COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Damages actions for breach of the EU antitrust rules Accompanying the 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  
SWD(2013) 204 final 

COMMISSION STAFF WORKING DOCUMENT 

EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT 

Damages actions for breach of the EU antitrust rules 

Accompanying the 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 

{COM(2013) 404 final} 
{SWD(2013) 203 final}

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COMMISSION STAFF WORKING DOCUMENT 

EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT 

Damages actions for breach of the EU antitrust rules 

Accompanying the 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 

1. 

1. 

2. 

INTRODUCTION 

The  EU  right  to  antitrust  damages.  Articles  101  and  102  of  the  Treaty  on  the 
Functioning of the European Union (TFEU) prohibit anticompetitive agreements and 
abuses  of  a  dominant  position.  The  European  Commission,  together  with  National 
Competition  Authorities  (‘NCAs’),  is  responsible  for  enforcing  those  prohibitions 
(public  enforcement).  At  the  same  time,  the  Treaty  provisions  create  rights  and 
obligations  upon  individuals,  which  must  be  enforced  by  national  courts  (private 
enforcement). Among these is the right to claim compensation for any harm suffered 
as a result of an infringement of the EU competition rules. The Court of Justice has, 
since 2001, repeatedly stated that, as a matter of EU law, any individual must be 
able to claim compensation for such harm (Courage, C-453/99 and Manfredi, C-
295  –  298/04).  More  than  ten  years  later,  most  victims  of  a  competition  law 
infringement are still not able, whether individually or collectively, to effectively 
exercise that EU right to compensation. This is largely due to a lack of appropriate 
national  rules  governing  actions  for  damages.  Moreover,  where  those  rules  exist, 
they are so different among Member States that they result in an uneven playing field 
for both infringers and victims of the illegal conduct. 

Public vs private enforcement. Recent case law at national and at EU level has also 
highlighted  that  the  EU  right  to  compensation  can  sometimes  be  at  odds  with  the 
effectiveness of public enforcement of EU competition rules by the Commission and 
NCAs. This is the case when the victim of a competition law infringement is seeking 
access  to  information  that  a  competition  authority  obtained  under  a  ‘leniency 
programme’  (see  below  at  paragraph  11).  Following  a  judgment  of  the  Court  of 
Justice  in  June  2011  (Pfleiderer,  C-360/09),  in  the  absence  of  EU  rules  on  this 
matter, potential leniency applicants do not know whether the information they give 
to a competition authority will eventually be divulged to a victim of the competition 
law  infringement.  This  may  put  them  in  a  weaker  position  in  terms  of  potential 
damages  claims  compared  to  other  undertakings  that  did  not  cooperate  with  the 
authority. Legal uncertainty may thus be detrimental for the effectiveness of leniency 
programmes  at  EU  or  national  level  and  hence  for  the  effectiveness  of  public 
enforcement measures to tackle secret cartels. 

3. 

Objectives of the initiative. The current Antitrust Damages Initiative has two primary 
objectives: 

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(i) 

to ensure the effective exercise of the EU right to compensation; and 

(ii) 

to regulate some key aspects of the interaction between public and private 
enforcement  of  EU  competition  law,  with  a  view  to  striking  a  balance 
between  enforcement  by  the  Commission  and  NCAs  and  damages  actions 
before national courts and thus achieving effective overall enforcement of the 
EU competition rules. 

2. 

PROBLEMS TO BE ADDRESSED 

2.1. 

Ensuring the effective exercise of the EU right to compensation 

4. 

5. 

6. 

Removing obstacles to effective compensation. Most victims of infringements of EU 
competition  law  still  remain  uncompensated.  Apart  from  a  perceived  lack  of 
awareness, even those victims who want to obtain redress face a very unfavourable 
risk/reward  balance,  due  to  procedural  obstacles  and  the  costs  of  bringing  an 
action. This weakens the functioning of the EU competition rules and is difficult to 
reconcile  with  the  fundamental  right  to  effective  judicial  protection  pursuant  to  the 
EU Charter of Fundamental Rights. In its 2005 Green Paper on damages actions for 
breach of the EC antitrust rules, the Commission identified the main obstacles to 
effective compensation. In 2008, it adopted a White Paper on antitrust damages 
actions, setting out a number of suggestions as to how to remove these obstacles 
and ensure effective private enforcement in the Member States. 

