 or 102 of the Treaty, but which do not have their headquarters or are not active in 
one of the ‘favourable’ Member States. Conversely, uneven enforcement is a disincentive to 
the exercise of the rights of establishment and provision of goods or services in those Member 

37 
38 

See fn. 5 above. 
See fn. 33 above.  

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States  where  the  right  to  compensation  is  more  effectively  enforced.  The  differences  in  the 
liability  regimes  may  thus  negatively  affect  competition  and  run  a  risk  of  appreciably 
distorting the proper functioning of the internal market. 

To ensure a more level playing field for undertakings operating in the internal market and to 
improve the conditions for injured parties to exercise the rights they derive from the internal 
market,  it  is  therefore  appropriate  to  increase  legal  certainty  and  to  reduce  the  differences 
between the Member States as to the national rules governing actions for antitrust damages. 

The extent to which the approximation of national rules is pursued is not limited to damages 
actions for breaches of the EU competition rules, but also of national competition rules when 
they  are  applied  in  parallel.  In  particular,  when  an  infringement  that  has  an  effect  on  trade 
between Member States also breaches national competition law, actions for damages based on 
it must comply with the same standards established for breaches of EU competition law.  

Approximating national substantive and procedural rules with the aim of pursuing undistorted 
competition in the internal market and enabling citizens and undertakings the full exercise of 
the  rights  and  freedoms  they  derive  therefrom  is  not  merely  ancillary  to  the  objective  of 
ensuring effective enforcement of the EU competition rules. This conclusion results not only 
from the aims, but also from the specific provisions of the proposed Directive. The content of 
the proposed Directive cannot be fully covered by Article 103 of the Treaty because it also 
modifies the applicable national rules concerning the right to claim damages for infringements 
of national competition law, even if that is only in respect to anticompetitive behaviour that 
has an effect on trade between Member States and to which EU competition law thus equally 
applies39. It follows that the scope of the proposed Directive, arising not only from the aims 
but  also  from  the  contents  of  the  instrument,  goes  beyond  giving  effect  to  Articles  101  and 
102 of the Treaty and means that the proposed Directive also has to be based on Article 114 
TFEU. 

These  interdependent,  though  distinct,  aims  of  the  proposed  Directive  cannot  be  pursued 
separately, through the adoption of two different instruments. For instance, it is not feasible to 
split  the  proposed  Directive  into  a  first  instrument,  based  on  Article  103  TFEU,  that 
approximates national rules in damages actions for breaches of Articles 101 and 102 TFEU, 
and a second one, based on Article 114 TFEU, that requires Member States to apply the same 
substantive and procedural rules to damages actions for breaches of national competition law. 
This choice cannot be made for substantive and procedural reasons. 

From  a  substantive  point  of  view,  the  indissociable  link  between  the  two  independent 
objectives underpins the concrete measures that pursue them. For instance, the exceptions to 
disclosure and limitations of liability give full effect to Articles 101 and 102, even in claims 
based on breaches of national competition law, when this has been applied in parallel to the 
Treaty provisions. Moreover, because of the need for legal certainty and a level playing field 
in the internal market, the same rules must apply to breaches of EU competition rules and of 
national  competition  law  (where  these  are  applied  in  parallel  to  the  EU  rules).  From  a 
procedural  point  of  view,  and  to  avoid  impairing  the  institutional  balance  within  the  EU 
legislature, the only way of achieving uniform rules for the two situations is to adopt a single 
legal instrument in the same procedure. 

For these reasons, the contents of the initiative are not split among separate instruments but 
are addressed jointly in the proposed Directive, which should thus be based on both Articles 
103 and 114 of the Treaty. 

39 

See further under section 4.1 below. 

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3.2. 

Subsidiarity principle (Article 5(3) of the Treaty on European Union) 

The proposed Directive is in line with the subsidiarity principle since its objectives cannot be 
sufficiently  achieved  by  the  Member  States,  and  there  is  a  clear  need  for,  and  value  in,  EU 
action. A legally binding act at EU level will be better capable of ensuring that full effect is 
given to Articles 101 and 102 of the Treaty through common standards allowing for effective 
damages  actions  across  the  EU,  and  that  a  more  level  playing  field  is  established  in  the 
internal market. 

More  specifically,  the  proposed  Directive  can  be  deemed  to  comply  with  the  principle  of 
subsidiarity for the following reasons: 

• 

• 

• 

There is a significant risk that effective public enforcement by the Commission and 
NCAs would be jeopardised in the absence of EU-wide regulation of the interaction 
between  public  and  private  enforcement,  and  in  particular  of  a  common  European 
rule  on  information  from  the  file  of  a  competition  authority  being  available  for  the 
purposes of a damages action. The point can be illustrated most clearly with regard to 
information that undertakings have voluntarily given to competition authorities under 
their leniency programme. The unpredictability that follows from the fact that each 
national  court  has  to  decide  on  an  ad  hoc  basis  and  according  to  the  applicable 
national  rules  whether  or  not  to  grant  access  to  this  leniency-related  information 
cannot  be  adequately  addressed  by  —  potentially  diverging  —  national  legislation. 
Indeed,  since  the  Commission  and  the  NCAs  can  exchange  information  within  the 
ECN,  potential  leniency  applicants  are  likely  to  take  into  account  the  national 
legislation  which  offers  the  lowest  level  of  protection  (for  fear  that  their  case  may 
eventually be decided by that NCA). The perceived level of protection of leniency-
related information will thus be determined by whichever national legislation offers 
the  lowest  level  of  protection,  to  the  detriment  of  the  applicable  rules  in  other 
Member  States.  It  is  therefore  necessary  to  establish  a  standard  common  to  all 
Member States for the interaction between public and private enforcement. This can 
only be done at the EU level. 

Experience shows that, in the absence of EU legislation, most Member States do not 
provide,  on  their  own  initiative,  for  an  effective  framework  for  compensation  for 
victims  of  infringements  of  Articles  101  and  102  of  the  Treaty,  as  repeatedly 
required by the Court. Since the publication of the Commission’s Green and White 
Papers,  only  a  small  number  of  Member  States  have  enacted  legislation  aimed  at 
enabling antitrust damages actions, and even this is usually limited to specific issues 
and does not cover the whole range of measures envisaged by the current proposal. 
Despite  the  few  steps  taken  by  some  Member  States,  there  is  thus  still  a  lack  of 
effective compensation for victims of infringements of the EU  antitrust rules. Only 
further incentives at European level can create a legal framework that gives effective 
redress  and  guarantees  the  right  of  effective  judicial  protection  as  laid  down  in 
Article 47 of the Charter of Fundamental Rights of the European Union. 

There is currently a marked inequality between Member States in the level of judicial 
protection of individual rights guaranteed by the Treaty; this may cause distortions of 
competition  and  of  the  proper  functioning  of  the  internal  market.  The  result  is  an 
evident disparity in even the content of the entitlement to damages guaranteed by EU 
law. 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. This 
inequality  increases  if  —  as  is  the  case  at  present  —  only  some  Member  States 

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improve the conditions under which victims of a competition law infringement can 
claim compensation for the harm suffered. The trans-national dimension of Articles 
101  and  102  of  the  Treaty  and  their  intrinsic  link  to  the  functioning  of  the  internal 
market warrants measures at the EU level. 

3.3. 

Proportionality principle (Article 5(4) of the Treaty on European Union) 

In terms of proportionality, the proposed Directive does not go beyond what is necessary to 
effectively  achieve  its  objectives,  namely  to  guarantee  effective  protection  of  public 
enforcement  of  competition  law  across  the  EU,  and  to  guarantee  access  for  victims  of 
competition law infringements to a truly effective mechanism for obtaining full compensation 
for  the  harm  they  have  suffered,  while  protecting  the  legitimate  interests  of  defendants  and 
third parties. 

Under the proposed Directive, those objectives are also achieved at the lowest possible cost. 
The  potential  costs  for  citizens  and  businesses  are  proportionate  to  the  stated  objectives.  A 
first step in this direction was taken with the White Paper by excluding more radical measures 
(e.g. multiple damages, opt-out class actions and wide-ranging discovery rules). The efforts to 
strike  this  balance  were  broadly  welcomed  during  the  public  consultations.  The  safeguards 
built  into  the  proposed  Directive  strengthen  this  balance  further  by  reducing  potential  costs 
(especially  litigation  costs)  without  jeopardising  the  right  to  compensation.  Furthermore, 
certain  measures  suggested  in  the  White  Paper,  such  as  collective  redress  and  rules  on  the 
fault  requirement,  have  since  been  discarded  for  the  purposes  of  this  proposal.  Finally,  the 
choice  of  a  Directive  as  the  appropriate  instrument  is  in  line  with  the  principle  that  there 
should be as little intervention as possible, so long as the objectives are achieved. 

3.4. 

A Directive as the most appropriate legally binding instrument 

The  objectives  of  the  present  proposal  can  best  be  pursued  through  a  Directive.  This  is  the 
most  appropriate  legal  instrument  to  make  the  measures  work  effectively  and  to  facilitate 
smooth adaptation into the legal systems of the Member States: 

– 

– 

– 

A  Directive  requires  Member  States  to  achieve  the  objectives  and  implement  the 
measures into their national substantive and procedural law systems. This approach 
gives  the  Member  States  more  freedom  when  implementing  an  EU  measure  than 
does a Regulation, in that Member States are left the choice of the most appropriate 
means of implementing the measures in the Directive. This allows Member States to 
ensure  that  these  new  rules  are  consistent  with  their  existing  substantive  and 
procedural legal framework. 

Furthermore, a Directive is a flexible tool for introducing common rules in areas of 
national  law  that  are  crucial  for  the  functioning  of  the  internal  market  and  the 
effectiveness  of  damages  actions,  and  for  ensuring  adequate  guarantees  throughout 
the EU, while leaving room for individual Member States to go further, should they 
so wish. 

Finally,  a  Directive  avoids  unnecessary  action  wherever  the  domestic  provisions  in 
the Member States are already in line with the proposed measures. 

4. 

DETAILED EXPLANATION OF THE PROPOSAL 

4.1. 

Scope and definitions (Chapter I: Articles 1 – 4) 

The  proposed  Directive  seeks  to  improve  the  conditions  under  which  compensation  can  be 
obtained  for  harm  caused  by  (a)  infringements  of  the  EU  competition  rules,  and  (b) 
infringements  of  national  competition  law  provisions,  where  the  latter  are  applied  by  a 

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national  competition  authority  or  a  national  court  in  the  same  case  in  parallel  to  the  EU 
competition rules. Such parallel application has its basis in the way in which Regulation No 
1/2003  regulates  the  relationship  between  Articles  101  and  102  of  the  Treaty  and  national 
competition laws. Regulation No 1/2003 provides that where national competition authorities 
or national courts apply national competition law to agreements within the meaning of Article 
101  which  may  affect  trade  between  Member  States,  they  must  also  apply  Article  101. 
Similarly, where they apply national competition law to any abuse prohibited by Article 102, 
they must also apply Article 10240. In cases where compensation is sought for a violation of 
both  EU  and  national  competition  law,  it  is  appropriate  for  the  same  substantive  and 
procedural rules to apply to those damages actions. Applying diverging rules on civil liability 
for a single specific instance of anticompetitive behaviour would not only make it unworkable 
for  judges  to  handle  the  case,  it  would  also  imply  legal  uncertainty  for  all  parties  involved, 
and it could lead to conflicting results depending on whether the national court considers the 
case  as  an  infringement  of  EU  or  of  national  competition  law,  thus  hampering  the  effective 
application  of  those  rules.  The  proposed  Directive  therefore  refers  to  damages  actions  for 
‘infringements  of  national  or  EU  competition  law’  or  jointly  ‘infringements  of  competition 
law’, whereby ‘national competition law’ is defined narrowly so as to cover only cases where 
it is applied in parallel to EU competition law. 

