COMMISSION STAFF WORKING DOCUMENT IMPLEMENTATION PLAN Accompanying the document 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: damages, free competition, indemnification, restriction on competition

EUROPEAN 
COMMISSION 

Brussels, 2.7.2013  
SWD(2013) 270 final 

Suite à une erreur technique, ce document n’a pas été transmis avec le COM(2013) 404 qu’il 
accompagne. 

COMMISSION STAFF WORKING DOCUMENT 

IMPLEMENTATION PLAN 

Accompanying the document 

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} 
{SWD(2013) 204 final}

EN 

   EN 

 
 
 
 
 
  
 
IMPLEMENTATION PLAN1 for the 

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. INTRODUCTION 

The proposed Directive 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 (hereinafter: "the Directive") pursues the objectives of achieving effective enforcement 
of  the  right  to  compensation  for  harm  caused  by  infringements  of  the  antitrust  rules  and  to 
level the playing field in the internal market for consumers and businesses. In order to achieve 
these objectives, 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. The proper and 
timely transposition of such measures may raise some implementation challenges, concerning 
not only the smooth incorporation of antitrust specific rules in national legal orders, but also 
the prompt and coherent application of those rules in national courts. The practical effect of 
the provisions of the proposed Directive may also rest on the extent to which information can 
be successfully disseminated among stakeholders. 

The  Commission's  services  have  thus  laid  down  the  present  implementation  plan,  which 
identifies  implementation  challenges  and  suggests  a  set  of  actions  aimed  at  targeting  them. 
The  measures,  which  are  summarised  in  explanatory  tables  annexed  to  the  present  plan, 
encompass  both  actions  by  the  Commission  and  actions  by  the  Member  States.  The  time-
frame of the actions is structured depending on the specific needs that may arise at different 
stages  of  the  transposition  process  and  even  beyond  it.  The  actions  envisaged  for  Member 
States  are  meant  to  foster  cooperation  with the  Commission  in  view  of  easing  transposition 
tasks  and  foster  better  compliance  with  their  obligations.  The  actions  envisaged  by  the 
Commission  are  meant  to  loyally  assist  and  support  the  Member  States  in  the  fulfilment  of 
their tasks, to monitor the implementation process, and to ensure an adequate dissemination of 
information to stakeholders and support of national courts.  

This Implementation Plan is provided for information purposes only. It does not legally bind 
the  Commission  on  whether  the  identified  actions  will  be  pursued  or  on  the  form  in  which 
they will be pursued. As regards Member State actions, the present implementation plan does 
not create further legal obligations on the Member States other than those stemming from the 
proposed  Directive,  in  accordance  with  the  Treaties.  It  should  be  noted  that  possible 
adjustments  and  modifications  of  the  present  plan  could  be  necessary  to  reflect  future 
developments in the implementation of the proposed Directive. 

1 This Implementation Plan is provided for information purposes only. It does not legally bind the Commission 
on whether the identified actions will be pursued or on the form in which they will be pursued.  

 
 
 
 
 
                                                 
2. CONTACT POINT 

The  contact  point  for  information  about  the  implementation  plan  and  for  cooperation  in  the 
performance  of  the  actions  it  suggests,  is  the  Commission's  Directorate-General  for 
Competition – Unit A6 Private Enforcement. In order to ensure prompt support and a unified 
port  of  call  for  all  issues  arising  from  the  proposed  Directive,  the  following  functional 
mailbox has already been activated:  

COMP-DAMAGES-ACTIONS@EC.EUROPA.EU 

As regards national courts willing to avail themselves of the cooperation mechanisms already 
offered under the EU legal order, the following mailbox is already active:  

COMP-AMICUS@EC.EUROPA.EU 

3. DELIVERABLES AND IMPLEMENTATION CHALLENGES 

The challenges arising from the implementation of the proposed Directive go beyond the mere 
transposition  of  the  measures  into  national  law,  and  may  give  rise  to  specific  risks  and 
problematic issues. As regards these specific risks, four main challenges have been identified. 
These challenges are explained in the following sub-sections alongside the suggested support 
actions by the Commission and the Member States. 

