COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT REPORT 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 (Text with EEA relevance)
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) 203 final 

COMMISSION STAFF WORKING DOCUMENT 

IMPACT ASSESSMENT REPORT 

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 
(Text with EEA relevance) 

{COM(2013) 404 final} 
{SWD(2013) 204 final}

EN 

   EN 

 
 
 
 
 
  
 
 
 
 
TABLE OF CONTENTS 

1. 

2. 

2.1. 

2.2. 

The subject-matter of the impact assessment............................................................... 6 

Procedural issues and consultation of interested parties .............................................. 7 

Background .................................................................................................................. 7 

Public consultation on the White Paper ....................................................................... 8 

2.2.1.  Civil society ................................................................................................................. 8 

2.2.2. 

Institutional stakeholders ............................................................................................. 9 

2.3. 

2.4. 

2.5. 

2.6. 

3. 

3.1. 

3.2. 

3.3. 

3.4. 

Public consultation on the quantification of damages.................................................. 9 

Public consultation on a coherent approach to collective redress.............................. 10 

Inter-service consultation ........................................................................................... 11 

The Impact Assessment Board................................................................................... 12 

Problem to be addressed............................................................................................. 14 

The interaction between public and private enforcement remains unclear under the 
current legal framework ............................................................................................. 14 

The current legal framework for damages actions in cases of competition law 
infringements is ineffective as victims experience major difficulties to obtain 
compensation.............................................................................................................. 17 

The current legal framework could endanger the proper functioning of the internal 
market......................................................................................................................... 21 

Scope and costs of the uncertainty relating to the interaction between public and 
private enforcement and the ineffectiveness of the legal framework for actions for 
damages...................................................................................................................... 23 

3.4.1.  Scope and cost: ill-regulated interface between public and private enforcement ...... 23 

3.4.2.  Scope and cost: ineffective legal framework for compensation ................................ 24 

4. 

4.1. 

4.2. 

5. 

5.1. 

5.2. 

5.3. 

Objectives................................................................................................................... 27 

General objectives...................................................................................................... 27 

Specific objectives ..................................................................................................... 27 

Contents of the current Antitrust Damages Initiative ................................................ 32 

The 2008 IAWP and the choice of the 'Preferred Option'.......................................... 32 

The current Antitrust Damages Initiative - scope of the assessment ......................... 32 

Description of the Policy Options assessed in the current initiative.......................... 33 

5.3.1.  Option 1: the baseline scenario of no EU action in the field of antitrust damages 

actions ........................................................................................................................ 34 

5.3.2.  Option 2: adopting the White Paper's suggested measures through a legislative 

instrument................................................................................................................... 34 

5.3.3.  Option 3: legislative proposal based on the White Paper and additional safeguards. 35 

5.3.4.  Option 4: non-regulatory measures............................................................................ 39 

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5.4. 

Provision of non-binding assistance for quantification of damages .......................... 39 

6. 

Impact analysis........................................................................................................... 41 

6.1. 

Assessment criteria..................................................................................................... 41 

6.1.1.  Benefits ...................................................................................................................... 42 

6.1.2.  Costs........................................................................................................................... 44 

6.2. 

Identifying and assessing the impact of each option.................................................. 45 

6.2.1.  Option 1...................................................................................................................... 46 

6.2.2.  Option 2...................................................................................................................... 48 

6.2.3.  Option 3...................................................................................................................... 51 

6.2.4.  Option 4...................................................................................................................... 53 

7. 

Comparing the options ............................................................................................... 56 

7.1. 

Comparing the policy options and assessment of the preferred option ..................... 56 

7.1.1.  Summary comparison of the options and identification of the preferred option ....... 56 

7.1.2.  Litigation costs of the preferred option...................................................................... 63 

7.1.3.  Transposition costs for the Member States ................................................................ 66 

7.2. 

Choice of legal instrument ......................................................................................... 68 

7.2.1.  The options................................................................................................................. 68 

7.2.2.  Regulation .................................................................................................................. 68 

7.2.3.  Regulation and Directive............................................................................................ 69 

7.2.4.  Directive..................................................................................................................... 69 

7.3. 

Proportionality and EU added value of the Preferred Option .................................... 69 

7.3.1.  Subsidiarity: European added value........................................................................... 70 

7.3.2.  Proportionality............................................................................................................ 71 

8. 

Monitoring and evaluation ......................................................................................... 72 

ANNEX 1................................................................................................................................. 74 

1. 

2. 

3. 

Overview .................................................................................................................... 74 

Functioning of the EU Leniency Programme ............................................................ 74 

Leniency programmes in the Member States............................................................. 75 

ANNEX 2................................................................................................................................. 76 

1. 

2. 

3. 

Facts and background................................................................................................. 76 

The preliminary question ........................................................................................... 76 

The judgment of the Court ......................................................................................... 76 

ANNEX 3................................................................................................................................. 78 

1. 

AUSTRIA .................................................................................................................. 78 

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2. 

3. 

GERMANY................................................................................................................ 78 

UNITED KINGDOM................................................................................................. 79 

ANNEX 4 ................................................................................................................................. 80 

1. 

2. 

3. 

4. 

Introduction ................................................................................................................ 80 

The IAWP's Policy Option 1...................................................................................... 80 

The IAWP's Policy Option 2...................................................................................... 81 

The IAWP's Policy Option 3...................................................................................... 81 

ANNEX 5................................................................................................................................. 83 

ANNEX 6................................................................................................................................. 84 

ANNEX 7................................................................................................................................. 86 

ANNEX 8................................................................................................................................. 90 

1. 

2. 

Main trends among respondents to the White Paper.................................................. 90 

Specific suggestions on individual sections of the White Paper................................ 90 

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COMMISSION STAFF WORKING DOCUMENT 

IMPACT ASSESSMENT REPORT 

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 
(Text with EEA relevance) 

1. 

1. 