The proposed Directive sets out rules (i) ensuring that any natural or legal persons harmed by 
infringements of the competition rules are granted equivalent protection throughout the Union 
and  can  effectively  enforce  their  EU  right  to  full  compensation  through  damages  actions 
before national courts; and (ii) optimising the interaction between such damages actions and 
the public enforcement of the competition rules. 

Article  2  recalls  the  acquis  communautaire  on  the  EU  right  to  full  compensation.  The 
proposed  Directive  thus  embraces  a  compensatory  approach:  its  aim  is  to  allow  those  who 
have  suffered  harm  caused  by  an  infringement  of  the  competition  rules  to  obtain 
compensation for that harm from the undertaking(s) that infringed the law. 

Article 2 also recalls the acquis communautaire on standing and on the definition of damage 
to  be  compensated.  The  notion  of  actual  loss  referred  to  in  this  provision  is  taken  from  the 
case-law  of  the  Court  of  Justice,  and  does  not  exclude  any  type  of  damage  (material  or 
immaterial) that might have been caused by an infringement of the competition rules. 

Article 3 recalls the principles of effectiveness and equivalence which must be complied with 
by national rules and procedures relating to actions for damages. 

4.2. 

Disclosure of evidence (Chapter II: Articles 5 – 8) 

Establishing  an  infringement  of  the  competition  rules,  quantifying  antitrust  damages,  and 
establishing  causality  between  the  infringement  and  the  harm  suffered  typically  require  a 
complex factual and economic analysis. Much of the relevant evidence a claimant will need to 
prove  his  case  is  in  the  possession  of  the  defendant  or  of  third  persons  and  is  often  not 
sufficiently  known  or  accessible  to  the  claimants  (‘information  asymmetry’).  It  is  widely 
recognised  that  the  difficulty  a  claimant  encounters  in  obtaining  all  necessary  evidence 
constitutes  in  many  Member  States  one  of  the  key  obstacles  to  damages  actions  in 
competition  cases.  In  so  far  as  the  burden  of  proof  falls  on  the  (allegedly)  infringing 
undertaking41, it too may need to have access to evidence in the hands of the claimant and/or 

40 
41 

Article 3(1) of Regulation No 1/2003.  
e.g. with regard to the passing-on defence, see section 4.4 below. 

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of  a  third  party.  The  opportunity  to  ask  the  judge  to  order  disclosure  of  information  is 
therefore available to both parties to the proceedings. 

The disclosure regime in the proposed Directive builds on the approach adopted in Directive 
2004/48/EC on the enforcement of intellectual property rights42. Its aim is to ensure that in all 
Member  States  there  is  a  minimum  level  of  effective  access  to  the  evidence  needed  by 
claimants and/or defendants to prove their antitrust damages claim and/or a related defence. 
At  the  same  time,  the  proposed  Directive  avoids  overly  broad  and  costly  disclosure 
obligations that could create undue burdens for the parties involved and risks of abuses. The 
Commission has also paid particular attention to ensuring that the proposal is compatible with 
the different legal orders of the Member States. To this end, the proposal follows the tradition 
of the great majority of Member States and relies on the central function of the court seized 
with an action for damages: disclosure of evidence held by the opposing party or a third party 
can  only  be  ordered  by  judges  and  is  subject  to  strict  and  active  judicial  control  as  to  its 
necessity, scope and proportionality. 

National  courts  should  have  at  their  disposal  effective  measures  to  protect  any  business 
secrets or otherwise confidential information disclosed during the proceedings. Furthermore, 
disclosure should not be allowed where it would be contrary to certain rights and obligations 
such as the obligation of professional secrecy. Courts must also be able to impose sanctions 
which  are  sufficiently  deterrent  to  prevent  destruction  of  relevant  evidence  or  refusal  to 
comply with a disclosure order. 

To  prevent  that  the  disclosure  of  evidence  jeopardises  the  public  enforcement  of  the 
competition rules by a competition authority, the proposed Directive also establishes common 
EU-wide limits to disclosure of evidence held in the file of a competition authority: 

(a) 

(b) 

(c) 

First,  it  provides  for  absolute  protection  for  two  types  of  documents  which  are 
considered  to  be  crucial  for  the  effectiveness  of  public  enforcement  tools.  The 
documents  referred  to  are  the  leniency  corporate  statements  and  settlement 
submissions.  The  disclosure  of  these  documents  risks  seriously  affecting  the 
effectiveness  of  the  leniency  programme  and  of  settlements  procedures.  Under  the 
proposed Directive, a national court can never order disclosure of such documents in 
an action for damages. 

Second,  it  provides  for  temporary  protection  for  documents  that  the  parties  have 
specifically  prepared  for  the  purpose  of  public  enforcement  proceedings  (e.g.  the 
party’s  replies  to  the  authority’s  request  for  information)  or  that  the  competition 
authority  has  drawn  up  in  the  course  of  its  proceedings  (e.g.  a  statement  of 
objections).  Those  documents  can  be  disclosed  for  the  purpose  of  an  antitrust 
damages action only after the competition authority has closed its proceedings. 

Apart  from  limiting  the  national  court’s  ability  to  order  disclosure,  the  above 
protective measures should also come into play if and when the protected documents 
have  been  obtained  in  the  context  of  public  enforcement  proceedings  (e.g.  in  the 
exercise of one of the parties’ right of defence). Therefore, where one of the parties 
in  the  action  for  damages  had  obtained  those  documents  from  the  file  of  a 
competition  authority,  such  documents  are  not  admissible  as  evidence  in  an  action 
for  damages  (documents  of  category  (a)  above)  or  are  admissible  only  when  the 
authority has closed its proceedings (documents of category (b) above). 

42 

Directive  2004/48/EC  of  the  European  Parliament  and  of  the  Council  of  29  April  2004  on  the 
enforcement of intellectual property rights, OJ L 157, 30.04.2004, p. 45. 

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(d) 

Documents which fall outside the above categories can be disclosed by court order at 
any  moment  in  time.  However,  when  doing  so,  national  courts  should  refrain  from 
ordering  the  disclosure  of  evidence  by  reference  to  information  supplied  to  a 
competition authority for the purpose of its proceedings43. While the investigation is 
on-going,  such  disclosure  could  hinder  public  enforcement  proceedings,  since  it 
would reveal what information is in the file of a competition authority and could thus 
be  used  to  unravel  the  authority’s  investigation  strategy.  However,  the  selection  of 
pre-existing documents that are submitted to a competition authority for the purposes 
of the proceedings is in itself relevant, as undertakings are invited to supply targeted 
evidence  in  view  of  their  cooperation.  The  willingness  of  undertakings  to  supply 
such  evidence  exhaustively  or  selectively  when  cooperating  with  competition 
authorities  may  be  hindered  by  disclosure  requests  that  identify  a  category  of 
documents by reference to their presence in the file of a competition authority rather 
than  their  type,  nature  or  object  (e.g.  requests  for  all  documents  in  the  file  of  a 
competition authority or all documents submitted thereto by a party). Therefore, such 
global disclosure requests for documents should normally be deemed by the court as 
disproportionate  and  not  complying  with  the  requesting  party's  duty  to  specify 
categories of evidence as precisely and narrowly as possible. 

(e) 

Finally,  to  prevent  documents  obtained  through  access  to  a  competition  authority’s 
file becoming an object of trade, only the person who obtained access to the file (or 
his  legal  successor  in  the  rights  related  to  the  claim)  should  be  able  to  use  those 
documents as evidence in an action for damages. 

To achieve coherence regarding the rules on disclosure and the use of certain documents from 
the file of a competition authority, it is necessary to also amend existing rules on the conduct 
of  Commission's  proceedings  laid  down  in  Commission  Regulation  773/200444,  notably  as 
regards  access  to  the  Commission's  file  and  use  of  documents  obtained  therefrom,  and  the 
explanatory Notices published by the Commission45. The Commission intends doing so once 
the present Directive is adopted by the European Parliament and Council. 

4.3. 

Effect  of  national  decisions,  limitation  periods  and  joint  and  several  liability 
(Chapter III: Articles 9 – 11) 

4.3.1.  Probative effect of national decisions 

Pursuant  to  Article  16(1)  of  Regulation  No  1/2003,  a  Commission  decision  relating  to 
proceedings  under  Article  101  or  102  of  the  Treaty  has  a  probative  effect  in  subsequent 
actions  for  damages,  as  a  national  court  cannot  take  a  decision  running  counter  to  such 
Commission  decision46.  It  is  appropriate  to  give  final  infringement  decisions  by  national 
competition  authorities  (or  by  a  national  review  court)  similar  effect.  If  an  infringement 

43 

44 

45 

46 

Obviously,  the  same  limitation  applies  when  national  courts  order  the  disclosure  of  documents  of 
category (b) above, once a competition authority has closed its proceedings. 
Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by 
the Commission pursuant to Articles 81 and 82 of the EC Treaty, OJ L123, 27.04.2004, p. 18. 
Commission  Notice  on  the  cooperation  between  the  Commission  and  the  courts  of  the  EU  Member 
States in the application of Articles 81 and 82 EC, OJ C101, 27.4.2004, p. 54; Commission Notice on 
the rules for access to the Commission file in cases pursuant to Articles 81 and 82 of the EC Treaty, 
Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004, OJ C 325, 
22.12.2005,  p.  7;  and  Commission  Notice  on  the  conduct  of  settlement  procedures  in  view  of  the 
adoption  of Decisions pursuant  to  Article  7  and Article  23 of  Council Regulation  (EC)  No  1/2003 in 
cartel cases, OJ C 167, 2.7.2008, p. 1. 
Case C-199/11 European Community v Otis and others, [2012] ECR I-0000. 

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decision  has  already  been  taken  and  has  become  final,  the  possibility  for  the  infringing 
undertaking to re-litigate the same issues in subsequent damages actions would be inefficient, 
cause  legal  uncertainty  and  lead  to  unnecessary  costs  for  all  parties  involved  and  for  the 
judiciary. 

The  proposed  probative  effect  of  final  infringement  decisions  of  national  competition 
authorities does not entail any lessening of judicial protection for the undertakings concerned, 
as  infringement  decisions  by  national  competition  authorities  are  still  subject  to  judicial 
review. Moreover, throughout the EU, undertakings enjoy a comparable level of protection of 
their  rights  of  defence,  as  enshrined  in  Article  48(2)  of  the  EU  Charter  on  Fundamental 
Rights. Finally, the rights and obligations of national courts under Article 267 of the Treaty 
remain unaffected by this rule. 

4.3.2.  Limitation periods 

To  give  victims  of  a  competition  law  infringement  a  reasonable  opportunity  to  bring  a 
damages action, while ensuring an appropriate level of legal certainty for all parties involved, 
the Commission proposes that the national rules on limitation periods for a damages action: 

– 

– 

– 

allow victims sufficient time (at least five years) to bring an action after they became 
aware of the infringement, the harm it caused and the identity of the infringer; 

prevent a limitation period from starting to run before the day on which a continuous 
or repeated infringement ceases; and 

in case a competition authority opens proceedings into a suspected infringement, the 
limitation  period  to  bring  an  action  for  damages  relating  to  such  infringement  is 
suspended until at least one year after a decision is final or proceedings are otherwise 
terminated. 