Public  consultations.  In  the  public  consultation  on  the  White  Paper,  and  in  two 
subsequent  public  consultations,  civil  society  and  institutional  stakeholders  such  as 
the  European  Parliament  and  the  European  Economic  and  Social  Committee 
welcomed  the  proposed  measures.  Moreover,  the  European  Parliament  has 
explicitly called for EU legislation on antitrust damages actions. 

Stakeholders’  submissions.  In 
the  above  public  consultations,  stakeholders 
concurred  with  the  Commission’s  analysis  of  a  number  of  main  obstacles  which 
stand in the way of more effective compensation:   

• 

Potential  claimants pointed at the difficulties  they face  in  obtaining access to 
the  evidence  they  need  to  prove  a  case.  By  nature,  antitrust  damages  actions 
often require an unusually high level of costly factual and economic analysis. 
They  present  difficulties  for  claimants  in  terms  of  access  to  crucial  pieces  of 
evidence  that  are  often  kept  secret  in  the  hands  of  defendants.  Stakeholders 
also pointed to the lack of clear rules on the passing-on defence, i.e. whether a 
defendant should be allowed to demonstrate that a direct purchaser passed on 
the higher price resulting from a cartel to its own customers further down the 
distribution chain. Among other issues that may have a negative effect on the 
chances  of  success  of  an  action,  limitation  periods  are  also  significant,  e.g. 
when there is insufficient time to bring an action after an infringement has been 
found. The costs of an action can significantly increase when the parties have 
to prove the infringement even if it has already been found by an NCA, in the 
absence  of  uniform  rules  on  the  probative  value  of  such  infringement 
decisions.  Moreover,  the  quantification  of  the  harm  suffered  is  often  a 
complex  and  costly  exercise  that  may  affect  the  likelihood  of  a  case  being 
pursued. 

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• 

• 

Consumers and SMEs are negatively affected by a lack of effective collective 
redress  mechanisms,  which  would  allow  many  consumers  or  businesses  to 
bring their claims jointly and to share the costs and burdens of legal action. 

Business  associations,  while  welcoming  the  objectives  pursued  by  the 
Commission,  generally  warned  against  the  risks  of  litigation  excesses  as 
experienced  in  other  jurisdictions,  and  stressed  the  need  to  provide 
safeguards  against  abusive  unmeritorious  litigation,  in  particular  if  claims 
are pursued collectively. 

An uneven playing field in the internal market. Besides the specific obstacles which 
hamper the effective exercise of the EU right to compensation, there are still highly 
diverse  national  rules  governing  antitrust  damages  actions.  This  diversity  has 
increased  over  recent  years:  it  causes  legal  uncertainty  for  all  parties  involved  and 
may hamper effective private enforcement of competition rules, especially in cross-
border  cases.  This  also  results  in  appreciable  distortions  of  competition  in  the 
internal market, as the opportunity for victims to obtain redress and the chances for 
infringers to face liability differ depending on where they are established and where 
they  can  bring  their  claims.  This  is  illustrated  by  the  current  concentration  of 
antitrust damages actions in three EU jurisdictions: the UK, Germany and the 
Netherlands.  This  indicates  that  claimants  consider  the  rules  applicable  in  those 
countries  to  be  more  suited  to  their  purposes  than  in  others.  Conversely,  it  appears 
more difficult for victims of competition law infringements in the other Member 
States  to  effectively  exercise  their  EU  right  to  compensation.  This  uneven 
enforcement may even result in a competitive advantage for some undertakings that 
have breached Articles 101 or 102 TFEU, and serve as a disincentive to exercise the 
right  of  establishment  and  the  freedom  to  provide  goods  or  services  in  Member 
States where the right to compensation is more effectively enforced. 