3.1. Providing full implementation within the time-frame 

Member  States  have  to  ensure  that  national  rules  governing  damages  actions  for  breach  of 
national and EU antitrust rules comply with the proposed Directive. In order to comply with 
their  obligation,  Member  States  may  amend  existing  general  tort  rules  within  their  legal 
system or lay down specific rules applicable to antitrust damages actions. 

The monitoring of existing national rules applicable to antitrust damages actions and the clear 
understanding of the obligations stemming from the proposed Directive are crucial activities 
for  a  full  and  timely  implementation.  Firstly,  they  will  help  understanding  which  existing 
rules are already in line with the requirements of the proposed Directive. Secondly, they will 
facilitate the assessment of what further amendments are necessary and appropriate to ensure 
full compliance by the Member States. Following this assessment, an adequate planning for 
the adoption of the required measures should also be foreseen.  

The  Commission  should  loyally  cooperate  with  the  Member  States  in  the  evaluation  of 
specific problems and in the development of tailored solutions to the technical issues that may 
arise.  Member  States  should  also  assist  the  Commission  by  transmitting  information  on  the 
implementation  measures  undertaken,  thus  enabling  it  to  monitor  the  progress  of  the 
transposition process within the time-frame.  

3.2. Exchange of best practices in meeting technical challenges 

In order to meet the requirements of the proposed Directive, Member States may benefit from 
experience from  other jurisdictions  in a cross-exchange  of  best  practices.  This  should  cover 
both  the  monitoring  of  existing  measures  and  the  identification  of  better  and  more  efficient 
technical solutions to the implementation challenges arisen. 

 
 
 
 
 
 
 
 
A constant exchange of information is thus necessary, although it may in some instances be 
made  difficult  by  the  specificities  and  differences  of  each  national  legal  order.  The 
Commission is prepared to foster this process. Member States are thus invited to enter into a 
constant  dialogue  with  the  Commission  about  the  problems  encountered,  the  technical 
solutions devised, and the best practices already available at national level. The Commission, 
on its part, should ensure adequate availability and exchange of such information in order to 
ease  the  process  and  allow  better  mutual  understanding  among  the  responsible  actors  at 
Member States' level. 

3.3.  Ensuring  adequate  training  and  support  for  national  courts  in  applying  the  rules 
transposing the proposed Directive and fostering cooperation 

Beyond  the  alignment  of  the  national  legal  system  to  the  requirements  of  the  Directive  in 
order to achieve a minimum standard across the internal market, the success of the initiative 
and the practical effect of the proposed Directive crucially depends on the enforcement of the 
rights  and  obligations  of  individuals  under  the  Treaty  and  pursuant  to  the  implementing 
provisions adopted by Member States. The Commission identified effective compensation for 
victims of competition law infringements as an indicator which will determine the successful 
implementation  of  the  proposed  Directive.  This  equally  applies  to  the  application  of  the 
provisions  meant  to  safeguard  public  enforcement  of  the  competition  rules  by  the 
Commission  and  national  competition  authorities  and  regulate  its  interplay  with  actions 
pending before those national courts.  

The role played by national courts in this implementation challenge is crucial. It is therefore 
necessary  to  foresee  specific  actions  in  order  to  foster  adequate  training  and  support  for 
national courts both at national and at EU level. This should also encompass actions aimed at 
increasing  knowledge  of  the  duties  of  national  courts  under  the  EU  legal  order  and  of  best 
application  practices  by  national  courts  compatibly  with  the  applicable  national  rules.  The 
Commission should also undertake actions to offer support to national courts within existing 
cooperation mechanisms. 