4.3.3. 

Joint and several liability 

Where several undertakings infringe the competition rules jointly — typically in the case of a 
cartel — it is appropriate that they be jointly and severally liable for the entire harm caused by 
the  infringement.  While  the  proposed  Directive  builds  on  this  general  rule,  it  introduces 
certain modifications with regard to the liability regime of immunity recipients. The objective 
of  these  modifications  is  to  safeguard  the  attractiveness  of  the  leniency  programmes  of  the 
Commission  and  of  the  NCAs,  which  are  key  instruments  in  detecting  cartels  and  thus  of 
crucial importance for the effective public enforcement of the competition rules. 

Indeed, as leniency recipients are less likely to appeal an infringement decision, this decision 
often  becomes  final  for  them  earlier  than  for  other  members  of  the  same  cartel.  This  may 
make leniency recipients the primary targets of damages actions. To limit the disadvantageous 
consequences of such exposure, while not unduly limiting the possibilities for injured parties 
to  obtain  full  compensation  for  the  loss  suffered,  it  is  proposed  to  limit  the  immunity 
recipient’s liability, as well as his contribution owed to co-infringers under joint and several 
liability,  to  the  harm  he  caused  to  his  own  direct  or  indirect  purchasers  or,  in  the  case  of  a 
buying cartel, his direct or indirect providers. Where a cartel has caused harm only to others 
than the customers/providers of the infringing undertakings, the immunity recipient would be 
responsible only for his share of the harm caused by the cartel. How that share is determined 
(e.g.  turnover,  market  share,  role  in  the  cartel,  etc.),  is  left  to  the  discretion  of  the  Member 
States, as long as the principles of effectiveness and equivalence are respected. 

The protection of immunity recipients cannot, however, interfere with the victims’ EU right to 
full  compensation.  The  proposed  limitation  on  the  immunity  recipient’s  liability  cannot 
therefore be absolute: the immunity recipient remains fully liable as a last-resort debtor if the 

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injured parties are unable to obtain full compensation from the other infringers. To guarantee 
the effet utile of this exception, Member States have to make sure that injured parties can still 
claim  compensation  from  the  immunity  recipient  at  the  time  they  have  become  aware  that 
they cannot obtain full compensation from the co-cartelists.  

4.4. 

Passing-on of overcharges (Chapter IV: Articles 12 – 15) 

Persons  who  have  suffered  harm  caused  by  an  infringement  of  the  competition  rules  are 
entitled to compensation, regardless of whether they are direct or indirect purchasers. Injured 
parties are entitled to compensation for actual loss (overcharge harm) and for loss of profit. 
When an injured party has reduced his actual loss by passing it on, partly or entirely, to his 
own purchasers, the loss thus passed on no longer constitutes harm for which the party that 
passed it on has to be compensated. However, where a loss is passed on, the price increase by 
the direct purchaser is likely to lead to a reduction in the volume sold. That loss of profit, as 
well  as  the  actual  loss  that  was  not  passed  on  (in  the  case  of  partial  passing-on)  remains 
antitrust harm for which the injured party can claim compensation. 

If  the  harm  is  suffered  as  a  result  of  an  infringement  relating  to  a  supply  to  the  infringing 
undertaking,  passing-on  could  also  take  place  in  an  upwards  direction  on  the  supply  chain. 
This would, for example, be the case when, as a result of a buying cartel, the suppliers of the 
cartelists charge lower prices, and those suppliers then in turn require lower prices from their 
own suppliers. 

To ensure that only the direct and indirect purchasers that actually suffered overcharge harm 
can  effectively  claim  compensation,  the  proposed  Directive  explicitly  recognises  the 
possibility for the infringing undertaking to invoke the passing-on defence. 

However, in situations where the overcharge was passed on to natural or legal persons at the 
next level of the supply  chain for whom it is  legally impossible to  claim  compensation,  the 
passing-on  defence  cannot  be  invoked.  Indirect  purchasers  may  be  faced  with  the  legal 
impossibility of claiming compensation because of national rules on causality (including rules 
on  foreseeability  and  remoteness).  Allowing  the  passing-on  defence  when  it  is  legally 
impossible  for  the  party  to  whom  the  overcharge  was  allegedly  passed  on  to  claim 
compensation  would  be  unjustified,  since  it  would  mean  that  the  infringing  undertaking  is 
unduly  freed  from  liability  for  the  harm  he  caused.  The  burden  of  proving  the  passing-on 
always lies with the infringing undertaking. In the case of an action for damages brought by 
an  indirect  purchaser,  this  implies  a  rebuttable  presumption  pursuant  to  which,  subject  to 
certain  conditions,  a  passing-on  to  that  indirect  purchaser  occurred.  As  regards  the 
quantification of the passing-on, the national court should have the power to estimate which 
share of the overcharge has been passed on to the level of indirect purchasers in the dispute 
pending  before  it.  Where  injured  parties  from  different  levels  of  the  supply  chain  bring 
separate  actions  for  damages  that  are  related  to  the  same  competition  law  infringement, 
national  courts  should  take  due  account,  as  far  as  allowed  under  applicable  national  or  EU 
law,  of  parallel  or  preceding  actions  (or  judgments  resulting  from  such  actions)  in  order  to 
avoid  under-  and  over-compensation  of  the  harm  caused  by  that  infringement  and  to  foster 
consistency  between  judgments  resulting  from  such  linked  proceedings.  Actions  that  are 
pending before the courts of different Member States may be considered as related within the 
meaning  of  Article  30  of  Regulation  No  1215/201247,  meaning  that  they  are  so  closely 
connected  that  it  is  expedient  to  hear  and  determine  them  together  to  avoid  the  risk  of 

47 

Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on 
jurisdiction  and  the recognition  and  enforcement  of judgments  in  civil and  commercial  matters,  OJ  L 
351, 20.12.2012, p. 1. 

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irreconcilable  judgments  resulting  from  separate  proceedings.  As  a  consequence,  any  court 
other  than  the  court  first  seized  may  stay  its  proceedings  or  decline  jurisdiction  if  the  court 
first seized has jurisdiction over the actions in question and its law permits the consolidation 
of the actions. 

Both  Regulation  No  1215/2012  and  this  proposed  Directive  thus  seek  to  encourage 
consistency between judgments resulting from related actions. To achieve that, the proposed 
Directive  has  an  even  wider  scope  than  Regulation  No  1215/2012,  as  it  also  covers  the 
situation  of  subsequent  actions  for  damages  relating  to  the  same  competition  law 
infringement, brought by injured parties at different levels of the supply chain. These actions 
can be brought in the same court, in different courts in the same Member State or in different 
courts  of  different  Member  States.  In  all  instances,  the  proposed  Directive  encourages  the 
consistency of linked proceedings and judgments. 

4.5. 

Quantification of harm (Chapter V: Article 16) 

Proving and quantifying antitrust harm is generally very fact-intensive and costly, as it may 
require  the  application  of  complex  economic  models.  To  assist  victims  of  a  cartel  in 
quantifying  the  harm  caused  by  the  competition  law  infringement,  this  proposed  Directive 
provides for a rebuttable  presumption with regard  to  the  existence  of  harm  resulting  from  a 
cartel.  Based  on  the  finding  that  more  than  9  out  of  10  cartels  indeed  cause  an  illegal 
overcharge48, this alleviates the injured party’s difficulties and costs related to proving that the 
cartel caused higher prices to be charged than if the cartel had not existed. 

The infringing undertaking could rebut this presumption and use the evidence at its disposal 
to prove that the cartel did not cause harm. The burden of proof is thus placed on the party 
which already has in its possession the necessary evidence to meet this burden of proof. The 
costs of disclosure, which would most likely be necessary for the injured parties to prove the 
existence of harm, are thus avoided. 

Apart from the above presumption, antitrust harm is quantified on the basis of national rules 
and  procedures.  These  must,  however,  be  in  line  with  the  principles  of  equivalence  and  of 
effectiveness. The latter, in particular, dictates that the burden and the level of proof may not 
render the injured party’s right to damages practically impossible or excessively difficult. In 
terms of quantifying antitrust  harm, where the actual situation needs to be compared with a 
hypothetical one, this  means  that  judges must be able to estimate the amount of harm. This 
increases the likelihood that victims will actually obtain an adequate amount of compensation 
for the harm they have suffered. 

To make it easier for national courts to quantify harm, the Commission is also providing non-
binding  guidance  on  this  topic  in  its  Communication  on  quantifying  harm  in  actions  for 
damages  based  on  breaches  of  Article  101  or  102  of  the  Treaty  on  the  Functioning  of  the 
European  Union49.  The  Communication  is  accompanied  by  a  Commission  Staff  Working 
Paper taking the form of a Practical Guide on quantifying harm in actions for damages based 
on  breaches  of  EU  competition  law.  This  Practical  Guide  explains  the  strengths  and 
weaknesses  of  various  methods  and  techniques  available  to  quantify  antitrust  harm.  It  also 
presents and discusses a range of practical examples, which illustrate the typical effects that 
infringements of the EU  competition  rules  tend to have and how the available  methods  and 
techniques can be applied in practice. 

48 

49 

‘Quantifying  antitrust  damages  —  Towards  non-binding  guidance  for  courts’,  accessible  at: 
http://ec.europa.eu/competition/antitrust/actionsdamages/quantification_study.pdf, p. 91. 
Communication from the Commission on quantifying harm in actions for damages based on breaches of 
Article 101 or 102 of the Treaty on the Functioning of the European Union, C(2013) 3440. 

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4.6. 

Consensual Dispute Resolution (Chapter VI: Articles 17-18) 

One of the primary objectives of the proposed Directive is to enable victims of a competition 
law  infringement  to  obtain  full  compensation  for  the  harm  suffered.  That  objective  can  be 
achieved  either  through  a  damages  action  in  court  or  through  a  consensual  out-of-court 
settlement between the parties. To incentivise parties to settle their dispute consensually, the 
proposed  Directive  aims  at  optimising  the  balance  between  out-of-court  settlements  and 
actions for damages. 

It therefore contains the following provisions: 

(i) 

(ii) 

(iii) 

(iv) 

suspension  of  limitation  periods  for  bringing  actions  for  damages  as  long  as  the 
infringing  undertaking  and  the  injured  party  are  engaged  in  consensual  dispute 
resolution; 

suspension of pending proceedings for the duration of consensual dispute resolution; 

reduction  of  the  settling  injured  party’s  claim  by  the  settling  infringer’s  share  of 
harm. For the remainder of the claim, the settling infringer could only be required to 
pay  damages  if  the  non-settling  co-infringers  were  unable  to  fully  compensate  the 
injured party; and 

damages  paid  through  consensual  settlements  to  be  taken  into  account  when 
determining  the  contribution  that  a  settling  infringer  needs  to  pay  following  a 
subsequent  order  to  pay  damages.  In  this  context,  ‘contribution’  refers  to  the 
situation where the settling infringer was not a defendant in the action for damages, 
but is asked by co-infringers who were ordered to pay damages to contribute under 
the rules of joint and several liability. 

5. 

BUDGETARY IMPLICATIONS 

The proposed Directive does not have any budgetary implications. 

6. 

ADDITIONAL INFORMATION 

6.1. 

Repeal of existing legislation 

No previous legislative act is repealed through this present proposal. 

6.2. 