THE SUBJECT-MATTER OF THE IMPACT ASSESSMENT 

Since 2001 the Court of Justice ("the Court") repeatedly stated that, as a matter of EU 
law,  any  individual  must  be  able  to  claim  compensation  for  the  harm  suffered  as  a 
result  of  an  infringement  of  the  EU  competition  rules.1  More  than  10  years  later, 
most  victims  of  a  competition  law  infringement  are  still  not  able  to  effectively 
exercise that EU right to compensation. This is largely due to a lack of appropriate 
national rules governing actions for damages. Even where such rules exist, they are 
so different from Member State to Member State that it results in an uneven playing 
field  for  both  infringers  and  victims  of  the  illegal  conduct.  More  recently,  a  new 
issue  has  arisen,  showing  that  the  EU  right  to  compensation  can  sometimes  be  at 
odds with the effectiveness of public enforcement of the EU competition rules. For 
example  there  exists  legal  uncertainty  as  to  whether  information  that  a  competition 
authority had obtained in the course of its enforcement of the EU competition rules, 
is  disclosable  in  damages  actions  before  national  courts.  Such  disclosure  could  be 
particularly detrimental for the effectiveness of the leniency programmes and hence 
for the effectiveness of the fight against secret cartels.2 

2. 

To  remedy  these  two  gaps  in  the  enforcement  of  the  EU  competition  rules,  the 
current Antitrust Damages Initiative has two primary objectives: 

(i) 

to maintain effective public enforcement of the competition rules by regulating 
some key aspects of the interaction between public enforcement of competition 
law  by  the  Commission  and  national  competition  authorities  and  private 
enforcement  of  competition  law  through  actions  for  damages  before  national 
courts; and  

(ii) 

to ensure an effective exercise of the EU right to compensation.  

1 

2 

Case  C-453/99,  Courage  and  Crehan,  [2001]  ECR  I-6297,  and  joined  cases  C-295/04  to  C-298/04, 
Manfredi, [2006] ECR I-6619. 
Case C-360/09, Pfleiderer AG v Bundeskartellamt, [2011] ECR I-5161. 

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The  result  of  this  initiative  should  be  an  effective  system  of  public  and  private 
enforcement of competition law that contributes to fostering growth and innovation 
throughout the EU. 

2. 

PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES 

2.1. 

Background 

3. 

4. 

5. 

6. 

On 19 December 2005 the Commission adopted a Green Paper on damages actions 
for  breach  of  the  EC  antitrust  rules,  identifying  the  main  obstacles  to  effective 
compensation.3  The  public  consultation  met  a  wide  response4  and  also  institutional 
stakeholders  issued  their  opinion.  The  European  Parliament  ('the  Parliament') 
adopted a Report and a Resolution in 2007,5 in which it called on the Commission to 
prepare a White Paper with detailed proposals to facilitate actions for damages.  

The Commission met a group of experts from the Member States on two occasions in 
autumn 2007, in preparation of the White Paper. Experts represented the Ministries 
of  Justice,  Ministries  of  Economic  Affairs  and  national  competition  authorities 
('NCAs').  Representatives  of  the  EFTA  and  its  members  were  present.  The 
Commission  also  met  a  delegation  of  judges  of  national  supreme  courts,  courts  of 
appeal, courts of first instance and specialist competition tribunals from 12 Member 
States6 to discuss specific issues related to antitrust damages actions. 

Commission  staff  participated  in  a  large  number  of  events  (conferences,  expert 
panels,  etc.)  to  discuss  more  effective  EU  antitrust  damages  actions  and  their 
implications.  DG  Competition,  in  particular,  repeatedly  met  a  wide  range  of 
stakeholders  and  experts,  notably  consumer  associations,  business  representatives, 
lawyers and academics. 

On  2  April  2008  the  Commission  adopted  a  White  Paper  on  damages  actions  for 
breach of the EC antitrust rules7, that put forward suggestions for specific measures 
that  would  ensure  the  effective  exercise  of  the  right  to  compensation  of  antitrust 
harm. The White Paper was accompanied by an Impact Assessment ('IAWP').8  

2.2. 

Public consultation on the White Paper 

2.2.1.  Civil society 

7. 

The  White  Paper  was  the  object  of  an  intense  debate.  A  large  number  of  public 
authorities  and  stakeholders  from  almost  all  Member  States  submitted  comments.9 

3 

4 

5 

6 

7 

8 
9 

to 

of 

on 

the 

the 

the 

refer 

Green 

version 

electronic 

submissions 

Comparative 

COM(2005)672. The Green Paper was prepared by a 2004 study on the conditions under which private 
parties can bring actions for antitrust damages ('the Comparative Study'). Page numbers quoted in this 
report 
Study: 
http://ec.europa.eu/comm/competition/antitrust/others/actions_for_damages/study.html. 
The 
available 
http://ec.europa.eu/comm/competition/antitrust/actionsdamages/green_paper_comments.html.  
2006/2207(INI). 
The  Resolution 
http://www.europarl.europa.eu/oeil/file.jsp?id=5378362.  
Invitations  were  issued  via  the  Association  of  European  Competition  Law  Judges,  the  European 
Network of Councils for the Judiciary and the Network of the Presidents of the Supreme Judicial Courts 
of the EU. 
COM(2008)165  and  the  accompanying  Commission  Staff  Working  Paper  (SEC(2008)404)  ('the  2008 
Staff Working Paper'). 
SEC(2008)405. See also the Executive Summary of the Impact Assessment (SEC(2008)406). 
The  more 
http://ec.europa.eu/competition/antitrust/actionsdamages/white_paper_comments.html. 

the  White 

submissions 

Parliament 

European 

available 

available 

Paper 

Paper 

than 

170 

the 

are 

are 

at: 

on 

of 

at 

at 

is 

EN 

6 

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Very few respondents questioned the idea underpinning the White Paper that in most 
cases  victims  of  competition  law  infringements  in  practice  do  not  obtain  the 
compensation they are entitled to under EU law. Most agreed that something needs 
to  be  done  to  remedy  this  situation.  Many  respondents  explicitly  welcomed  the 
approach  of  the  White  Paper  to  pursue,  as  a  primary  policy  objective,  the  aim  of 
effective  compensation  of  victims  (rather  than  punishment  or  deterrence  of 
infringers) and to seek solutions that are balanced and rooted in the European legal 
traditions.  Divergent  opinions  emerged  as  to  the  need  for  an  initiative  at  EU  level, 
the  consequences  in  terms  of  increased  litigation,  the  interaction  with  public 
enforcement, and the means by which the goal of more effective compensation can 
be most appropriately achieved. 