3.4. Ensuring adequate information to citizens and businesses 

Beyond  the  full  implementation  of  the  proposed  Directive  in  national  legal  orders,  actions 
should  be  put  in  place  to  further  advance  awareness  of  victims  of  antitrust  infringements 
about  the  possibilities  offered  to  them  under  the  EU  and  the  national  legal  order  to  obtain 
redress  for  the  harm  suffered.  The  dissemination  of  information  should  also  reach  those 
undertakings that may cooperate with the Commission and national competition authorities, in 
order to increase legal certainty about the legal framework governing the interaction between 
public  and  private  enforcement.  Increased  awareness  may  thus  produce  benefits  in  terms  of 
compliance  by  undertakings,  while  improved  legal  certainty  about  the  interplay  between 
public  and  private  enforcement  could  foster  increased  cooperation  by  infringers  with 
competition authorities.   

 
 
 
 
 
4. SUPPORT ACTIONS 

4.1 Commission Actions 

a) Full implementation within the time-frame 

•  The Commission should make available all information about the proposed Directive 
useful  to  clearly  identify  the  scope  of  the  obligations  for  the  Member  States  and  by 
making  available  all  the  useful  preparatory  documents.  To  this  end,  all  relevant 
information  about  the  Commission's  policy  documents,  external  studies,  documents 
for  public  consultation  and  responses  thereof  are  already  available  on  the  dedicated 
website pages at: 
http://ec.europa.eu/competition/antitrust/actionsdamages/documents.html. 
These pages will be updated when necessary. 

•  Upon request by the relevant services within the Member States, the Commission will 
offer advice on technical issues arisen. To this end, the Commission identified a single 
contact  point  within  its  services,  that  can  be  reached  through  the  functional  address 
indicated below in point 5. The Commission services will also be available to respond 
to such requests in bilateral meetings. 
If  significant  transposition  issues  would  arise  in  several  Member  States,  the 
Commission may consider issuing interpretative guidance.  

• 

b) Exchange of best practices in meeting technical challenges 

•  The  Commission  will  open  a  dedicated  page  on  its  website,  where  transposition-
related  information  will  be  published  in  order  to  allow  for  comparison  and  cross-
exchange of best practices.   

•  Should  particular  difficulties  arise  in  several  Member  States,  the  Commission  may 
consider  the  set-up  of  a  network  to  discuss  technical  issues  and  recurring 
implementation challenges, in order to facilitate the discussion among Member States 
and the exchange of best practices.  

c) Ensuring adequate training and support for national courts and fostering cooperation 

•  The  Commission  should  continue  its  effort  of  analysis  of  the  relevant  case-law  of 
national  courts  on  actions  for  damages  as  well  as  consensual  settlements  among  the 
parties where available. Within this activity, the Commission may set-up a database of 
non-confidential version of judgments issued by national courts.  

•  The  Commission  will  participate  in  conferences  aimed  at  raising  national  judges' 
awareness  of EU competition  law  and  the issues covered by the proposed  Directive. 
The  Commission  endeavours  to  contribute  to  activities  of  national  training 
programmes for judges and organise meetings with associations of judges specifically 
dealing with competition law issues.  

•  The Commission should continue its programme on the training of judges on issues of 
application of the EU competition rules. It will consider strengthening the focus of the 
programme on private enforcement and will take specific training needs within certain 
jurisdictions into account. 

•  Within  the  above  actions,  the  Commission  will  pursue  awareness  raising  initiatives 
about  the  existing  cooperation  mechanisms  under  Article  15  of  Regulation  1/2003, 

 
 
 
 
 
 
 
 
notably  about  the  possibility  for  national  courts  to  request  information  or  opinions 
from the Commission on issues of application of Articles 101 and 102 of the Treaty. 
Where  appropriate,  under  the  conditions  established  by  the  same  provision,  the 
Commission  may  avail  itself  of  the  possibility  to  submit  observation  of  its  own 
initiative, when the coherent application of those Treaty provisions so requires.  