Review 

Article  21  of  the  proposed  Directive  requires  the  Commission  to  report  to  the  European 
Parliament  and  the  Council  on  its  effects  at  the  latest  five  years  after  the  deadline  for 
transposition into national law. 

Once the proposed Directive has been adopted, the Commission will continue to monitor the 
legal framework for antitrust damages actions in the Member States, focusing primarily on the 
achievement of the two main objectives of the proposed Directive, i.e. 

(i) 

(ii) 

optimising  the  interaction  between  the  public  and  private  enforcement  of 
competition law; and 

ensuring that victims of infringements of the EU competition rules can obtain 
full compensation for the harm they have suffered. 

The  Commission  will  assess  whether  the  Directive  is  successful  in  removing  inefficiencies 
and obstacles preventing full compensation of victims of antitrust infringements and whether 
the  interaction  between  public  and  private  enforcement  of  competition  law  is  functioning 

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smoothly, to guarantee the optimal overall enforcement of EU competition law. As part of this 
monitoring process, the Commission will continue its dialogue with all relevant stakeholders. 

Finally, an ex-post evaluation as regards the need for further modifications will be made once 
the measures put forward by the Directive are being fully implemented in the Member States, 
i.e. at least five years after the deadline for transposition of the Directive. 

6.3. 

Explanatory documents 

The proposed Directive sets out specific measures to approximate substantive and procedural 
national  rules  governing  actions  for  damages  for  infringements  of  the  competition  law 
provisions  of  the  Member  States  and  of  the  European  Union.  There  are  several  legal 
obligations  stemming  from  the  proposed  Directive.  Its  effective  transposition  will  therefore 
require that specific and targeted amendments are made to the relevant national rules. In order 
for  the  Commission  to  monitor  the  correct  implementation,  it  is  thus  not  sufficient  for 
Member States to transmit the text of the implementing provisions, as an overall assessment 
of  the  resulting  regime  under  national  law  may  be  necessary.  For  these  reasons,  Member 
States should also transmit to the Commission explanatory documents showing which existing 
or new provisions under national law are meant to implement the individual measures set out 
in the proposed Directive. 

6.4. 

European Economic Area 

The  proposed  Directive  relates  to  the  effective  enforcement  of  Articles  101  and  102  of  the 
Treaty,  by  optimising  the  interaction  between  the  public  and  private  enforcement  of  these 
provisions  as  well  as  by  improving  the  conditions  under  which  victims  of  competition  law 
infringements  can  claim  damages.  The  proposed  Directive  contributes  to  the  proper 
functioning  of  the  internal  market  as  it  creates  a  more  level  playing  field  both  for  the 
undertakings that infringe the competition rules and for the victims of this illegal behaviour. 
Due to these objectives in the fields of competition and the internal market, which form part 
of the EEA legal rules, the proposal is relevant for the EEA. 

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2013/0185 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on certain rules governing actions for damages under national law for infringements of 
the competition law provisions of the Member States and of the European Union 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 103 and 114 thereof, 
Having regard to the proposal from the European Commission50, 

After transmission of the draft legislative act to the national Parliaments, 
Having regard to the opinion of the European Economic and Social Committee51, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

Articles  101  and  102  of  the  Treaty  on  the  Functioning  of  the  European  Union 
(hereinafter referred to as the Treaty) are a matter of public policy and must be applied 
effectively  throughout  the  Union  to  ensure  that  competition  in  the  internal  market  is 
not distorted. 

The public enforcement of those Treaty provisions is carried out by the Commission 
using  the  powers  provided  by  Council  Regulation  (EC)  No  1/2003  of  16  December 
2002 on the implementation of the rules on competition laid down in Articles 81 and 
82 of the Treaty establishing the European Community52 (hereinafter: Regulation No 
1/2003).  Public  enforcement  is  also  carried  out  by  national  competition  authorities, 
which may take the decisions listed in Article 5 of Regulation No 1/2003. 

Articles  101  and  102  of  the  Treaty  produce  direct  effects  in  relations  between 
individuals  and  create,  for  the  individuals  concerned,  rights  and  obligations  which 
national  courts  must  enforce.  National  courts  thus  have  an  equally  essential  part  to 
play in applying the competition rules (private enforcement). When ruling on disputes 
between  private  individuals,  they  protect  subjective  rights  under  Union  law,  for 
example by awarding damages to the victims of infringements. The full effectiveness 
of  Articles  101  and  102  of  the  Treaty,  and  in  particular  the  practical  effect  of  the 
prohibitions  laid  down  therein,  requires  that  anyone  —  be  they  an  individual, 
including  consumers  and  undertakings,  or  a  public  authority  —  can  claim 
compensation before national courts for the harm caused to them by an infringement 

50 
51 
52 

OJ C , , p. . 
OJ C , , p. . 
OJ L 1, 4.1.2003, p. 1. With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have 
become respectively Articles 101 and 102 TFEU. The two sets of provisions are identical in substance.  

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(4) 

(5) 

(6) 

(7) 

(8) 

of those provisions. This Union right to compensation applies equally to breaches of 
Articles 101 and 102 by public undertakings or undertakings entrusted with special or 
exclusive rights by Member States within the meaning of Article 106 of the Treaty. 

The  Union  right  to  compensation  for  antitrust  harm  requires  each  Member  State  to 
have  procedural  rules  ensuring  the  effective  exercise  of  that  right.  The  need  for 
effective  procedural  remedies  also  follows  from  the  right  to  effective  judicial 
protection as laid down in Article 47, first paragraph, of the Charter of Fundamental 
Rights  of  the  European  Union53  and  in  Article  19(1),  second  subparagraph  of  the 
Treaty on European Union. 

To  ensure  effective  public  and  private  enforcement  of  the  competition  rules,  it  is 
necessary  to  regulate  the  way  the  two  forms  of  enforcement  are  coordinated,  for 
instance  the  arrangements  for  access  to  documents  held  by  competition  authorities. 
Such coordination at Union level will also avoid divergence of applicable rules, which 
could jeopardise the proper functioning of the internal market. 

In accordance with Article 26(2) of the Treaty, the internal market comprises an area 
without internal frontiers in which the free movement of goods, persons, services and 
capital  is  ensured.  There  exist  marked  differences  between  the  rules  in  the  Member 
States  governing  actions  for  damages  for  infringements  of  national  or  Union 
competition  law.  Those  differences  lead  to  uncertainty  concerning  the  conditions 
under  which  injured  parties  can  exercise  the  right  to  compensation  they  derive  from 
the  Treaty,  and  affect  the  substantive  effectiveness  of  such  right.  As  injured  parties 
often choose the forum of their Member State of establishment to claim damages, the 
discrepancies  between  the  national  rules  lead  to  an  uneven  playing  field  as  regards 
actions for damages and may affect competition on the markets on which these injured 
parties, as well as the infringing undertakings, operate.  

Undertakings  established  and  operating  in  different  Member  States  are  subject  to 
procedural rules that significantly affect the extent to which they can be held liable for 
infringements  of  competition  law.  This  uneven  enforcement  of  the  Union  right  to 
compensation  may  result  in  a  competitive  advantage  for  some  undertakings  which 
have breached Articles 101 or 102 of the Treaty, and a disincentive to the exercise of 
the rights of establishment and provision of goods or services in those Member States 
where the right to compensation is more effectively enforced. As such, the differences 
in  the  liability  regimes  applicable  in  the  Member  States  may  negatively  affect  both 
competition and the proper functioning of the internal market. 

It is therefore necessary to ensure a more level playing field for undertakings operating 
in  the  internal  market  and  to  improve  the  conditions  for  consumers  to  exercise  the 
rights  they  derive  from  the  internal  market.  It  is  also  appropriate  to  increase  legal 
certainty and to reduce the differences between the Member States as to the national 
rules  governing  actions  for  damages  for  infringements  of  European  competition  law 
and, when applied in parallel to the latter, national competition law. An approximation 
of these rules will also help to prevent the emergence of wider differences between the 
Member States’ rules governing actions for damages in competition cases. 

(9) 

Article  3(1)  of  Regulation  (EC)  No  1/2003  provides  that  ‘where  the  competition 
authorities of the Member States or national courts apply national competition law to 
agreements,  decisions  by  associations  of  undertakings  or  concerted  practices  within 

53 

OJ C 326, 26.10.2012, p. 391. 

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the meaning of Article [101(1)] of the Treaty which may affect trade between Member 
States within the meaning of that provision, they shall also apply Article [101] of the 
Treaty  to  such  agreements,  decisions  or  concerted  practices.  Where  the  competition 
authorities of the Member States or national courts apply national competition law to 
any abuse prohibited by Article [102] of the Treaty, they shall also apply Article [102] 
of the Treaty.’ In the interest of the proper functioning of the internal market and with 
a  view  to  greater  legal  certainty  and  a  more  level  playing  field  for  undertakings  and 
consumers,  it  is  appropriate  that  the  scope  of  this  Directive  should  extend  to  actions 
for damages based on the infringement of national competition law where it is applied 
pursuant to Article 3(1) of  Regulation  (EC)  No  1/2003.  Applying diverging rules on 
civil  liability  for  infringements  of  Articles  101  and  102  of  the  Treaty  and  for 
infringements of rules of national competition law which must be applied in the same 
case  and  in  parallel  to  Union  competition  law  would  otherwise  adversely  affect  the 
position of claimants in the same case and the scope of their claims, and constitute an 
obstacle to the proper functioning of the internal market. 

In the absence of Union law, actions for damages are governed by the national rules 
and procedures of the Member States. All national rules governing the exercise of the 
right to compensation for harm resulting from an infringement of Article 101 or 102 of 
the Treaty, including those concerning aspects not dealt with in this Directive such as 
the notion of causal relationship between the infringement and the harm, must observe 
the  principles  of  effectiveness  and  equivalence.  This  means  that  they  may  not  be 
formulated  or  applied  in  a  way  that  makes  it  excessively  difficult  or  practically 
impossible  to  exercise  the  right  to  compensation  guaranteed  by  the  Treaty,  and  they 
may  not  be  formulated  or  applied  less  favourably  than  those  applicable  to  similar 
domestic actions.  

(10) 

(11)  This  Directive  reaffirms 

the  Union  right 

the  acquis  communautaire  on 

to 
compensation  for  harm  caused  by  infringements  of  Union  competition  law, 
particularly regarding standing and the definition of damage, as it has been stated in 
the case-law of the Court of Justice of the European Union, and does not pre-empt any 
further  development  thereof.  Anyone  who  has  suffered  harm  caused  by  an 
infringement can claim compensation for the actual loss (damnum emergens), for the 
gain of which he has been deprived (loss of profit or lucrum cessans) and payment of 
interest  accruing  from  the  time  the  harm  occurred  until  compensation  is  paid.  This 
right  is  recognised  for  any  natural  or  legal  person  —  consumers,  undertakings  and 
public  authorities  alike  —  irrespective  of  the  existence  of  a  direct  contractual 
relationship with the infringing undertaking, and regardless of whether or not there has 
been  a  prior  finding  of  an  infringement  by  a  competition  authority.  This  Directive 
should not require Member States to introduce collective redress mechanisms for the 
enforcement of Articles 101 and 102 of the Treaty. 

(12)  Actions for damages for infringements of national or Union competition law typically 
require a complex factual and economic analysis. The evidence necessary to prove a 
claim for damages is often held exclusively by the opposing party or by third parties, 
and is not sufficiently known by and accessible to the claimant. In such circumstances, 
strict legal requirements for claimants to assert in detail all the facts of their case at the 
beginning of an action and to proffer precisely specified pieces of supporting evidence 
can unduly impede the effective exercise of the right to compensation guaranteed by 
the Treaty. 