Different  groups  of  stakeholders  belonging  to  civil  society  expressed  different 
opinions on the White Paper and its suggested measures. Below is a summary of the 
opinions of the three groups of stakeholders that submitted most replies. 

Businesses and Business Associations 

Among civil society, business associations were generally negative both on the need 
for  a  Commission  initiative  and  on  the  substance  of  the  proposals.  However, 
proposed  measures  which  are  favourable  to  the  position  of  defendants,  such  as  the 
passing-on defence and protection of corporate statements from disclosure in actions 
for damages, were received positively by the business community.  

There are two groups of exceptions to the generally negative opinion of the business 
associations.  The  first  exception  is  that  of  business  associations  representing  only 
small  and  medium  sized  enterprises.  These  associations  generally  welcomed  the 
focus  on  SMEs,  which  often  suffer  harm  from  anticompetitive  behaviour  that  they 
are not able to recover, and expressed an overall positive view on the White Paper.  

The  second  exception  is  given  by  a  number  of  companies  that  had  allegedly  been 
victims  of  anticompetitive  conduct,  such  as  customers  of  cartelists  in  the  beer,  the 
paper  and  the  elevator  cartel.  The  submissions  of  these  companies  are  broadly 
supportive  of  the  White  Paper’s  proposals,  and  in  some  cases  even  encourage  the 
Commission to advance broader proposals (for instance by loosening the conditions 
to obtain a disclosure order).  

Consumer Associations 

Consumer associations fully endorsed the White Paper’s proposals. They supported 
the White Paper’s objectives and suggestions and supported the idea of a legislative 
proposal  from  the  Commission.  In  some  cases,  they  even  encouraged  the 
Commission  to  do  more  in  order  to  set  up  a  truly  effective  framework  for  antitrust 
damages actions.  

Consumer  associations  identified  the  following  issues  as  main  obstacles  to  an 
effective  right  to  compensation  for  victims  of  antitrust  violations:  (i)  lack  of 
collective  redress  mechanisms  and  (ii)  difficulties  in  obtaining  disclosure  orders. 
Consumer  associations  argued  that  the  preservation  of  public  enforcement  (and 
leniency programmes in particular) does not justify a restriction on the rights of the 
victims and were against any form of limitation of liability for immunity recipients. 
They  largely  contested  the  need  for  protection  of  corporate  statements,  while 
claiming broader rules on access to the files of competition authorities. 

8. 

(a) 

9. 

10. 

11. 

(b) 

12. 

13. 

(c) 

Lawyers, Law firms and Bar associations 

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14. 

2.2.2. 

15. 

16. 

2.3. 

17. 

The  submissions  received  from  law  firms  and  lawyers’  associations  presented  a 
broad range of views, often influenced by the legal culture they come from and by 
whether  they  generally  represent  claimants  or  defendants.  As  a  general  trend,  there 
was  wide  agreement  on  the  need  to  establish  rules  on  the  protection  of  corporate 
statements.  Respondents  also  urged  the  Commission  to  exclude  from  disclosure 
documents covered by legal privilege. Apart from these issues, submissions from the 
legal community were very heterogeneous. 

Institutional stakeholders 
The Parliament10 welcomed the White Paper and stressed that EU competition rules 
and their enforcement require that victims of breaches of those rules should be able 
to  claim  compensation  for  the  damage  suffered.  It  also  stressed  that  individual 
consumers and small businesses are often deterred from bringing individual actions. 
In  particular  the  Parliament  stressed  the  "need  for  the  Commission  to  propose 
legislation, without watering it down unnecessarily, to facilitate individual and class-
action claims for effective compensation for damages resulting from breaches of EU 
antitrust law."11 
The  EESC12  also  welcomed  the  White  Paper  and  stressed  the  need  to  promote 
people's access to effective judicial protection as a fundamental right laid down in the 
European  Charter  of  Fundamental  Rights  ('the  Charter').  It  considered  that  a  legal 
framework was necessary and provided detailed comments on different aspects. 

Public consultation on the quantification of damages 

One  of  the  suggestions  made  in  the  White  Paper  was  to  "provide  pragmatic,  non-
binding assistance in the difficult task of quantifying damages in antitrust cases, both 
for the benefit of national courts and the parties."13 In 2009, an external study on the 
quantification of damages was prepared for the European Commission.14 The results 
of the Quantification Study were taken into account in the Draft Guidance Paper on 
the  quantification  of  damages  which  the  Commission  submitted  to  public 
consultation in 2011.15 This draft paper set out insights into a range of methods and 
techniques  used  to  quantify  harm  in  damages  actions  and  explains  strengths  and 
weaknesses of these methods.  

18. 

Institutional  and  other  stakeholders  generally  welcomed  the  idea  of  issuing  non-
binding  guidance  on  quantifying  harm  caused  by  antitrust  infringements.16  The 

10 

11 

12 

13 
14 

15 

16 

European Parliament resolution of 26 March 2009 on the White Paper on damages actions for breach of 
the  EC  antitrust  rules  (2008/2154(INI)):  http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-
//EP//TEXT+TA+P6-TA-2009-0187+0+DOC+XML+V0//EN.  
See  paragraph  15  of  the  European  Parliament  resolution  of  20  January  2011  on  the  Report  on 
Competition  Policy  2009  (http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-
TA-2011-0023&language=EN&ring=A7-2010-0374). 
Opinion of the EESC on the White Paper on damages actions for breach of the EC antitrust rules, OJ C 
228 22.9.2009, p. 40. 
2008 Staff Working Paper, paragraph 199. 
'Quantifying antitrust damages - Towards non-binding guidance for courts' ('the Quantification Study'). 
Page  numbers  quoted  in  this  report  refer  to  the  electronic  version  of  the  Quantification  Study: 
http://ec.europa.eu/competition/antitrust/actionsdamages/quantification_study.pdf. 
The  draft  Guidance  Paper  on  quantifying  harm  in  actions  for  damages  based  on  breaches  of  the  EU 
antitrust 
at 
2011) 
http://ec.europa.eu/competition/consultations/2011_actions_damages/draft_guidance_paper_en.pdf.  
The 
http://ec.europa.eu/competition/consultations/2011_actions_damages/index_en.html. 

submissions 

written 

found 

found 

(June 

rules 

can 

can 

37 

be 

be 

at 

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8 

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Commission  organised  two  workshops  on  the  topic  with  a  number  of  renowned 
economists17 and sought the advice of specialised judges from the Member States. 