•  The  concrete  application  of  Articles  101  and  102  TFEU  and  the  implementing 
provisions of the proposed Directive before national courts will be one of the specific 
criteria for the ex-post evaluation of the initiative (see also below, point 4 paragraph 
d). In drawing up its report to the European Parliament and Council, the Commission 
will  specifically  address  possible  improvements  in  view  of  the  experience  on  the 
application by national courts.  

d) Ensuring adequate information to citizens and businesses 

•  The  Commission  will  intensify  its  advocacy  effort  by  participating  at  stakeholder 
events  aimed at increasing  awareness on the right to compensation and the interplay 
between public and private enforcement of the antitrust rules. 

•  The website-page of DG Competition will be regularly updated to provide information 
to  potential  victims  about  the  possibilities  offered  under  EU  and  national  law.  DG 
Competition  will  produce  informative  material,  such  as  brochures,  particularly 
targeted  at potential victims  of antitrust infringements,  including  small  and  medium-
sized enterprises (SME) and consumers.  

•  As  regards  compensation  claims  following  an  infringement  decision  adopted  by  the 
Commission,  it  is  current  practice  to  inform  potential  victims  of  their  right  to 
compensation in the press releases announcing such decisions. The Commission will 
maintain this practice. 

4.2 Member States' Actions 

a) Full implementation within the time-frame 

• 

•  Member  States  may  at  any  moment  inform  the  Commission's  services  of  specific 
technical challenges encountered and questions arisen within the transposition effort, 
so  as  to  allow  the  Commission  to  offer  the  available  information  and  assistance  that 
they  may  require.  Member  States  may  also  informally  consult  the  Commission's 
services on draft transposition measures.  
In  order  to  make  it  possible  for  the  Commission  to  monitor  the  transposition  efforts 
made  and  the  progress  in  the  transposition  of  the  Directive  within  the  time-frame, 
Member  States should communicate to  the  Commission the text of laws, regulations 
and administrative provisions adopted to comply with the Directive (Article 20 of the 
proposed Directive), or the text of already existing provisions that they consider to be 
in  line  with  it.  Such  provisions  should  contain  a  reference  to  the  Directive  or  be 
accompanied by a reference on the occasion of their official publication, in the form 
chosen by the Member States. 

•  Member States should transmit explanatory documents showing which existing or new 

provisions implement the individual measures set out in the proposed Directive.  

 
 
 
 
 
 
 
 
 
 
b) Exchange of best practices in meeting technical challenges 

•  Member  States  should  transmit  transposition-related  information  to  the  Commission 

and communicate any significant implementation issue. 

•  Where  efficient  solutions  are  already  in  place  under  national  law  or  have  been 
introduced within the transposition of the proposed Directive, Member States should 
inform the Commission so as to allow it to offer specific examples to other Member 
States that may be facing similar issues.  

c) Ensuring adequate training and support for national courts and fostering cooperation 

•  Member States could meet specific needs of national courts on the issues covered by 
the  proposed  Directive  within  the  training  programmes  for  their  judges,  either  in 
general  programmes  within  the  initial  and  continuous  training  for  the  judiciary  or, 
where  applicable,    in  specific  initiatives  aimed  at  judges  that  are  called  to  apply 
competition law. 

•  Under Article 15(2) of Regulation 1/2003, Member States must transmit a copy of any 
written judgment of national courts deciding on the application of Article 101 or 102 
TFEU.  However,  at  present  only  a  minority  of  Member  States  complies  with  this 
provision. In order to enable the Commission to cooperate with national courts, better 
analyse national case-law, and identify potential training needs, Member States should 
systematically abide by this obligation. 