(13)  Evidence is an important element for bringing actions for damages for infringement of 
national or Union competition law. However, as antitrust litigation is characterised by 

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an information asymmetry, it is appropriate to ensure that injured parties are afforded 
the right to obtain the disclosure of evidence relevant to their claim, without it being 
necessary for them to specify individual items of evidence. In order to ensure equality 
of arms, those means should also be available to defendants in actions for damages, so 
that  they  can  request  the  disclosure  of  evidence  by  those  injured  parties.  National 
courts  can  also  order  evidence  to  be  disclosed  by  third  parties.  Where  the  national 
court  wishes  to  order  disclosure  of  evidence  by  the  Commission,  the  principle  of 
sincere cooperation between the European Union and the Member States (Article 4(3) 
TEU) and Article 15(1) of Regulation No 1/2003 as regards requests for information 
are applicable. 

(14)  Relevant evidence should be disclosed upon decision of the court and under its strict 
control,  especially  as  regards  the  necessity  and  proportionality  of  the  disclosure 
measure.  It  follows  from  the  requirement  of  proportionality  that  disclosure  requests 
can only be triggered once an injured party has made it plausible, on the basis of facts 
which  are  reasonably  available  to  him,  that  the  party  has  suffered  harm  that  was 
caused  by  the  defendant.  The  request  for  disclosure  should  refer  to  categories  of 
evidence  which  are  as  precise  and  narrow  as  possible  on  the  basis  of  reasonably 
available facts.  

(15)  The requirement of proportionality should also be carefully assessed when disclosure 
risks  unravelling  the  investigation  strategy  of  a  competition  authority  by  revealing 
which documents are part of the file or causing a negative bearing on the way in which 
companies  cooperate  with  the  competition  authority.  The  disclosure  request  should 
therefore  not  be  deemed  proportionate  when  it  refers  to  the  generic  disclosure  of 
documents  in  the  file  of  a  competition  authority  relating  to  a  certain  case,  or  of 
documents submitted by a party in the context of a certain case. Such wide disclosure 
requests  would  also  not  be  compatible  with  the  requesting  party's  duty  to  specify 
categories of evidence as precisely and narrowly as possible. 

(16)  Where the court requests a competent court of another Member State to take evidence 
or  requests  evidence  to  be  taken  directly  in  another  Member  State,  the  provisions  of 
Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the 
courts of the Member States in the taking of evidence in civil or commercial matters54 
apply. 

(17)  While  relevant  evidence  containing  business  secrets  or  otherwise  confidential 
information should in principle be available in actions for damages, such confidential 
information needs to be appropriately protected. National courts should therefore have 
at  their  disposal  a  range  of  measures  to  protect  such  confidential  information  from 
being disclosed during the proceedings. These may include the possibility of hearings 
in private, restricting the circle of persons entitled to see the evidence, and instruction 
of experts to produce summaries of the information in an aggregated or otherwise non-
confidential  form.  Measures  protecting  business  secrets  and  other  confidential 
information should not practically impede the exercise of the right to compensation. 

(18)  The  effectiveness  and  consistency  of  the  application  of  Articles  101  and  102  of  the 
Treaty by the Commission and the national competition authorities require a common 
approach across the Union regarding the interaction of rules on disclosure of evidence 
and  the  way  these  Articles  are  enforced  by  a  competition  authority.  Disclosure  of 
evidence  should  not  unduly  detract  from  the  effectiveness  of  enforcement  of 

54 

OJ L 174, 27.6.2001, p. 1. 

EN 

24 

   EN 

 
                                                 
competition  law  by  a  competition  authority.  The  limitations  on  the  disclosure  of 
evidence should not prevent competition authorities from publishing their decisions in 
accordance with applicable Union or national rules. 

(19)  Leniency  programmes  and  settlement  procedures  are  important  tools  for  the  public 
enforcement  of  Union  competition  law  as  they  contribute  to  the  detection,  efficient 
prosecution  and  sanctioning  of  the  most  serious  competition  law  infringements. 
Undertakings  may  be  deterred  from  co-operating  in  this  context  if  disclosure  of 
documents they solely produce to this end were to expose them to civil liability under 
worse  conditions  than  the  co-infringers  that  do  not  co-operate  with  competition 
authorities.  To  ensure  that  undertakings  are  willing  to  produce  voluntary  statements 
acknowledging their participation in an infringement of Union or national competition 
law to a competition authority under a leniency programme or a settlement procedure, 
such statements should be excepted from disclosure of evidence.  

(20) 

In  addition,  an  exception  to  disclosure  should  apply  to  any  disclosure  measure  that 
would  unduly  interfere  with  an  ongoing  investigation  by  a  competition  authority 
concerning  an  infringement  of  national  or  Union  competition  law.  Information  that 
was  prepared  by  a  competition  authority  in  the  course  of  its  proceedings  for  the 
enforcement of national or Union competition law (such as a Statement of Objections) 
or by a party to those proceedings (such as replies to requests for information of the 
competition  authority)  should  therefore  be  disclosable  in  actions  for  damages  only 
after  the  competition  authority  has  found  an  infringement  of  the  national  or  Union 
competition rules or has otherwise closed its proceedings. 

(21)  Apart from the evidence referred to in recitals (19) and(20), national courts should be 
able to order, in the context of an action for damages, disclosure of evidence that exists 
irrespective of the proceedings of a competition authority (‘pre-existing information’).  

(22)  Any  natural  or  legal  person  who  obtains  evidence  through  access  to  the  file  of  a 
competition authority in exercising his rights of defence in relation to investigations by 
a  competition  authority  can  use  that  evidence  for  the  purposes  of  an  action  for 
damages  to  which  he  is  a  party.  Such  use  should  also  be  allowed  for  the  natural  or 
legal  person  that  succeeded  in  his  rights  and  obligations,  including  through  the 
acquisition of his claim. In case the evidence was obtained by a legal person forming 
part of a corporate group constituting one undertaking for the application of Articles 
101  and  102  of  the  Treaty,  the  use  of  such  evidence  is  also  allowed  for  other  legal 
entities belonging to the same undertaking.  

(23)  However, the use referred to in the previous recital may not unduly detract from the 
effective  enforcement  of  competition  law  by  a  competition  authority.  Limitations  to 
disclosure referred to in recitals (19) and (20) should thus equally apply to the use of 
evidence which is obtained solely through access to the file of a competition authority. 
Moreover, evidence obtained from a competition authority in the context of exercise of 
the  rights  of  defence  should  not  become  an  object  of  trade.  The  possibility  of  using 
evidence that was obtained solely through access to the file of a competition authority 
should  therefore  be  limited  to  the  natural  or  legal  person  that  exercised  his  rights  of 
defence and his legal successors, as mentioned in the previous recital. This limitation 
does  not,  however,  prevent  a  national  court  from  ordering  the  disclosure  of  that 
evidence under the conditions provided for in this Directive. 

(24)  Making  a  claim  for  damages,  or  the  start  of  an  investigation  by  a  competition 
authority, entails a risk that the undertakings concerned may destroy or hide evidence 
that would be useful in substantiating an injured party’s claim for damages. To prevent 

EN 

25 

   EN 

 
the  destruction  of  relevant  evidence  and  to  ensure  that  court  orders  requesting 
disclosure  are  complied  with,  courts  should  be  able  to  impose  sufficiently  deterrent 
sanctions.  Insofar  as  parties  to  the  proceedings  are  concerned,  the  risk  of  adverse 
inferences being drawn in the proceedings for damages can be a particularly effective 
sanction and can avoid delays. Sanctions should also be available for non-compliance 
with obligations to protect confidential information and for abusive use of information 
obtained  through  disclosure.  Similarly,  sanctions  should  be  available  if  information 
obtained through access to the file of a competition authority in the exercise of one’s 
rights  of  defence  in  relation  to  investigations  of  that  competition  authority  is  used 
abusively in actions for damages.  

(25)  Article 16(1) of Regulation (EC) No 1/2003 provides that where national courts rule 
on agreements, decisions or practices under Article 101 or 102 of the Treaty which are 
already  the  subject  of  a  Commission  decision,  they  cannot  take  decisions  which  run 
counter  to  the  decision  adopted  by  the  Commission.  To  enhance  legal  certainty,  to 
avoid  inconsistency  in  the  application  of  those  Treaty  provisions,  to  increase  the 
effectiveness  and  procedural  efficiency  of  actions  for  damages  and  to  foster  the 
functioning of the internal market for undertakings and consumers, it should similarly 
not be possible to call into question a final decision by a national competition authority 
or a review court finding an infringement of Article 101 or 102 of the Treaty in actions 
for damages relating to the same infringement, regardless of whether or not the action 
is  brought  in  the  Member  State  of  the  authority  or  review  court.  The  same  should 
apply  to  a  decision  in  which  it  has  been  concluded  that  provisions  of  national 
competition law are infringed in cases where national and Union competition law are 
applied  in  the  same  case  and  in  parallel.  This  effect  of  decisions  by  national 
competition authorities and review courts finding an infringement of the competition 
rules should apply to the operative part of the decision and its supporting recitals. This 
is without prejudice to the rights and obligations of national courts under Article 267 
of the Treaty. 

(26)  National  rules  on  the  beginning,  duration,  suspension  or  interruption  of  limitation 
periods  should  not  unduly  hamper  the  bringing  of  actions  for  damages.  This  is 
particularly important in respect of actions that build upon the competition authority's 
or a review court’s finding of an infringement. To that end, injured parties should still 
be able to bring  an  action for damages after proceedings by a competition authority, 
with a view to enforcing national and Union competition law. 

(27)  Where several undertakings infringe the competition rules jointly (as in the case of a 
cartel) it is appropriate to make provision for these joint infringers to be held jointly 
and  severally  liable  for  the  entire  harm  caused  by  the  infringement.  Amongst 
themselves, the joint infringers should have the right to obtain contribution if one of 
the  infringing  undertakings  has  paid  more  than  its  share.  The  determination  of  that 
share as the relative responsibility of a given infringer and the relevant criteria, such as 
turnover, market share, or role in the cartel, is a matter for the applicable national law, 
while respecting the principles of effectiveness and equivalence. 

(28)  Undertakings  which  cooperate  with  competition  authorities  under  a  leniency 
programme  play  a  key  role  in  detecting  secret  cartel  infringements  and  in  bringing 
these  infringements  to  an  end,  thereby  often  mitigating  the  harm  which  could  have 
been  caused  had  the  infringement  continued.  It  is  therefore  appropriate  to  make 
provision  for  undertakings  which  have  received  immunity  from  fines  from  a 
competition  authority  under  a  leniency  programme  to  be  protected  from  undue 
exposure  to  damages  claims,  bearing  in  mind  that  the  decision  of  the  competition 

EN 

26 

   EN 

 
authority finding the infringement may become final for the immunity recipient before 
it  becomes  final  for  other  undertakings  which  have  not  received  immunity.  It  is 
therefore appropriate that the immunity recipient is relieved in principle from joint and 
several  liability  for  the  entire  harm  and  that  its  contribution  does  not  exceed  the 
amount of harm caused to his own direct or indirect purchasers or, in case of a buying 
cartel, his direct or indirect providers. To the extent a cartel has caused harm to others 
than  the  customers/providers  of  the  infringing  undertakings,  the  contribution  of  the 
immunity  recipient  should  not  exceed  his  relative  responsibility  for  the  harm  caused 
by the cartel. This share should be determined in accordance with the same rules used 
to determine the contributions among infringing undertakings (recital (27) above). The 
immunity  recipient  should  remain  fully  liable  to  the  injured  parties  other  than  his 
direct  or  indirect  purchasers  or  providers  only  where  they  are  unable  to  obtain  full 
compensation from the other infringing undertakings.  