Likely  costs  of  the  current  situation.  The  cost  of  ineffective  private  enforcement  of 
competition law is estimated at up to €
 23 billion or 0.18 % of the EU’s 2012 GDP — 
in  terms  of  compensation  that  is  foregone  by  victims  each  year  across  the  EU. 
Remedying  this  problem  would  shift  the  cost  of  antitrust  infringements  from  the 
victims  to  the  infringers,  and  make  it  easier  to  detect  distortions  of  competition.  In 
terms of overall enforcement of Articles 101 and 102 TFEU, the increased likelihood 
of being held liable for illegal conduct would discourage anti-competitive behaviour 
(increased deterrence), with subsequent benefits for consumer welfare. 

7. 

8. 

2.2. 

The interaction between public and private enforcement of EU competition law 

9. 

Definitions.  Public  enforcement  of  EU  competition  law  is  a  matter  for  the 
Commission  and  NCAs,  which  are  empowered  to  find,  sanction  and  prevent 
infringements  of  EU  competition  rules.  Public  enforcement  is  also  a  matter  for  the 
courts  reviewing  decisions  taken  by  competition  authorities.  Private  enforcement 
concerns  enforcement  of  the  same  rules  by  way  of  actions  brought  before  national 
courts.  In  the  absence  of  EU  law  on  the  matter,  private  enforcement  is  almost 
exclusively  governed  by  national  civil  law.  Private  enforcement  can  broadly  be 
subdivided into three types of cases: 

(i) 

(ii) 

compensation  of  harm  suffered  as  a  result  of  an  infringement  of  EU 
competition law (actions for damages), 

requests to cease behaviour infringing EU competition law (injunctive relief); 
and 

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10. 

11. 

12. 

3. 

13. 

(iii)  declaration of nullity of contractual provisions in breach of the EU competition 

rules. 

Complementarity  and  interaction  of  public  and  private  enforcement.  Public  and 
private enforcement are complementary tools for the effective application of Articles 
101 and 102 TFEU. A private action can be brought before a court without a prior 
decision  by  a  competition  authority  (‘stand-alone  actions’).  However,  antitrust 
damages  actions  are  most  often  brought  once  a  competition  authority  has  found  an 
infringement of EU competition rules (follow-on actions). The resulting interaction 
between public and private enforcement concerns the following key aspects: 

(i) 

access to information held by the competition authorities, 

(ii) 

the binding effect of infringement decisions, and 

(iii) 

limitation periods on bringing a damages action. 

A  key  issue:  disclosure  of  leniency  documents.  To  detect  and  punish  secret  cartels, 
competition authorities offer infringers immunity from or a reduced fine in exchange 
for  their  cooperation.  These  ‘leniency  programmes’  are  a  very  effective  tool  in  the 
hands  of  public  enforcers.  Victims  of  the  same  infringement  may  need  the 
information that has been voluntarily provided by infringers to use it as evidence and 
obtain  compensation.  In  the  recent  Pfleiderer  case,  parties  who  wanted  to  bring  an 
action for damages against the cartel had requested access to the leniency file of the 
German  Competition  Authority.  The  German  national  court  asked  the  Court  of 
Justice  whether  disclosure  of  leniency-related  information  was  contrary  to  EU  law. 
In its 2011 judgment, the Court of Justice ruled that in the absence of EU law on the 
matter, it is for the national court to determine on a case-by-case basis and according 
to national law the conditions under which disclosure of leniency-related information 
to  victims  of  a  competition  law  infringement  must  be  permitted  or  refused.  This 
judgment  was  followed  by  considerable  uncertainty  as  to  which  categories  of 
documents  would  be  disclosable.  Such  uncertainty  is  not  only  detrimental  to  the 
parties  involved  in  damages  actions,  but  might  more  specifically  deter  cartel 
participants from cooperating with the Commission and NCAs under their leniency 
programmes  and  adversely  affect  the  fight  against  cartels,  which  largely  relies  on 
leniency applications. Reduced cartel enforcement would detract from the deterrence 
of public enforcement of competition law. 