•  Under  Article  15(3)  of  Regulation  1/2003  also  national  competition  authorities 
('NCAs')  are  entitled  to  cooperate  with  national  courts  by  submitting  written 
observations  to  national  courts  of  their  Member  State  on  issues  of  application  of 
Articles  101  and  102  TFEU.  The  Commission  and  NCAs  may  consider  further 
cooperation on how to make best use of this joint competence.  

d) Ensuring adequate information to citizens and businesses 

•  Member States should update their information sources, particularly those targeted at 
potential  victims  of  antitrust  infringements,  including  small  and  medium-sized 
enterprises  (SME)  and  consumers,  about  the  possibility  to  obtain  compensation  for 
harm resulting from antitrust infringements.  

•  National  competition  authorities  may  follow  the  Commission's  practice  of  informing 
potential victims of antitrust infringements through press releases accompanying their 
decisions. The Commission will encourage such practice through informative actions 
within the European Competition Network 

4.3 Timing for Support Actions 

Planned  actions  to  achieve  the  objectives  outlined  above  should  take  place  progressively 
before,  during  and  after  the  implementation  period  foreseen  in  the  proposed  Directive.  In 
general, the actions may have to take place in one or more of the following indicative steps: 

(a) Step 1: Adoption of the proposed Directive  

Immediately after the adoption, the Commission endeavours to take all actions to disseminate 
information  to  Member  States  and  stakeholder,  and  adopt  all  technical  means  of  support  to 
promptly offer assistance to Member States throughout the entire transposition process. 

 
 
 
 
 
 
 
 
 
(b) Step 2: First six months of the transposition period  

In  this  period,  the  Commission  should  accompany  its  information  effort  with  a  monitoring 
effort of technical challenges identified by Member States in the review of national rules that 
fall within the scope of the Directive. Member States may facilitate this process by informing 
the Commission's services of questions arisen. The Commission actions targeting support and 
cooperation  with  national  courts  and  awareness-raising  among  stakeholders  should  be 
intensified.  

(c) Step 3: Last 18 months of the transposition period 

The monitoring action by the Commission should extend to the measures that Member State 
start  adopting  to  fulfil  the  obligations  stemming  from  the  Directive.  The  dissemination  of 
information on the part of the Commission should focus more intensely on the exchange of 
best practices among Member States. Member States shall publish the transposition measures 
adopted  and  inform  the  Commission  thereof.  The  Commission  should  make  available  such 
information on its website.  

(d) Step 4: After the expiry of the transposition period  

The Commission should intensify the monitoring on the issues of application of the new legal 
framework  before  national  courts  as  regard  effective  enforcement  of  the  right  to 
compensation,  removal  of  disparities  within  the  internal  market,  and  optimal  interplay 
between public and private enforcement in the overall effective enforcement of the antitrust 
rules. Continued cooperation with and support to national courts.  

The  Commission  will  perform  an  ex-post  evaluation  of  the  extent  to  which  the  proposed 
Directive  has  improved  the  legal  framework  for  the  effective  enforcement  of  the  right  to 
antitrust damages and levelled the playing field for the full exercise of the rights and freedoms 
that businesses and consumers derive from the internal market. Following this evaluation, and 
in  order  to  target  specific  issues  arisen,  the  Commission  should  review  the  Directive  and 
report  to  the  European  Parliament  and  the  Council  within  5  years  from  the  expiry  of  the 
deadline for transposition (Article 19 of the proposed Directive). 

 
 
 
 
 
ANNEX 1 

DETAILED IMPLEMENTATION PLAN 

The following tables summarise the implementation plan, and give a detailed overview of 
which actions are foreseen to achieve its objectives, and the envisaged time-frame for the 
actions.  
The timing of the support actions envisaged is structured as follows: 

Step 1: Adoption of the proposed Directive; 

Step 2: First six months of the transposition period;   

Step 3: Last 18 months of the transposition period; 

Step 4: After the expiry of the transposition period.  