(29)  Consumers and undertakings which have been harmed by an infringement of national 
or Union competition law are entitled to compensation for the actual loss and for loss 
of  profit.  The  actual  loss  can  result  from  the  price  difference  between  what  was 
actually paid and what would have been paid in the absence of the infringement. When 
an injured party has reduced his actual loss by passing it on, entirely or in part, to his 
own  purchasers,  the  loss  which  has  been  passed  on  no  longer  constitutes  harm  for 
which  the  party  that  passed  it  on  has  to  be  compensated.  It  is  therefore  in  principle 
appropriate to allow an infringing undertaking to invoke the passing-on of actual loss 
as  a  defence  against  a  claim  for  damages.  It  is  appropriate  to  provide  that  the 
infringing  undertaking,  insofar  as  it  invokes  the  passing-on  defence,  must  prove  the 
existence and extent of pass-on of the overcharge. 

(30)  However,  in  a  situation  where  the  overcharge  was  passed  on  to  persons  who  are 
legally  unable  to  claim  compensation,  it  is  not  appropriate  to  allow  the  infringing 
undertaking to invoke the passing-on defence, as this would render it free of liability 
for  the  harm  which  it  has  caused.  The  court  seized  of  the  action  should  therefore 
assess, when the passing-on defence is invoked in a specific case, whether the persons 
to  whom  the  overcharge  was  allegedly  passed  on  are  legally  able  to  claim 
compensation. While indirect purchasers are entitled to claim compensation, national 
rules  of  causality  (including  rules  on  foreseeability  and  remoteness),  applied  in 
accordance with principles of Union law, may entail that certain persons (for instance 
at  a  level  of  the  supply  chain  which  is  remote  from  the  infringement)  are  legally 
unable  to  claim  compensation  in  a  given  case.  Only  when  the  court  finds  that  the 
person  to  whom  the  overcharge  was  allegedly  passed  on  is  legally  able  to  claim 
compensation will it assess the merits of the passing-on defence. 

(31)  Consumers  or  undertakings  to  whom  actual  loss  has  been  passed  on  have  suffered 
harm that has been caused by an infringement of national or Union competition law. 
While  such  harm  should  be  compensated  by  the  infringing  undertaking,  it  may  be 
particularly difficult for consumers or undertakings that did not themselves make any 
purchase  from  the  infringing  undertaking  to  prove  the  scope  of  that  harm.  It  is 
therefore appropriate to provide that, where the existence of a claim for damages or the 
amount to  be  awarded depends on  whether or to what degree an overcharge paid by 
the  direct  purchaser  of  the  infringing  undertaking  has  been  passed  on  to  the  indirect 
purchaser, the latter is regarded as having brought the proof that an overcharge paid by 
that direct purchaser has been passed on to his level, where he is able to show prima 
facie that such passing-on has occurred. It is furthermore appropriate to define under 
what  conditions  the  indirect  purchaser  is  to  be  regarded  as  having  established  such 

EN 

27 

   EN 

 
prima  facie  proof.  As  regards  the  quantification  of  passing-on,  the  national  court 
should have the power to estimate which share of the overcharge has been passed on to 
the  level  of  indirect  purchasers  in  the  dispute  pending  before  it.  The  infringing 
undertaking should be allowed to bring proof showing that the actual loss has not been 
passed on or has not been passed on entirely. 

(32) 

Infringements  of  competition  law  often  concern  the  conditions  and  the  price  under 
which  goods  or  services  are  sold  and  lead  to  an  overcharge  and  other  harm  for  the 
customers of the infringing undertakings. The infringement may also concern supplies 
to the infringing undertaking (for example in the case of a buyer’s cartel). The rules of 
this Directive and in particular the rules on pass-on should apply accordingly. 

(33)  Actions for damages can be brought both by injured parties that have purchased goods 
or services from the infringing undertaking and by purchasers further down the supply 
chain.  In  the  interest  of  consistency  between  judgments  resulting  from  such  related 
proceedings  and  hence  to  avoid  the  harm  caused  by  the  infringement  of  national  or 
Union  competition  law  not  being  fully  compensated  or  the  infringing  undertaking 
being  required  to  pay  damages  to  compensate  for  harm  that  has  not  been  suffered, 
national  courts  should  take  due  account,  as  far  as  allowed  under  Union  and  national 
law, of any related action and of the resulting judgment, particularly where it finds that 
passing-on  has  been  proven.  This  should  be  without  prejudice  to  the  fundamental 
rights  of  defence  and  to  an  effective  remedy  and  a  fair  trial  of  those  who  were  not 
parties  to  these  judicial  proceedings.  Any  such  actions  pending  before  the  courts  of 
different Member States may be considered as related within the meaning of Article 30 
of Regulation No 1215/2012. Under this provision, national courts other than the one 
first seized may stay proceedings or, under certain circumstances, decline jurisdiction. 

(34)  An injured party who has proven having suffered harm as a result of a competition law 
infringement  still  needs  to  prove  the  extent  of  the  harm  in  order  to  obtain  damages. 
Quantifying  antitrust  harm  is  a  very  fact-intensive  process  and  may  require  the 
application  of  complex  economic  models.  This  is  often  very  costly  and  causes 
difficulties for injured parties in terms of obtaining the necessary data to substantiate 
their claims. As such, the quantification of antitrust harm can constitute a substantial 
barrier  preventing  injured  parties  from  obtaining  compensatory  damages  for  harm 
suffered. 

(35)  To  remedy  the  information  asymmetry  and  some  of  the  difficulties  associated  with 
quantifying antitrust harm, and to ensure the effectiveness of claims for damages, it is 
appropriate to presume that in the case of a cartel infringement, the infringement has 
caused  harm,  in  particular  via  a  price  effect.  Depending  on  the  facts  of  the  case  this 
means  that  the  cartel  has  caused  a  rise  in  price,  or  prevented  a  lowering  of  prices 
which  would  otherwise  have  occurred  but  for  the  infringement.  The  infringing 
undertaking  should  be  free  to  rebut  such  presumption.  It  is  appropriate  to  limit  this 
rebuttable presumption to cartels, given the secret nature of a cartel, which increases 
the  said  information  asymmetry  and  makes  it  more  difficult  for  the  injured  party  to 
obtain the necessary evidence to prove the harm. 

(36) 

In the absence of Union rules on the quantification of harm caused by a competition 
law infringement, it is for the domestic legal system of each Member State and for the 
national  courts  to  determine  what  requirements  the  injured  party  has  to  meet  when 
proving the amount of the harm suffered, how precisely he has to prove that amount, 
the methods that can be used in quantifying the amount and the consequences of not 
being able to fully meet the set requirements. However, these domestic requirements 

EN 

28 

   EN 

 
should not be less favourable than those governing similar domestic actions (principle 
of  equivalence),  nor  should  they  render  the  exercise  of  the  Union  right  to  damages 
practically  impossible  or  excessively  difficult  (principle  of  effectiveness).  Regard 
should be had in this respect to any information asymmetries between the parties and 
to  the  fact  that  quantifying  the  harm  means  assessing  how  the  market  in  question 
would  have  evolved  had  there  been  no  infringement.  This  assessment  implies  a 
comparison with a situation which is by definition hypothetical and can thus never be 
made  with  complete  accuracy.  It  is  therefore  appropriate  to  give  national  courts  the 
power to estimate the amount of the harm caused by the competition law infringement. 

(37) 

Injured  parties  and  infringing  undertakings  should  be  encouraged  to  agree  on 
compensating the harm caused by a competition law infringement through consensual 
dispute  resolution  mechanisms,  such  as  out-of-court  settlements,  arbitration  and 
mediation. Where possible, such consensual dispute resolution should cover as many 
injured  parties  and  infringing  undertakings  as  possible.  The  provisions  in  this 
Directive on consensual dispute resolution are therefore meant to facilitate the use of 
such mechanisms and increase their effectiveness. 

(38)  Limitation periods for bringing an action for damages could be such that they prevent 
injured parties and infringing undertakings from having sufficient time to come to an 
agreement  on  the  compensation  to  be  paid.  In  order  to  provide  both  with  a  genuine 
opportunity  to  engage  in  consensual  dispute  resolution  before  bringing  proceedings 
before  the  national  court,  the  limitation  period  thus  needs  to  be  suspended  for  the 
duration of the consensual dispute resolution process. 

(39)  Furthermore, when parties decide to engage in consensual dispute resolution after an 
action for damages has been brought before the national court for the same claim, that 
court may suspend the proceedings before it for the duration of the consensual dispute 
resolution process. When considering whether to suspend the proceedings, the national 
court should take into account the interest in an expeditious procedure. 

(40)  To  encourage  consensual  settlements,  an  infringing  undertaking  that  pays  damages 
through consensual dispute resolution should not be placed in a worse position vis-à-
vis its co-infringers than it would be in without the consensual settlement. This might 
happen if a settling infringer, even after a consensual settlement, continued to be fully 
jointly  and  severally  liable  for  the  harm  caused  by  the  infringement.  A  settling 
infringer  should  in  principle  therefore  not  contribute  to  his  non-settling  co-infringers 
when the latter have paid damages to the injured party with whom the first infringer 
had previously settled. The correlate to this non-contribution rule is that the claim of 
the injured party is reduced by the settling infringer’s share of the harm caused to him. 
This share should be determined in accordance with the same rules used to determine 
the  contributions  among  infringing  undertakings  (recital  (27)  above).  Without  such 
reduction,  the  non-settling  infringers  would  be  unduly  affected  by  the  settlement  to 
which they were not a party. The settling co-infringer will still have to pay damages 
where that is the only possibility for the injured party to obtain full compensation. 

(41)  When settling co-infringers are asked to contribute to damages subsequently paid by 
non-settling  co-infringers,  the  national  court  should  take  account  of  the  damages 
already paid under the consensual settlement, bearing in mind that not all co-infringers 
are  necessarily  equally  involved  in  the  full  substantive,  temporal  and  geographical 
scope of the infringement. 

(42)  This  Directive  respects  fundamental  rights  and  observes  the  principles  recognised  in 

the Charter of Fundamental Rights of the European Union. 

EN 

29 

   EN 

 
(43)  As it would be impossible, with a disparity of policy choices and legal rules at national 
level  concerning  the  Union  right  to  compensation  in  actions  for  damages  for 
infringement of the Union competition rules, to ensure the full effect of Articles 101 
and 102 of the Treaty, and to ensure the proper functioning of the internal market for 
undertakings  and  consumers,  these  objectives  cannot  be  sufficiently  achieved  by  the 
Member  States,  and  can  therefore,  by  reason  of  the  requisite  effectiveness  and 
consistency in the application of Articles 101 and 102 of the Treaty, be better achieved 
at  Union  level.  The  European  Parliament  and  the  Council  therefore  adopt  this 
Directive, in accordance with the principle of subsidiarity as set out in Article 5 of the 
Treaty on European Union. In accordance with the principle of proportionality, as set 
out  in  that  Article,  this  Directive  does  not  go  beyond  what  is  necessary  in  order  to 
achieve those objectives. 