Public consultation on a coherent approach to collective redress 

In response to the Parliament resolution on the White Paper calling for an integrated 
approach to collective redress, the Commission held in 2011 a public consultation on 
a coherent approach to collective redress in different areas of EU law.18 The purpose 
of this consultation was, inter alia, to identify common legal principles on collective 
redress in all areas of EU law and to examine how such common principles could fit 
into  the  EU  legal  system  and  into  the  legal  orders  of  the  Member  States.  The 
consultation  also  explored  in  which  areas  different  forms  of  collective  redress 
(injunctive  and/or  compensatory)  could  improve  the  enforcement  of  EU  legislation 
or the protection of victims' rights.  

The consultation attracted more than 300 replies from a wide range of stakeholders 
and  over  18,000  replies  from  citizens  supporting  the  position  of  consumer 
organisations.  15  Member  State  governments  replied,  of  which  1019  favoured  a 
binding  EU  instrument  on  collective  redress,  while  520  preferred  a  non-binding 
approach.  621  Member  States  supported  policy-specific  legislation  at  EU  level, 
explicitly  mentioning  competition  policy,  while  422  preferred  horizontal  initiatives. 
While  consumers  were  strongly  in  favour  of  binding  EU  measures  on  collective 
redress, the majority of businesses were opposed.  

Almost  all  stakeholders  agreed  with  the  following  basic  parameters  of  a  collective 
redress  system:  it  should  be  capable  of  (i)  effectively  resolving  a  multitude  of 
individual  claims  which  raise  the  same  or  common  issues  and  relate  to  a  single 
infringement  of  EU  law;  (ii)  delivering  legally  certain  and  fair  outcomes  within  a 
reasonable  timeframe,  while  respecting  the  rights  of  all  parties  involved;  and  (iii) 
providing  for  safeguards  against  abusive  litigation  and  avoiding  any  economic 
incentives to bring abusive claims. 

The public consutation showed that there is a consensus across all stakeholder groups 
that  private  collective  redress  and  enforcement  by  public  bodies  are  two  different 
instruments that pursue different objectives. Business tends to put greater emphasis 
on the role of public enforcement. Other stakeholder groups are generally of the view 
that  both  instruments  are  in  principle  equally  important  and  that  they  should  be 
independent and complementary mechanisms.  

Most stakeholders agree that in policy fields where public enforcement plays a major 
role  –  particularly  in  competition  –  specific  rules  are  required  to  ensure  a  smooth 
interplay  between  public  enforcement  and  private  collective  redress.  Many  replies 
mention rules on the binding effect of infringement decisions by national competition 
authorities for follow-on collective actions, limitation periods for bringing follow-on 

The  workshops  were  held  on  26  January  2010  and  on  27  September  2011.  The  contributions  can  be 
found at http://ec.europa.eu/competition/antitrust/actionsdamages/economist_workshop.html. 
For further information on the public consultation "Towards a coherent European approach to collective 
redress", see http://ec.europa.eu/competition/consultations/2011_collective_redress/index_en.html. 
Bulgaria, Denmark, Greece, Italy, Latvia, the Netherlands, Poland, Portugal, Sweden and the UK. 
Austria, the Czech Republic, France, Germany and Hungary. 
Bulgaria, Greece, Poland, Portugal, Sweden and the UK. 
Austria, the Czech Republic, Denmark and the Netherlands. 

2.4. 

19. 

20. 

21. 

22. 

23. 

17 

18 

19 
20 
21 
22 

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24. 

2.5. 

25. 

2.6. 

26. 

actions  and  protection  of  the  effectiveness  of  public  enforcement  (specifically 
leniency programmes). 
The  Parliament  resolution  on  collective  redress23  recognizes  the  importance  of 
collective  redress  in  ensuring  effective  compensation  for  victims  of  EU  law 
infringements. The resolution favours a separate horizontal EU framework including 
a  common  set  of  principles  over  a  sector-specific  approach  towards  collective 
redress.  Nevertheless,  the  resolution  acknowledges  that  there  can  be  a  need  for 
certain competition law specific provisions on collective redress, which could be laid 
down  in  a  separate  chapter  of  a  horizontal  instrument  or  in  a  separate  legal 
instrument.  

Inter-service consultation 

The Directorate-General for Competition is the lead service on the current Antitrust 
Damages  Initiative,  with  the  involvement  of  the  Secretariat-General,  the  Legal 
Service,  DG  Economic  and  Financial  Affairs,  DG  Enterprise  and  Industry,  DG 
Internal Market and Services, DG Health and Consumers and DG Justice. An Impact 
Assessment Inter-Service Group was set up on 26 September 2008. It met two times 
in  2008  to  discuss  earlier  drafts  of  the  Impact  Assessment  report  and  met  once  in 
2012  to  discuss  the  present  draft,  which  takes  account  of  the  additional  public 
consultations held in 2011, of the views expressed by the Parliament since 2008 and 
of recent developments at the European Courts. 

The Impact Assessment Board 

A draft of the present Impact Assessment  was  submitted  to  the  Impact  Assessment 
Board  on  21  November  2012.  Responding  to  the  resulting  recommendation  in  the 
Board's first opinion of 20 December 2012, a revised draft was submitted in January 
2013. The Board issued a second, positive opinion on the resubmitted report on 28 
February 2013, with further suggestions for improvement. The Board expressed the 
following main recommendations, which were considered in the present report: 

(1)  Better substantiate the problem definition; 

(2)  Report in more detail the stakeholder response to the public consultation on the 

White Paper; 

(3)  Clarify the objectives of the initiative; 

(4) 

Improve the presentation of the options; 

(5) 

Clarify the differences between Options 2 and 3; 

(6)  Better present the analysis of impacts and the comparison of options;  

(7)  Further define the monitoring criteria.  