ACTIONS BY THE COMMISSION TO PROVIDE GENERAL ASSISTANCE TO THE MEMBER 

A. 
STATES AND NATIONAL COURTS 

Implementation Challenge 

Action 

Timing 

Full implementation 
within the time-frame 

Exchange of best practices 
in meeting technical 
challenges 

Ensuring adequate 
training and support for 
national courts in applying 
the rules transposing the 
proposed Directive and 
fostering cooperation. 

Publication  on  website  of  useful 
information 
background 
and 
documents.  

Already 
available; 
regular  updates  when 
necessary 

Advice  on 
to 
technical 
Member  States'  services,  bilateral 
meetings.  

issues 

Steps 2 and 3 

Single  point  of 
implementation issues.  

contact 

for 

Already available 

Issuance of interpretative guidance  Step 3 (if necessary) 

to 
transposition-related 

discussion 

for 
issues  and 

Dedicated  page  on  website 
publish 
information  
Network 
technical 
implementation challenges 
Monitoring 
and 
relevant case-law  
Data-base 
of 
national courts.  

judgments 

analysis 

of 
recurring 

Step 1 

Steps  2  and  3 
necessary) 

(if 

of 

of 

Steps 1, 2, 3 and 4 

Step 4 

Advocacy actions, also targeted at 
existing cooperation mechanisms 

Steps 2, 3 and 4 

Training of national judges 

Steps 1, 2, 3 and 4 

 
 
 
 
 
 
 
 
Ex-post  evaluation  of  specific 
issues  of 
application  before 
national courts 

Steps 4 

efforts, 
advocacy 
Increased 
dedicated  website  and  informative 
materials 

Regular  information  of  potential 
victims 
infringement 
decisions are adopted 

when 

Steps 2, 3 and 4 

Steps 1, 2, 3 and 4 

Ensuring adequate 
information to citizens and 
businesses 

ACTIONS BY THE MEMBER STATES TO ENSURE SMOOTH IMPLEMENTATION AND 

B. 
ADDRESS POTENTIAL RISKS 

Implementation Challenge 

Action 

Timing 

Full implementation 
within the time-frame 

Communication  of  text  of  laws, 
regulations 
administrative 
provisions adopted to comply with 
the Directive  

and 

Steps 2 and 3 

Communication  of  existing  rules 
that  are  considered  already  in  line 
with the Directive. 

Step 1 

Information  of  the  Commission 
challenges 
about 
the 
encountered 
transposition period  

specific 

within 

Steps 2 and 3 

Consultation  of  the  Commission's 
transposition 
services  on  draft 
measures  

Steps 2 and 3 

Draw-up  explanatory  documents 
on 
provisions 
implementing  the  measures  of  the 
proposed Directive 

national 

Steps 2, 3 and 4 

Exchange of best practices 
in meeting technical 
challenges 

Exchange  of 
information  with 
other  Member  States  through  the 
Commission 
efficient 
solutions to transposition issues.  
Training  of  national  judges  under 
training 
general 

specific 

about 

or 

Steps 2 and 3 

Step 4 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Ensuring adequate 
training and support for 
national courts in applying 
the rules transposing the 
proposed Directive and 
fostering cooperation. 

Ensuring adequate 
information to citizens and 
businesses 

of 

programmes.  
Transmission 
national 
judgments  applying  Articles  101 
and  102  TFEU  (Art.  15(2)  of 
Regulation 1/2003).  
Written  observations  by  national 
competition  authorities 
the 
courts  of  their  Member  State  on 
issues  of  application  of  Articles 
101 and 102 TFEU. 

to 

States 
of  Member 
Update 
information  sources,  particularly 
those 
and 
consumers 

at  SMEs 

aimed 

Steps 1, 2, 3 and 4 

Steps 1, 2, 3 and 4 

Steps 3 and 4 

Regular  information  of  potential 
victims 
infringement 
decisions  are  adopted  by  National 
Competition Authorities 

when 

Steps 1, 2, 3 and 4