(44) 

In  accordance  with  the  Joint  Political  Declaration  of  Member  States  and  the 
Commission on explanatory documents of 28 September 201155, Member States have 
undertaken  to  accompany,  in  justified  cases,  the  notification  of  their  transposition 
measures  with  one  or  more  documents  explaining  the  relationship  between  the 
components  of  a  directive  and  the  corresponding  parts  of  national  transposition 
instruments. With regard to this Directive, the legislator considers the transmission of 
such documents to be justified.  

HAVE ADOPTED THIS DIRECTIVE: 

CHAPTER I 

SCOPE AND DEFINITIONS 

Article 1 

Scope of the Directive 

1. 

2. 

1. 

55 

This Directive sets out certain rules necessary to ensure that anyone who has suffered 
harm  caused  by  an  infringement  of  Article  101  or  102  of  the  Treaty  or  of  national 
competition law, can effectively exercise the right to full compensation for that harm. 
It  also  sets  out  rules  fostering  undistorted  competition  in  the  internal  market  and 
removing  obstacles  to  its  proper  functioning  by  ensuring  equivalent  protection 
throughout the Union for anyone who has suffered such harm.  

This  Directive  also  sets  out  rules  for  the  coordination  between  enforcement  of  the 
competition  rules  by  competition  authorities  and  enforcement  of  those  rules  in 
damages actions before national courts. 

Article 2 

Right to full compensation 

Anyone  who  has  suffered  harm  caused  by  an  infringement  of  Union  or  national 
competition law shall be able to claim full compensation for that harm.  

OJ C 369, 17.12.2011, p. 14. 

EN 

30 

   EN 

 
                                                 
2. 

3. 

Full compensation shall place anyone who has suffered harm in the position in which 
that  person  would  have  been  had  the  infringement  not  been  committed.  It  shall 
therefore include compensation for actual loss and for loss of profit, and payment of 
interest  from  the  time  the  harm  occurred  until  the  compensation  in  respect  of  that 
harm has actually been paid. 

Member States shall ensure that injured parties can effectively exercise their claims 
for damages.  

Article 3 

Principles of effectiveness and equivalence 

Member  States  shall  ensure  that  all  national  rules  and  procedures  relating  to  actions  for 
damages  are  designed  and  applied  in  such  a  way  as  to  ensure  that  any  injured  party  can 
effectively exercise the Union right to full compensation for harm caused by an infringement 
of  competition  law.  Any  national  rules  and  procedures  relating  to  actions  for  damages 
resulting from infringements of Article 101 or 102 of the Treaty shall not be less favourable to 
the injured parties than those governing similar domestic actions. 

Article 4 

Definitions 

For the purposes of this Directive, the following definitions shall apply: 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

‘infringement  of  competition  law’  means  an  infringement  of  Article  101  or  102  of 
the Treaty or of national competition law within the meaning of paragraph 2; 

‘national  competition  law’  means  provisions  of  national  law  that  predominantly 
pursue the same objective as Articles 101 and 102 of the Treaty and that are applied 
to the same case and in parallel to Union competition law pursuant to Article 3(1) of 
Regulation (EC) No 1/2003;  

‘action for damages’ means an action under national law by which an injured party 
brings  a  claim  for  damages  before  a  national  court;  it  may  also  cover  actions  by 
which  someone  acting  on  behalf  of  one  or  more  injured  parties  brings  a  claim  for 
damages before a national court, where national law provides for this possibility; 

‘claim  for  damages’  means  a  claim  for  compensation  of  harm  caused  by  an 
infringement of competition law; 

‘injured party’ means anyone who has a claim for damages; 

‘national  competition  authority’  means  an  authority  designated  by  a  Member  State 
pursuant  to  Article  35  of  Regulation  (EC)  No  1/2003  as  being  responsible  for  the 
application of Articles 101 and 102 of the Treaty; 

‘competition authority’ means the Commission or a national competition authority; 

‘national court’ or ‘court’ means any court or tribunal of a Member State within the 
meaning of Article 267 of the Treaty; 

‘review  court’  means  a  national  court  that  is  empowered  to  review  decisions  of  a 
national competition authority, in which context it may also have the power to find 
an infringement of Article 101 or 102 of the Treaty; 

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10. 

11. 

12. 

13. 

14. 

15. 

16. 

17. 

‘infringement decision’ means a decision of a competition authority or review court 
that finds an infringement of competition law; 

‘final’  infringement  decision  means  an  infringement  decision  of  a  competition 
authority or review court that can no longer be reviewed; 

‘cartel’  means  an  agreement  and/or  concerted  practice  between  two  or  more 
competitors aimed at coordinating their competitive behaviour on the market and/or 
influencing  the  relevant  parameters  of  competition,  through  practices  such  as  the 
fixing  or  coordination  of  purchase  or  selling  prices  or  other  trading  conditions,  the 
allocation  of  production  or  sales  quotas,  the  sharing  of  markets  and  customers, 
including  bid-rigging,  restrictions  of  imports  or  exports  and/or  anti-competitive 
actions against other competitors; 

‘leniency  programme’  means  a  programme  on the basis of which a participant in a 
secret  cartel,  independently  of  the  other  undertakings  involved  in  the  cartel, 
cooperates  with  an  investigation  of  the  competition  authority,  by  voluntarily 
providing presentations of his knowledge of the cartel and his role therein, in return 
for  which  the  participant  receives  immunity  from  any  fine  to  be  imposed  for  the 
cartel or a reduction of such fine; 

‘leniency  corporate  statement’  means  an  oral  or  written  presentation  voluntarily 
provided  by,  or  on  behalf  of,  an  undertaking  to  a  competition  authority,  describing 
the undertaking’s knowledge of a secret cartel and its role therein, which was drawn 
up specifically for submission to the authority with a view to obtaining immunity or 
a  reduction  of  fines  under  a  leniency  programme  concerning  the  application  of 
Article 101 of the Treaty or the corresponding provision under national law; this does 
not include documents or information that exist irrespective of the proceedings of a 
competition authority (‘pre-existing information’); 

‘settlement  submission’  means  a  presentation  voluntarily  provided  by,  or  on  behalf 
of,  an  undertaking  to  a  competition  authority  describing  the  undertaking’s 
acknowledgement of its participation in an infringement of Article 101 of the Treaty 
or a corresponding provision under national law and its liability for this infringement, 
which  was  drawn  up  specifically  as  a  formal  request  for  the  authority  to  apply  an 
expedited procedure; 

‘overcharge’ means any positive difference between the price actually paid and  the 
price  that  would  have  prevailed  in  the  absence  of  an  infringement  of  competition 
law; 

‘consensual settlement’ means an agreement whereby damages are paid following a 
consensual dispute resolution. 

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CHAPTER II 

DISCLOSURE OF EVIDENCE 

Article 5 

Disclosure of evidence 

1. 

Member States shall ensure that, where a claimant has presented reasonably available 
facts  and  evidence  showing  plausible  grounds  for  suspecting  that  he,  or  those  he 
represents, has suffered harm caused by the defendant’s infringement of competition 
law,  national  courts  can  order  the  defendant  or  a  third  party  to  disclose  evidence, 
regardless of whether or not this evidence is also included in the file of a competition 
authority,  subject  to  the  conditions  set  out  in  this  Chapter.  Member  States  shall 
ensure  that  courts  are  also  able  to  order  the  claimant  or  a  third  party  to  disclose 
evidence on request of the defendant. 

This  provision  is  without  prejudice  to  the  rights  and  obligations  of  national  courts 
under Council Regulation (EC) No 1206/2001. 

2. 

Member  States  shall  ensure  that  national  courts  order  the  disclosure  of  evidence 
referred to in paragraph 1 where the party requesting disclosure has 

(a) 

(b) 

shown that evidence in the control of the other party or a third party is relevant 
in terms of substantiating his claim or defence; and 

specified either pieces of this evidence or categories of this evidence defined as 
precisely and narrowly as he can on the basis of reasonably available facts. 

3. 

Member States shall  ensure that  national courts limit  disclosure of evidence  to that 
which is proportionate. In determining whether any disclosure requested by a party is 
proportionate, national courts shall consider the legitimate interests of all parties and 
third parties concerned. They shall, in particular, consider: 

(a) 

(b) 

the likelihood that the alleged infringement of competition law occurred; 

the scope and cost of disclosure, especially for any third parties concerned; 

(c)  whether  the  evidence  to  be  disclosed  contains  confidential  information, 
especially  concerning  any  third  parties,  and  the  arrangements  for  protecting 
such confidential information; and  

(d) 

in  cases  where  the  infringement  is  being  or  has  been  investigated  by  a 
competition  authority,  whether  the  request  has  been  formulated  specifically 
with regard to the nature, object or content of such documents rather than by a 
non-specific  request  concerning  documents  submitted  to  a  competition 
authority or held in the file of such competition authority.  

4. 

5. 

Member  States  shall  ensure  that  national  courts  have  at  their  disposal  effective 
measures to protect confidential information from improper use to the greatest extent 
possible  whilst  also  ensuring  that  relevant  evidence  containing  such  information  is 
available in the action for damages. 

Member States shall take the necessary measures to give full effect to legal privileges 
and other rights not to be compelled to disclose evidence. 

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6. 

7. 

8. 

1. 

2. 

3. 

Member States shall ensure that, to the extent that their courts have powers to order 
disclosure without hearing the person from whom disclosure is sought, no penalty for 
non-compliance with such an order may be imposed until the addressee of  such an 
order has been heard by the court. 

Evidence  shall  include  all  types  of  evidence  admissible  before  the  national  court 
seised,  in  particular  documents  and  all  other  objects  containing  information, 
irrespective of the medium on which the information is stored. 

Without prejudice to the obligation laid down in paragraph 4 and the limits laid down 
in  Article  6,  this  Article  shall  not  prevent  the  Member  States  from  maintaining  or 
introducing rules which would lead to wider disclosure of evidence. 

Article 6 

Limits on the disclosure of evidence from the file of a competition authority 

Member  States  shall  ensure  that,  for  the  purpose  of  actions  for  damages,  national 
courts  cannot  at  any  time  order  a  party  or  a  third  party  to  disclose  any  of  the 
following categories of evidence: 

(a) 

(b) 

leniency corporate statements; and 

settlement submissions. 

Member  States  shall  ensure  that,  for  the  purpose  of  actions  for  damages,  national 
courts  can  order  the  disclosure  of  the  following  categories  of  evidence  only  after  a 
competition  authority  has  closed  its  proceedings  or  taken  a  decision  referred  to  in 
Article 5 of Regulation No 1/2003 or in Chapter III of Regulation No 1/2003: 

(a) 

(b) 

information that was prepared by a natural or legal person specifically for the 
proceedings of a competition authority;  

information that was drawn up by a competition authority in the course of its 
proceedings. 

Disclosure  of  evidence  in  the  file  of  a  competition  authority  that  does  not  fall  into 
any  of  the  categories  listed  in  paragraphs  1  or  2  of  this  Article  may  be  ordered  in 
actions for damages at any time.  

Article 7 

Limits on the use of evidence obtained solely through access to the file of a competition 
authority 

1. 

2. 

Member States shall ensure that evidence falling into one of the categories listed in 
Article 6(1) which is obtained by a natural or legal person solely through access to 
the file of a competition authority in exercise of his rights of defence under Article 
27  of  Regulation  No  1/2003  or  corresponding  provisions  of  national  law  is  not 
admissible in actions for damages. 