For  (1),  the  first  part  of  the  Report  has  been  further  elaborated  to  provide  more 
concrete  evidence  of  the  problems  targeted.  Quantitative  data  from  an  external 
impact  study  on  compensation  foregone  by  victims  of  a  competition  law 
infringement  have  been  quoted.  The  interaction  between  public  and  private 
enforcement  has  been  further  clarified,  and  its  background  is  explained  in  three 

23 

European  Parliament  resolution  of  2  February  2012  on  'Towards  a  Coherent  European  Approach  to 
Collective Redress' (2011/2089(INI)): 

http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2012-21  

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annexes on the functioning of the leniency programmes, the Pfleiderer case-law and 
initiatives  currently  considered  at  Member  State's  level.  The  problem  has  further 
been  specified  by  increased  analysis  of  the  baseline  scenario  of  no  EU  action,  also 
through reference to Member States' legislation and the inefficiencies of the current 
legal  framework,  as  well  as  the  current  lack  of  comparably  efficient  alternatives  to 
leniency programmes in the detection of secret cartels. 

For (2), extensive reference has been made to stakeholders opinions throughout the 
document. A summary overview on the public consultation on the 2008 White Paper 
has also been added (Annex 8). 

For  (3),  the  formulation  of  the  objectives  has  been  made  more  clear.  All  the 
objectives  and  sub-objectives  are  currently  discussed  with  the  same  structure, 
including an introduction where detailed reference is made to the relevant sections of 
part  3,  to  allow  the  reader  to  clearly  link  the  targeted  objectives  to  the  problems 
addressed  by  the  initiative.  The  objective  of  fostering  full  compensation  while 
avoiding over-compensation has been clearly defined. 

For  (4),  the  assessed  Options  have  been  re-ordered  to  start  from  the  base-line 
scenario  of  zero  EU-Action  (Option  1),  and  then  the  different  forms  of  action 
proposed.  As  regards  collective  redress,  Option  2  builds  on  the  2008  White  Paper 
and  assesses  two  different  collective  redress  mechanisms  (opt-in  group  actions  and 
representative actions), whereas Option 3 and Option 4 are based on the assumption 
that collective redress is dealt at EU level in a horizontal framework that is yet to be 
determined.  Therefore,  the  current  impact  assessment  does  not  address  the  issue  of 
collective  redress  for  these  two  options.  The  assessment  of  the  role  of  collective 
redress  in  the  field  of  competition  law  enforcement  and  its  relationship  with  a 
possible  horizontal  initiative  on  collective  redress  is  separately  discussed  as  part  of 
the assessment of the Policy Options. 

For (5), the differences between Option 2 and 3 have been spelled out more clearly. 
In  particular,  the  Report  explains  why  certain  safeguards  or  additional  measures 
compared to the White Paper options have been assessed as a bundle in Option 3. 

For (6), the analysis of impacts has been explained in more detail. Options are also 
clearly and independently assessed against the base-line scenario. The pitfalls of the 
options  already  excluded  in  the  IAWP,  which  have  not  been  reconsidered  in  the 
current  exercise,  are  recalled  in  an  Annex,  which  details  the  risks  of  a  number  of 
solutions  chosen  in  other  jurisdictions  and  not  fully  in  line  with  European  legal 
traditions. In order to improve readability and comparison of the options, the scoring 
system has also been simplified. 

For (7) the chapter on monitoring and evaluation has been enriched with reference to 
more specific criteria to assess the progress achieved through the initiative.  

In  addition  to  the  above,  a  glossary  of  technical  terms  used  in  the  text  is  added  as 
Annex 7 to make the report more accessible to non-specialist readers.  

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3. 

27. 

3.1. 

28. 

29. 

30. 

PROBLEM TO BE ADDRESSED  

The Antitrust Damages Initiative adresses two key issues, namely (a) the interaction 
between  public  and  private  enforcement  of  the  EU  competition  rules  and  (b)  the 
difficulties for victims of competition law infringements to obtain compensation. In 
case  the  baseline  scenario  of  no  action  at  the  EU  level  is  followed  (see  further  the 
description of the baseline scenario or option 1 in section 5.3 below), the problems 
described in sections 3.1 until 3.3 will continue to exist or deteriorate, and the costs 
described in section 3.4 will be incurred.  

The interaction between public and private enforcement remains unclear under 
the current legal framework  

The EU competition rules are a matter of public policy. They are primarily enforced 
by  the  Commission  and  NCAs,  which  have  a  number  of  investigative  and 
enforcement  powers,  including  the  power  to  impose  fines  on  undertakings  for  the 
infringement  of  these  rules.24  This  type  of  enforcement,  which  is  exercised  by 
competition  authorities  in  the  public  interest,  is  generally  referred  to  as  "public 
enforcement".  In  addition,  the  EU  antitrust  rules  –  Articles  101  and  102  TFEU  – 
have  direct  effect,  which  means  that  they  create  rights  for  individuals  that  can  be 
enforced before national courts. This type of enforcement is generally referred to as 
'private  enforcement'.  Among  these  rights  is  the  EU  right  for  victims  of  an 
infringement  of  EU  competition  law  to  be  compensated  for  the  harm  they  have 
suffered. The means by which the right to compensation is put into practice are civil 
damages  actions  brought  before  national  courts.  Given  the  subject-matter  of  this 
initiative,  the  notion  of  private  enforcement  in  this  report  is  used  in  the  narrower 
sense of antitrust damages actions.  

The two kinds of procedures – private enforcement actions under national civil law 
and  public  enforcement  by  competition  authorities  –  are  complementary  tools 
serving the objective of an effective enforcement of the EU competition rules. There 
is  a  consensus  among  all  stakeholder  groups  that  responded  to  the  public 
consultations on the White Paper and on collective redress (consumers, business and 
business representatives, legal experts and public authorities such as Member States 
and  competition  authorities)  that  public  and  private  enforcement  are  two  different 
instruments  that  pursue  different  objectives.  All  stakeholder  groups  apart  from 
business  are  generally  of  the  view  that  both  instruments  are  in  principle  equally 
important and must hence be independent and complementary mechanisms. 

Given that antitrust damages actions are often triggered by a competition authority's 
investigation  and  are  brought  either  while  an  investigation  is  pending  or,  more 
typically, after an infringement decision had been adopted (in the latter case referred 
to as 'follow-on' actions), the interaction between public and private enforcement can 
be significant. A smooth interplay is vital to ensure maximum effectiveness of both 
tools.  This  can  be  best  achieved  by  regulating  certain  key  aspects  of  the  interplay, 
such  as  access  to  information  held  by  competition  authorities  (the  disclosure  of 
certain documents from the competition authorities's files could negatively affect the 
effectiveness  of  public  enforcement),  binding  effect  of  infringement  decisions  (to 

24 

The Commission has the powers foreseen in Regulation 1/2003 for the application of Articles 101 and 
102 TFEU. The NCAs have the powers foreseen in national law and may adopt the decisions listed in 
Article 5 of Regulation 1/2003. 