Similar  problems  exist  in  relation  to  settlement  cases,  where  the  parties 
acknowledge  their  participation  in  a  cartel  in  exchange  for  a  simplified  procedure 
and a reduced fine. The uncertainty regarding disclosure of documents from the file 
of a competition authority relating to such proceedings might deter companies from 
cooperating  with  the  competition  authorities  under  the  settlements  procedure. 
Finally,  disclosure  of  documents  from  the  file  of  a  competition  authority  during  an 
ongoing investigation might jeopardise  such  investigations  and thus the capacity of 
the competition authorities to sanction infringements of EU competition law. 

THE AVAILABLE OPTIONS  

Identifying  the  options.  To  remedy  the  problems  described  above,  to  foster  an 
effective  right  of  compensation  for  victims  of  breaches  of  Articles  101  and  102 
TFEU  and  to  achieve  an  optimal  balance  between  public  and  private  enforcement, 
four  policy  options  were  considered.  They  were  chosen  on  the  basis  of  the 
assessment carried out for the White Paper, which is summarised in an Annex to the 

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14. 

15. 

16. 

Impact  Assessment  Report.  The  measures  that  were  already  ruled  out  in  the 
White  Paper  due  to  a  disproportionate  cost/benefit  ratio  have  not  been 
reconsidered.  Two  examples  of  such  excluded  options  are  multiple  (punitive) 
damages  and  a  wide-ranging  system  for  pre-trial  discovery  of  evidence.  Moreover, 
all  options  for  EU  action  (Options  2,  3  and  4)  include  a  non-binding  legal 
framework for quantifying antitrust damages. This non-binding guidance on one 
of  the  most  complex  and  costly  issues  for  all  parties  to  antitrust  damages  litigation 
was  supported  almost  unanimously  by  stakeholders, both in the public consultation 
on  the  White  Paper,  and  in  a  consultation  following  the  publication  of  a  draft 
Guidance paper in 2011. 

Option 1 — Zero EU action (base-line). The first option in the report is the baseline 
scenario,  entailing  no  action  at  all  at  EU  level.  This  involved  examining  the  status 
quo and likely developments in the absence of EU action (prospective analysis). 

Option  2  —  Binding  act  based  on  the  White  Paper  (including  specific  collective 
redress  system). The  second policy option envisages a  legally binding instrument 
incorporating  the  measures  that  the  Commission  put  forward  in  its  White  Paper, 
including  a  competition-specific  system  of  collective  redress  that  would  allow 
consumers  and  SMEs  to  bring  their  actions  jointly.  Such  an  instrument  would 
include:  rules  on  the  proportionate  disclosure  of  specified  categories  of  evidence; 
limited liability for successful immunity applicants; the binding effect of the final 
infringement decisions of NCAs; a passing-on defence for the infringer to show that 
the  damages  claimant  has  passed  on  the  illegal  overcharge  to  its  own  customers; 
facilitation of proof for an indirect purchaser as to the scope of the passing-on; and a 
specific limitation period for antitrust damages actions. 

Option 3 — Regulating the interplay between public and private enforcement. The 
third  option  consists  of  a  binding  instrument  that  partly  revises  the  options  put 
forward in the White Paper to reflect recent developments at national and EU levels 
in  two  ways:  by  referring  to  a  separate  horizontal  EU  approach  to  collective 
redress  instead  of  regulating  a  sector-specific  mechanism;  and  by  introducing 
limitations  to  access  to  evidence  aimed  at  preserving  the  effectiveness  of  public 
enforcement  tools.  The  common  ground  between  these  two  broad  changes  is  that 
both reduce to some extent the benefits in terms of effective compensation fostered 
by Option 2 in order to pursue additional policy objectives, i.e. a horizontal approach 
to  collective  redress,  as  suggested  by  some  stakeholders  and  by  the  European 
Parliament,  and  in  particular  better  protection  for  public  enforcement  following  the 
judgment of the Court of Justice. The option has thus specifically been designed to 
assess  whether  the  loss  in  benefits  as  regards  effective  compensation  are 
counterbalanced  by  reduced  costs  of  litigation  and/or  by  an  optimised  balance 
between public and private enforcement. More specifically, Option 3 differs from 
Option 2 on the following points: 

• 

As regards the protection of public enforcement tools, Option 2 only protects 
leniency corporate statements from disclosure in actions for damages. Option 3 
adds  protection  from  disclosure  of  settlement  submissions,  and  limits 
disclosure  during  investigations  by  competition  authorities.  The  envisaged 
protection of public enforcement tools would not make it excessively difficult 
for  victims  of  a  competition  law  infringement  to  obtain  compensation  for  the 
harm  they  suffered,  because  of  the  limited  scope  of  such  protection.  The 
protection is thus compatible with the right to effective judicial protection, as 
laid down in the EU Charter of Fundamental Rights.  