Member States shall ensure that evidence falling within one of the categories listed in 
Article 6, paragraph 2 which is obtained by a natural or legal person solely through 
access to the file of a competition authority in exercise of his rights of defence under 
Article  27  of  Regulation  No  1/2003  or  corresponding  provisions  of  national  law  is 
not admissible in actions for damages until that competition authority has closed its 

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3. 

proceedings or taken a decision referred to in Article 5 of Regulation No 1/2003 or in 
Chapter III of Regulation No 1/2003. 

Member  States  shall  ensure  that  evidence  which  is  obtained  by  a  natural  or  legal 
person solely through access to the file of a competition authority in exercise of his 
rights  of  defence  under  Article  27  of  Regulation  No  1/2003  or  corresponding 
provisions of national law, and which is not inadmissible pursuant to paragraphs 1 or 
2 of this Article, can only be used in an action for damages by that person or by the 
natural or legal person that succeeded in his rights, including the person that acquired 
his claim. 

Article 8 

Sanctions 

1. 

Member States shall ensure that national courts can impose sanctions on parties, third 
parties and their legal representatives in the event of: 

(a) 

(b) 

(c) 

(d) 

failure or refusal to comply with any court’s disclosure order; 

the destruction of relevant evidence, provided that, at the time of destruction: 

(i) 

(ii) 

the  destroying  party  was  or  had  been  a  party  to  the  proceedings  of  a 
competition authority in relation to the conduct underlying the action for 
damages; or 

the  destroying  party  knew  or  should  reasonably  have  known  that  an 
action  for  damages  had  been  brought  before  the  national  court  and  that 
the  evidence  was  of  relevance  in  substantiating  either  the  claim  for 
damages or a defence against it; or 

(iii) 

the destroying party knew that the evidence was of relevance to pending 
or prospective actions for damages brought by it or against it; 

failure  or  refusal  to  comply  with  the  obligations  imposed  by  a  court  order 
protecting confidential information; or 

abuse  of  the  rights  relating  to  disclosure  of  evidence  provided  for  in  this 
Chapter, and of the evidence and information obtained thereunder. 

2. 

Member States shall ensure that the sanctions that can be imposed by national courts 
are effective, proportionate and dissuasive. The sanctions available to national courts 
shall  include,  insofar  as  the  behaviour  of  a  party  to  damages  action  proceedings  is 
concerned, the possibility to draw adverse inferences, such as presuming the relevant 
issue  to  be  proven  or  dismissing  claims  and  defences  in  whole  or  in  part,  and  the 
possibility to order the payment of costs. 

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CHAPTER III 

EFFECT OF NATIONAL DECISIONS, LIMITATION PERIODS, JOINT 
AND SEVERAL LIABILITY 

Article 9 

Effect of national decisions 

Member  States  shall  ensure  that,  where  national  courts  rule,  in  actions  for  damages  under 
Article 101 or 102 of the Treaty or under national competition law, on agreements, decisions 
or  practices  which  are  already  the  subject  of  a  final  infringement  decision  by  a  national 
competition authority or by a review court, those courts cannot take decisions running counter 
to  such  finding  of  an  infringement.  This  obligation  is  without  prejudice  to  the  rights  and 
obligations under Article 267 of the Treaty. 

Article 10 

Limitation periods 

1. 

2. 

3. 

4. 

5. 

Member States shall lay down the rules applicable to limitation periods for bringing 
actions  for  damages  in  accordance  with  this  Article.  Those  rules  shall  determine 
when  the  limitation  period  begins  to  run,  the  duration  of  the  period  and  the 
circumstances under which the period can be interrupted or suspended.  

Member States shall ensure that the limitation period shall not begin to run before an 
injured party knows, or can reasonably be expected to have knowledge of: 

(i) 

the behaviour constituting the infringement; 

(ii) 

the  qualification  of  such  behaviour  as  an  infringement  of  Union  or  national 
competition law; 

(iii) 

the fact that the infringement caused harm to him; and 

(iv) 

the identity of the infringer who caused such harm. 

Member States shall ensure that the limitation period does not begin to run before the 
day on which a continuous or repeated infringement ceases. 

Member  States  shall  ensure  that  the  limitation  period  for  bringing  an  action  for 
damages is at least five years.  

Member States shall ensure that the limitation period is suspended if a competition 
authority takes action for the purpose of the investigation or proceedings in respect of 
an infringement to which the action for damages relates. The suspension shall end at 
the  earliest  one  year  after  the  infringement  decision  has  become  final  or  the 
proceedings are otherwise terminated. 

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1. 

2. 

3. 

4. 

1. 

2. 

Article 11 

Joint and several liability 

Member States shall ensure that undertakings which have infringed competition law 
through joint behaviour are jointly and severally liable for the damage caused by the 
infringement:  each  of  the  infringing  undertakings  is  bound  to  compensate  for  the 
harm in full, and the injured party may require full compensation from any of them 
until he has been fully compensated.  

Member  States  shall  ensure  that  an  undertaking  which  has  been  granted  immunity 
from fines by a competition authority under a leniency programme shall be liable to 
injured  parties  other  than  its  direct  or  indirect  purchasers  or  providers  only  when 
such injured parties show that they are unable to obtain full compensation from the 
other undertakings that were involved in the same infringement of competition law.  

Member  States  shall  ensure  that  an  infringing  undertaking  may  recover  a 
contribution  from  any  other  infringing  undertaking,  the  amount  of  which  shall  be 
determined  in  the  light  of  their  relative  responsibility  for  the  harm  caused  by  the 
infringement. The amount of contribution of an undertaking which has been granted 
immunity  from  fines  by  a  competition  authority  under  a  leniency  programme  shall 
not exceed the amount of the harm it caused to its own direct or indirect purchasers 
or providers. 

Member  States  shall  ensure  that,  to  the  extent  the  infringement  caused  harm  to 
injured  parties  other  than  the  direct  or  indirect  purchasers  or  providers  of  the 
infringing  undertakings,  the  amount  of  contribution  of  the  immunity  recipient  shall 
be determined in the light of its relative responsibility for that harm. 

CHAPTER IV 

PASSING-ON OF OVERCHARGES 

Article 12 

Passing-on defence 

Member States shall ensure that the defendant in an action for damages can invoke as 
a defence against a claim for damages the fact that the claimant passed on the whole 
or part of the overcharge resulting from the infringement. The burden of proving that 
the overcharge was passed on shall rest with the defendant. 

Insofar  as  the  overcharge  has  been  passed  on  to  persons  at  the  next  level  of  the 
supply chain for whom it is legally impossible to claim compensation for their harm, 
the  defendant  shall  not  be  able  to  invoke  the  defence  referred  to  in  the  preceding 
paragraph. 

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1. 

2. 

1. 

2. 

1. 

Article 13 

Indirect purchasers 

Member States shall ensure that, where in an action for damages the existence of a 
claim for damages or the amount of compensation to be awarded depends on whether 
— or to what degree — an overcharge was passed on to the claimant, the burden of 
proving the existence and scope of such pass-on shall rest with the claimant. 

In the situation referred to in paragraph 1 of this Article, the indirect purchaser shall 
be  deemed  to  have  proven  that  a  passing-on  to  him  occurred  where  he  has  shown 
that: 

(a) 

(b) 

the defendant has committed an infringement of competition law; 

the  infringement  resulted  in  an  overcharge  for  the  direct  purchaser  of  the 
defendant; and 

(c)  he purchased the goods or services that were the subject of the infringement, or 
purchased goods or services derived from or containing the goods or services 
that were the subject of the infringement. 

Member States shall ensure that the court has the power to estimate which share of 
that overcharge was passed on.  

This  paragraph  shall  be  without  prejudice  to  the  infringer's  right  to  show  that  the 
overcharge was not, or not entirely, passed on to the indirect purchaser. 

Article 14 

Loss of profits and infringement at supply level 

The  rules  laid  down  in  this  Chapter  shall  be  without  prejudice  to  the  right  of  an 
injured party to claim compensation for loss of profits. 

Member States shall ensure that the rules laid down in this Chapter apply accordingly 
where  the  infringement  of  competition  law  relates  to  supply  to  the  infringing 
undertaking. 

Article 15 

Actions for damages by claimants from different levels in the supply chain 

Member States shall ensure that, in assessing whether the burden of proof resulting 
from the application of Article 13 is satisfied, national courts seized of an action for 
damages take due account of 

(a) 

actions  for  damages  that  are  related  to  the  same  infringement  of  competition 
law, but are brought by claimants from other levels in the supply chain; or 

(b) 

judgments resulting from such actions. 

2. 

This Article shall be without prejudice to the rights and obligations of national courts 
under Article 30 of Regulation (EU) No 1215/2012. 

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CHAPTER V 

QUANTIFICATION OF HARM 

Article 16 

Quantification of harm 

1. 

2. 

1. 

2. 

1. 

Member  States  shall  ensure  that,  in  the  case  of  a  cartel  infringement,  it  shall  be 
presumed that the infringement caused harm. The infringing undertaking shall have 
the right to rebut this presumption. 

Member  States  shall  ensure  that  the  burden  and  the  level  of  proof  and  of  fact-
pleading required for the quantification of harm does not render the exercise of the 
injured  party’s  right  to  damages  practically  impossible  or  excessively  difficult. 
Member  States  shall  provide  that  the  court  be  granted  the  power  to  estimate  the 
amount of harm. 

CHAPTER VI 

CONSENSUAL DISPUTE RESOLUTION 

Article 17 

Suspensive effect of consensual dispute resolution 

Member  States  shall  ensure  that  the  limitation  period  for  bringing  an  action  for 
damages is suspended for the duration of the consensual dispute resolution process. 
The suspension of the limitation period shall apply only with regard to those parties 
that are or were involved in the consensual dispute resolution. 

Member States shall ensure that national courts seized of an action for damages may 
suspend  proceedings  where  the  parties  to  those  proceedings  are  involved  in 
consensual  dispute  resolution  concerning  the  claim  covered  by  that  action  for 
damages. 

Article 18 

Effect of consensual settlements on subsequent actions for damages 

Member States shall ensure that, following a consensual settlement, the claim of the 
settling injured party is reduced by the settling co-infringer’s share of the harm that 
the  infringement  inflicted  upon  the  injured  party.  Non-settling  co-infringers  cannot 
recover  contribution  from  the  settling  co-infringer  for  the  remaining  claim.  Only 
when the non-settling co-infringers are not able to pay the damages that correspond 
to  the  remaining  claim  can  the  settling  co-infringer  be  held  to  pay  damages  to  the 
settling injured party. 

2. 

When  determining  the  contribution  of  each  co-infringer,  national  courts  shall  take 
due account of any prior consensual settlement involving the relevant co-infringer. 

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CHAPTERVII 

FINAL PROVISIONS 

Article 19 

Review 

The  Commission  shall  review  this  Directive  and  report  to  the  European  Parliament  and  the 
Council by [...] at the latest [to be calculated as 5 years after the date set as the deadline for 
transposition of this Directive.] 

Article 20 

Transposition 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  [to  be  calculated  as  2  years 
after  the  date  of  adoption  of  this  Directive]  at  the  latest.  They  shall  forthwith 
communicate to the Commission the text of those provisions. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive. 

Article 21 

Entry into force 

This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 22 

Addressees 

This Directive is addressed to the Member States. 

Done at Strasbourg, 

For the European Parliament 

For the Council 

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LEGISLATIVE FINANCIAL STATEMENT 

This proposal has no impact on the EU budget. 

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