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12 

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avoid re-litigation of the finding of an infringement) or limitation periods (to ensure 
that  they  do  not  expire  while  potential  follow-on  claimants  are  waiting  for  an 
infringement  decision).  The  need  to  provide  for  rules  ensuring  a  smooth  interplay 
between  the  public  and  private  enforcement  of  competition  law  was  confirmed  by 
most stakeholders responding to the public consultation on collective redress.25  

Stakeholders  generally  regard  the  need  to  regulate  the  public/private  interface  as 
particularly acute in the case of documents linked to leniency programmes.26 In the 
public  consultations  on  the  White  Paper  and  on  collective  redress,  business 
representatives, legal experts and public authorities warned against undue disclosure 
of  leniency  related  documents  for  the  purpose  of  antitrust  damages  actions.  They 
held in particular that the protection of corporate statements is an essential condition 
for  the  success  of  leniency  programmes.  Only  a  few  submissions  (mainly  by 
consumer associations) contested the need to protect leniency corporate statements.  

The Pfleiderer judgment 

In June 2011, the Court held in Pfleiderer that – in the absence of EU law – it is for a 
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.27  Therefore,  leniency 
applicants  cannot  know  in  advance  whether  documents  submitted  to  competition 
authorities in the context of a leniency application might be disclosed to claimants in 
antitrust  damages  actions  and  if  so,  what  categories  of  documents  would  be 
disclosable. Although one cannot bring direct evidence that the Pfleiderer judgment 
has had or will have a negative impact on the number of leniency applications (as it 
is  impossible  to  know  how  many  leniency  applications  would  have  been  received 
without  the  judgment),  the  current  legal  uncertainty  could  affect  the  willingness  of 
cartel  participants  to cooperate  with the Commission  and  NCAs under the  leniency 
programmes and thus negatively affect the public enforcement of competition law.28 
More  generally,  the  lack  of  legal  certainty  as  to  the  (non-)disclosability  in  antitrust 
damages  actions  of  leniency-related  documents  and  other  information  from 
competition  authorities'  files  is  detrimental  for  all  involved  parties,  including 
claimants and the competition authorities. 

It should be noted that in Pfleiderer the Court reached its conclusion on the case-by-
case  application  of  divergent  national  laws  "in  the  absence  of  binding  regulation 
under European Union law on the subject", i.e. in the absence of any "common rules 
on  leniency  or  common  rules  on  the  right  of  access  to  documents  relating  to  a 
leniency  procedure".29  A  common  EU  standard  providing  for  an  appropriate 
protection  of  leniency  documents  would  remove  both  the  uncertainty  for  potential 
leniency applicants and the diversity of national rules on the subject. NCAs agree to 
this  solution  and  they  have  therefore  been  urging  the  Commission  to  introduce 

See para 0 above. 
See  Annex  1  for  a  more  detailed  description  of  the  functioning  of  the  Commission’s  leniency 
programme. 
See Annex 2 for a more detailed description of the Pfleiderer case.  
Case  C-360/09,  Pfleiderer  AG  v  Bundeskartellamt,  [2011]  ECR  I-5161,  20-23:  "the  view  can 
reasonably be taken that [cartel participants] would be deterred from taking the opportunity offered by 
such leniency programmes, particularly when, pursuant to Articles 11 and 12 of Regulation 1/2003, the 
Commission and the national competition authorities might exchange information which that person has 
voluntarily provided".  
Ibidem 

31. 

32. 

33. 

25 
26 

27 
28 

29 

EN 

13 

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without delay an EU rule that would protect their leniency programmes. The Heads 
of  the  European  Competition  Authorities  have  repeated  this  message  in  a  recent 
resolution.30  Also  European  businesses  have  called  for  such  a  rule  to  ensure  legal 
certainty in this regard.  

Legal uncertainty and risks for public enforcement 

Under  the  baseline  scenario  of  no  EU  action,  the  legal  uncertainty  and  the  risk  of 
negative  consequences  on  the  public  enforcement  of  EU  competition  law  would 
continue to exist. This is due to the persisting risk of diverging or inconsistent court 
practice  between  different  Member  States  or  even  within  the  same  Member  State 
with  regard  to  disclosability  of  leniency  related  documents  from  the  file  of 
competition authorities. Such divergence in national judgments is already visible to 
date: whereas in Germany the first instance court protected in Pfleiderer all leniency 
documents from disclosure31, the Düsseldorf Appeal Court32, in a different case, was 
not ready to protect the information contained in leniency documents in so far as that 
information was referred to in the infringement decision. In the UK, the High Court 
in the National Grid case found that partial disclosure of certain documents (such as 
a  reply  to  the  Statement  of  Objections  and  replies  to  Requests  for  Information)  is 
justified and some parts of the confidential verions of the Commission decision are to 
be  disclosed,  whereas  documents  specifically  prepared  for  the  purpose  of  the 
Commission's leniency programme should not be disclosed.33 If more national courts 
are  required  to  make  the  case-by-case  assessment  as  described  in  Pfleiderer,  the 
likelihood of diverging rulings on the disclosability of documents from the file of a 
competition  authoritity  increases.  As  stated  in  paragraph  33  above,  a  common  EU 
standard  providing  for  an  appropriate  protection  of  such  documents  would  remove 
both  the  uncertainty  for  undertakings  potentially  involved  in  proceedings  before 
competition  authorities  and  the  diversity  of  judgments  by  national  courts  on  the 
subject. 