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• 

• 

• 

As regards quantifying antitrust harm, Option 3 — contrary to Option 2 — 
provides  for  a  rebuttable  presumption  relating  to  overcharge  harm  in  cartel 
cases.  This  presumption  is  based  on  the  findings  of  an  external  study,  which 
concluded that 93 % of examined cartels cause harm. This measure has been 
introduced  to  mitigate  the  impact  of  claimants  having  more  limited  access  to 
some types of evidence that may nonetheless have been useful for proving the 
harm caused by a cartel. For the same reason, Option 3 contains a rule that the 
exercise  of  the  claimant’s  right  to  damages  cannot  be  rendered  practically 
impossible or excessively difficult by the required level of proof. This option 
suggests that Member States should allow the judge to estimate the amount of 
the harm.  

As  regards  collective  redress,  Option  3  contains  no  competition-specific 
measures.  While  acknowledging  the  specificities  of  EU  competition  law 
enforcement  and  the  possibility  of  specific  rules,  this  option  relies  on  a 
separate,  but  horizontal,  approach  to  collective  redress,  through  initiatives 
characterised by a broader scope. 

Finally, Option 3 contains measures on consensual dispute resolution, which 
are  meant  to  counterbalance  the  absence  of  specific  collective  redress 
mechanisms  by  facilitating  other  cost-effective  procedural  means  for  the 
parties. These measures would remove existing disincentives to engage in out-
of-court settlements to compensate for harm caused by an EU competition law 
infringement. 

Option 4 — Non-binding EU initiative. The fourth policy option (Option 4) consists 
of  a  non-binding  instrument  recommending  Member  States  to  implement  the 
measures suggested by policy option 3. 

THE PREFERRED POLICY OPTION 

The impact of the four policy options has been assessed in relation to the following 
benefits and costs: 

17. 

4. 

18. 

– 

Policy options score better in so far as they 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

ensure full compensation for the entire harm suffered; 

effectively  protect  public  enforcement  and  achieve  a  balance  with  damages 
actions in the overall effective enforcement of Articles 101 and 102 TFEU; 

increase awareness, enforcement, deterrence and legal certainty; 

allow for better access to justice; 

lead  to  a  more  efficient  use  of  the  judicial  system,  e.g.  by  avoiding  abuse  of 
litigation and unmeritorious claims; 

contribute to a more level playing field in Europe for consumers and businesses 
alike; 

(7)  have a positive impact on consumer welfare and on SMEs; and 

(8) 

stimulate economic growth and innovation. 

– 

On the cost side, the report looks into the impact on 

(1) 

litigation costs; 

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(2) 

(3) 

(4) 

administrative burden; 

error costs (i.e. the possibility of national courts issuing a mistaken decision); 
and 

the  costs  of  incorporating  the  suggested  measures  into  the  national  legal 
system. 

19. 

After  having  assessed  the  costs  and  benefits  of  the  four  policy  options,  the  report 
finds that policy option 3 is best at meeting the set objectives at the lowest possible 
costs. A streamlined overview of the assessment is set out below, together with the 
main findings explained in the report. 