impaired 

leniency  programmes  by 

In  the  absence  of  adequate  protection  of  leniency  programmes,  the  negative 
consequences  arising  from  the  uncertain  legal  framework  outlined  above  cannot  be 
offset  by  efficient  alternatives.  In  particular,  it  would  not  be  possible  to  offset  the 
negative  effects  of 
increased  ex-officio 
investigations  into  suspected  infringements  by  the  Commission  or  NCAs.  Such  an 
attempt  would  not  only  be  more  costly  both  for  public  enforcers  and  undertakings 
alike, but would not enable public enforcers to uncover comparably useful evidence 
with a view at proving infringements. On the one hand, leniency programmes allow 
the Commission and NCAs to pursue a targeted enforcement on conducts where the 
likelihood to find an infringement is much higher, and free resources for the pursuit 
of ex officio cases while maintaining an adequate degree of deterrence. On the other 
hand,  divesting  resources  from  leniency  cases  in  order  to  pursue  more  ex  officio 
cases would impose a significant administrative burden on businesses, as there would 
be a higher chance of being subject to an investigation while no infringement is later 

in 

leniency  material 

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. 
Amtsgericht Bonn (Local Court Bonn), decision of 18-January-2012, case No 51 Gs 53/09 (Pfleiderer).  
Oberlandesgericht  Düsseldorf  (Düsseldorf  Appeal  Court),  decision  of  22  August  2012,  case  No  B-4 
Kart 5/11 (OWi) (roasted coffee). 
High  Court  of  Justice  (UK  first  instance  court),  judgment  of  04  April  2012,  case  No  HC08C03243 
(National Grid). 

34. 

35. 

30 

31 
32 

33 

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14 

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found. Moreover, because of the higher costs and administrative burdens of ex officio 
cases,  in  the  absence  of  cooperation  from  leniency  applicants  and  of  the  targeted 
evidence they provide, the number of secret cartels uncovered would be significantly 
lower.  

Other issues in the interaction between public and private enforcement 

Apart  from  leniency  programmes,  the  regulation  of  access  to  information  held  by 
competition authorities is also needed to safeguard the effectiveness of other public 
enforcement  tools.  As  stakeholders  to  the  public  consultations  on  the  White  Paper 
and  on  collective  redress  confirmed,  the  importance  of  ensuring  the  willingness  on 
the  part  of  undertakings  to  produce  voluntary  statements  acknowledging  their 
participation  in  an  infringement  is  equally  relevant  in  the  context  of  a  a  settlement 
procedure; therefore, settlement submissions need to be protected in the same way as 
corporate statements that are made for the purpose of leniency programmes.  

Moreover, to ensure that disclosure of information does not unduly interfere with an 
ongoing investigation, it is appropriate to allow the disclosure of documents prepared 
specifically  for  the  purpose  of  such  investigation  only  after  the  investigation  by  a 
competition  authority  has  been  closed.  By  protecting  the  effectiveness  of  public 
enforcement  in  this  way,  the  effectiveness  of  private  damages  actions  is  also 
strengthened,  given  that  the  majority  of  these  are  follow-on  actions  relying  on  an 
infringement finding by a competition authority. 

The  current  legal  framework  for  damages  actions  in  cases  of  competition  law 
infringements  is  ineffective  as  victims  experience  major  difficulties  to  obtain 
compensation 

To date, citizens and businesses encounter difficulties in obtaining compensation for 
the harm they have suffered because of an infringement of the EU competition rules. 
Stakeholders  have  identified  the  following  main  obstacles  standing  in  the  way  of 
obtaining  compensation  more  effectively:  difficult  access  to  the  evidence  that  is 
necessary  for  proving  a  case,  absence  of  effective  collective  redress  mechanisms, 
lack  of  clear  rules  on  the  passing-on  defence  (i.e.  a  defence  against  a  direct 
purchaser's  damages  claim,  relying  on  evidence  showing  that  the  overcharge 
resulting from a cartel was passed on – fully or partially - by the direct purchaser to 
its  own  customers  further  down  the  distribution  chain),  no  uniform  rules  on  the 
binding effect of infringement decisions adopted by an NCA, legal uncertainty about 
limitation periods, the calculation of damages and the rules concerning the costs of a 
damages action.34  

As  a  consequence,  a  large  number  of  victims  of  infringements  of  competition  law 
remain uncompensated and see their right to damages under EU law frustrated. There 
is  therefore  a  clear  deficit  in  terms  of  compensatory  justice.  This  is  difficult  to 
reconcile with the fundamental right to access to effective judicial protection.35 The 
divergence in national legislation may also affect the decision of undertakings to use 
the freedom of establishment, the free movement of goods or the freedom to provide 

For details on each of these issues, see paragraph 2 of the White Paper and paragraph 51 of the IAWP.  
Article 47, first paragraph of the Charter: "Everyone whose rights and freedoms guaranteed by the law 
of the Union are violated has the right to an effective remedy before a tribunal in compliance with the 
conditions laid down in this Article." and Article 19(1), second subparapgraph, TEU: "Member States 
shall  provide  remedies  sufficient  to  ensure  effective  legal  protection  in  the  fields  covered  by  Union 
law." 

36. 

37. 

3.2. 

38. 

39. 

34 
35 

EN 

15 

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40. 

services,  avoiding  those  Member  States  where  the  right  to  compensation  is  most 
effectively enforced.  

Furthermore, the Comparative Study on the conditions of damages claims has shown 
that the differences between national legal systems cause legal uncertainty at several 
levels. For a number of important legal issues, e.g. the availability of the 'passing-on 
defence',36  existing  national  law  is  unclear  about  which  rule  applies  in  the  specific 
context  of  antitrust  damages  cases.  Additional  legal  uncertainty  stems  from  the 
significant  differences  between  the  procedural  and  substantive  rules  governing 
actions  for  damages  in  the  different  Member  States  (e.g.  with  regard  to  access  to 
evidence,  limitation  periods  and  the  binding  effect  of  NCA  decisions).  These  are 
described in the 2004 Comparative Study on the conditions of damages claims and in 
the  2008  Commission  White  Paper  on  antitrust  damages  actions  and 
its 
accompanying Impact Assessment.37  

41. 

The  marked  differences  (described  as  "astonishing  diversity" 
the  2004 
Comparative  Study)38  continue  to  exist  in  relation  to  many  of  the  topics  to  be 
adressed in this policy initiative: 

in 

• 

• 

• 

As regards the binding effect of an NCA's finding of an EU competition law 
infringement  on  national  courts  in  a  subsequent  antitrust  damages  action, 
legislation in only one Member State (Germany) recognises the binding effect 
of final NCA decisions of both the domestic and other European NCAs. In 10 
other Member States only the final decision of the domestic NCA is binding on 
national  courts.  In  the  remaining  16  Member  States,  NCA  decisions  have  no 
binding  effect.  In  those  Member  States  their  evidential  value  ranges  from  a 
rebuttable  evidentiary  presumption  of  an  infringement  to  normal  evidential 
value or even to being regarded as just a view on the facts and the law.  