Table (IA Report): Summary of impacts of Policy Options 1-4 

Impact compared to base-line (0 to +++) 

Option 1 
0 

0 

0 

0 

0 

0 

0 

0 

Benefits achieved/problem 
addressed 

1. Full compensation 

2. Protection of effective 
public enforcement 

3. Increased awareness, 
deterrence, enforcement and 
legal certainty 

4. Access to justice 

5. Efficient use of judicial 
system 

6. A more level playing field 

7. Positive impact on SMEs 
and consumers  

8. Stimulating economic 
growth and innovation 

Costs  

1. Litigation costs 

2. Administrative burden 

3. Error costs 

4. Implementation costs 

Option 2 
+ + + 

+ + 

Option 3 
+ + 

+ + + 

Option 4 
0 / + 

0 / + 

+ + + 

+ + + 

0 / + 

+ + + 

+ + + 

+ + + 

+ + + 

+ + 

+ + + 

+ + 

+ + + 

+ + 

+ + 

Impact compared to base-line (0 to — — -) 
Option 1 
0 

Option 2 
- - 

Option 3 
- 

0 

0 

0 

- - 

- 

- - 

- 

0 / - 

- 

0 / + 

0 / + 

0 / + 

0 / + 

0  

Option 4 
0 / — - 

0 / - 

0 / - 

0 / - 

20. 

A preference for binding EU action. There was a preference for options envisaging 
EU action. This is because 

– 

– 

as  regards  optimising  the  interaction  between  public  and  private  enforcement 
of EU competition rules, there is a growing consensus that this is better dealt 
with  at  EU  level,  in  particular  because  of  the  close  connections  between  the 
Commission and the national competition authorities; 

as  regards  improving  the  procedural  conditions  for  victims  of  an  EU 
competition  law  infringement  to  obtain  compensation,  experience  over  recent 
years has shown that in the absence of EU law, only very few Member States 
are  taking  any  legislative  initiative  in  this  respect.  Where  something  is  being 
done, it covers only some of the obstacles identified by the Commission in its 

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21. 

22. 

23. 

24. 

25. 

Green  and  White  Papers,  and  these  initiatives  have  made  the  legal  landscape 
even more diverse. 

Without EU action, the current divergence between national legislation on actions for 
antitrust  damages  would  persist.  That  would  be  problematic  in  terms  of  the 
effectiveness of damages actions. It would also mean that the internal market would 
remain fragmented in terms of the level of judicial protection, and might encourage 
forum-shopping (which is usually to the detriment of SMEs and consumers, who are 
less  mobile).  This  may  also  result  in  more  complex  and  thus  costly  procedures, 
particularly  in  cross-border  cases.  The  base-line  Option  1  (no  EU  action)  has  thus 
been  ruled  out.  The  preference  for  binding  EU  action,  rather  than  soft  law, 
analogously led to the exclusion of Option 4.  

A  preference  for  a  separate,  but  horizontal,  approach  to  collective  redress.  In  the 
light  of  the  public  consultation  and  in  particular  the  European  Parliament's 
Resolution  of  2  February  2012,  a  horizontal  approach  currently  appears  more 
appropriate than a competition-specific solution. This is mainly because competition 
law is not the only field of EU law in which scattered harm frequently occurs and in 
which  it  is  difficult  for  consumers  and  SMEs  to  obtain  damages  for  the  harm  they 
suffered. Similar problems (high litigation costs compared to the individual damage) 
exist in other  fields  of  law, such  as  consumer  law  or environmental  law. The basic 
principles  applying  to  collective  redress  can,  to  a  large  extent,  be  common  to  all 
these  fields  of  law.  A  horizontal  initiative  may  also  foster  consistency  among  the 
fields where collective redress is considered necessary. However, in so far as specific 
provisions  are  considered  necessary  in  relation  to  competition  law,  these  could  be 
laid down in a separate chapter of the horizontal instrument or in subsequent separate 
legal instruments.  

A preference for a more balanced system of public and private enforcement. Both 
Options 2 and 3 fulfil to a large extent the policy objectives of the Antitrust Damages 
Initiative,  since  both  address  the  main  obstacles  that  currently  hinder  effective 
redress for victims of antitrust infringements, building on European legal traditions. 
Both  options  also  provide  safeguards  for  avoiding  abuse  of  litigation  and 
unmeritorious claims. As such, they have a positive impact on the fundamental right 
to effective judicial protection laid down in the EU Charter on Fundamental Rights. 

Option 2 is somewhat stronger as regards ensuring full compensation for the entire 
harm suffered. However, Option 3 generally provides for a more balanced system. It 
offers  an  overall  improvement  to  the  possibility  of  obtaining  access  to  evidence, 
while  offering  stronger  protection  for  effective  public  enforcement,  by  protecting 
more  documents  from  competition  authorities’  files.  While  satisfying  this  objective 
by  introducing  safeguards,  the  option  still  constitutes  an  improvement  in  terms  of 
tackling  information  asymmetry  in  the  sense  highlighted  by  stakeholders  in  the 
public consultations. The introduction of a rebuttable presumption in relation to the 
existence  of  overcharge  harm  in  cartel  cases,  and  of  the  possibility  to  estimate  the 
amount  of  harm,  make  it  more  likely  that  compensation  for  damages  will  be 
obtained. 

As regards other measures, such as the passing-on defence, limitation periods and the 
binding  effect  of  decisions  adopted  by  NCAs,  Options  3  and  2  do  not  differ.  In 
countries where similar provisions are in force, they constitute a significant incentive 
for  claimants.  If  applied  EU-wide,  they  would  improve  the  chances  of  effective 
redress  for  victims  of  competition  law  infringements,  and  would  help  attain  the 

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objectives  of  the  current  initiative  (compensation,  access  to  justice,  and  ensuring  a 
more level playing field). The binding effect of NCA decisions, in particular, ensures 
more efficient use of the judicial system. 

Costs.  In  terms  of  costs,  Option  3  scores  better  than  Option  2.  Litigation  costs  are 
reduced  by  introducing  the  rebuttable  presumption  in  relation  to  quantification  of 
harm  and  by  facilitating  consensual  dispute  resolution.  Also,  error  costs  and 
implementation costs are lower under Option 3, mainly because there is no provision 
for introducing a sector-specific framework for collective redress. Finally, enhanced 
protection  of  public  enforcement  under  Option  3  would  reduce  the  administrative 
burden. 

CONCLUSION 

Option 3 was chosen as the preferred policy option to achieve the objectives of the 
Antitrust Damages Initiative. 

26. 

5. 

27. 

Summary of the contents of the preferred policy option 

Full compensation 

Any  injured  party  (both  direct  and  indirect  purchasers)  can  claim  full 
compensation for the damage suffered as a result of an infringement of 
Articles  101  or  102  TFEU.  Full  compensation  includes  compensation 
for the actual loss and the loss of profit, plus interest. 

Disclosure of 
evidence 

The preferred policy option provides for a regime of disclosure of specified 
categories  of  evidence  between  the  parties  to  an  antitrust  damages  action. 
In  addition,  it  provides  for  safeguards  concerning  the  disclosure  of 
documents from the file of a competition authority. 

Limited liability 
of the immunity 
recipient 

To  maintain  the  attractiveness  of  the  Commission’s  and  the  NCAs’ 
leniency  programmes,  the  immunity  recipient’s  liability  is  limited  to  its 
share  of  the  harm  caused.  The  immunity  recipient  should  remain  fully 
liable when injured parties cannot obtain compensation from co-infringers.  

Binding effect of 
NCAs’ decisions 

National  courts  dealing  with  actions  for  damages  are  bound  by  NCA 
decisions establishing an infringement of the EU competition rules.  

Limitation 
periods 

Passing-on of 
overcharges 

Presumption of 
harm 

Limitation  periods  should  not  impair  the  right  to  full  compensation. 
Moreover,  victims  should  effectively  be  able  to  bring  a  damages  action 
after a final decision of a competition authority. 

The defendant can invoke a passing-on defence against a claim brought by 
the  direct  purchaser.  Conversely,  in  order  to  facilitate  claims  brought  by 
indirect purchasers, proving pass-on of the overcharge to their level is made 
easier. 

Victims  of  cartels  will  be  able  to  rely  on  a  rebuttable  presumption  that  a 
cartel leads to overcharge harm. Furthermore, requirements under national 
law to quantify the harm suffered must not make it practically impossible 
or excessively difficult for a claimant to obtain compensation. 

Consensual 
dispute resolution 

Consensual  dispute  resolution  is  facilitated,  as  it  may  constitute  a  quicker 
and less costly alternative to court litigation.  

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