As  regards  the  limitation  period  for  bringing  an  antitrust  damages  action, 
some  Member  States  provide  for  specific  limitation  periods  allowing  for 
follow-on cases. In the vast majority of Member States, however, there are no 
specific  rules  on  limitation  periods  for  follow-on  cases.  In  these  Member 
States, expiry of the ordinary limitation period before a competition authority 
renders  an  infringement  decision  can  form  an  important  obstacle  preventing 
follow-on action from being instituted. The specific limitation periods in some 
Member  States  are  either  based  on  a  suspension  of  the  ordinary  limitation 
period  during  an  investigation  by  the  authorities,  in  combination  with  an 
ensured  time  period  to  bring  an  action  after  the  suspension  finishes  or  a 
specific  limitation  period  for  follow-on  cases.  The  length  of  these  limitation 
periods differs from 6 months to 5 years.  

As to the passing-on defence, it should be noted that in most Member States 
there is no legislative provision or case-law on the topic. It is therefore yet to 
be  established  if  and  under  which  conditions  the  passing-on  defence  is 
available. In those few Member States where the legislator or the judiciary has 
pronounced  on  the  passing-on  defence,  judgments  vary  between  explicit 
acceptance  and  explicit  prohibition  of  the  defence.  In  those  Member  States 

36 
37 

38 

See Comparative Study, pp. 1-78 to 1-80, 1-111 to 1-112 and 1-127 to 1-129. 
See Comparative Study, pp. 1-26 to 1-102; White Paper, section 1 and para. 2.2 (access to evidence), 
2.3 (binding effect of NCA decisions) and 2.7 (limitation periods); and IAWP, section 2.1. 
See Comparative Study, Executive Summary, para. I. Introduction, p. 1. 

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16 

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where it is allowed, the burden of proving the defence varies. On one side of 
the  spectrum,  there  are  Member  States  (such  as  France)  where  passing-on  of 
overcharge  from  the  direct  to  the  indirect  purchasers  is  presumed  to  be  a 
common  commercial  practice  and  where,  as  a  consequence,  the  direct 
purchasers will have to prove that no passing-on has taken place.39 On the other 
side of the spectrum there are Member States such as Germany, that allow the 
passing-on defence only under specific conditions and in case the defence does 
not lead to an unjust benefit for the defendant.40 

• 

Finally,  as  regards  disclosure  of  evidence,  the  overwhelming  majority  of 
Member  States'  legal  systems  provide  for  some  form  of  disclosure,  varying 
between  a  system  whereby  the  required  documents  have  to  be  precisely 
described (such as Germany) to one which allows for the disclosure of classes 
of  documents  (such  as  the  UK).  Some  Member  States  also  limit  the 
possibilities to request disclosure to parties to the proceedings, excluding third 
parties, or require separate proceedings. 

The described differences have even increased since 2004. While the rules applicable 
to  antitrust  damages  actions  have  not  changed  in  the  majority  of  Member  States,  a 
few Member States have adopted amendments, such as the 2007 amendment to the 
Danish  Competition  Act,  including  a  new  statute  of  limitation  periods  for  antitrust 
damages  claims;  the  2008  amendment  to  the  Hungarian  Competition  Act, 
introducing a rebuttable presumption that a hard-core cartel has caused a 10% price 
increase on the market; or the 2008 amendment to Bulgaria's Law on the Protection 
of  Competition,  making  final  infringement  decisions  by  NCAs  binding  on  national 
courts in private actions.  

In  addition,  proposals  to  modify  some  of  the  national  rules  on  antitrust  damages 
actions are currently pending in Austria, Germany and the UK. As regards the topics 
covered by the current policy initiative, the Austrian proposal contains rules on the 
binding  effect  of  NCA  decisions  and  on  the  suspension  of  the  limitation  period 
during an investigation of the competition authorities. The German proposal does not 
directly concern any of the topics of the policy initiative. As regards the interaction 
of  the  public  and  private  enforcement  of  competition  law,  the  UK  Government 
decided not to intervene because it expects measures to be adopted on this issue at 
the  EU  level.  An  overview  of  the  main  features  of  the  Austrian,  German  and  UK 
proposals are contained in Annex 3.  

This  diversity  and  legal  uncertainty  leads  to  ineffective  enforcement  of  the 
competition  rules.  The  diversity  in  the  legal  systems  is  not  only  a  problem  for 
victims.  Also  defendants  may  suffer  disadvantages in terms of  imponderability  and 
costs, mainly because they risk being sued for damages in different Member States or 
in the  Member State  where the substantive or procedural rules are most favourable 
for claimants, which is not necessarily their place of establishment (but for example 
the domicile of a co-infringer).41 For these reasons, a more level playing field is in 
the interest of both potential victims and potential defendants.  

42. 

43. 

44. 

39 

40 

41 

Cour  de  Cassation  (French  Court  of  Cassation),  judgment  of  15  May  2012,  case  No  11-18495, 
(Synthetic lysine cartel - Ajinomoto Eurolysine case). 
Bundesgerichtshof (German Supreme Court for Civil Matters), judgment of 28 June 2011 case No KZR 
75/10(Carbonless paper cartel). 
See Article 2 of Regulation 44/2001 and Article 6(3)(b) of Regulation 864/2007. 

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17 

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45. 

46. 

47. 

48. 

3.3. 

49. 

50. 

42 

The  above  factors,  combined  with  the  fact  that  antitrust  cases,  by  nature,  often 
require  an  unusually  high  level  of  very  costly  factual  and  economic  analysis  and 
present  specific  difficulties  for  claimants  regarding  access  to  crucial  pieces  of 
evidence that are often kept secret in the hands of the defendants, deter many victims 
from bringing actions as they consider the risk/reward balance to be negative.42 

In that context, many stakeholders (both in response to the public consultation on the 
White  Paper  and  in  response  to  the  2011  public  consultation  on  collective  redress) 
have – besides remedying the obstacles to effective private enforcement as identified 
above – insisted on the importance of encouraging consensual dispute resolution 
mechanisms. 

If the baseline scenario of no EU action applies, this situation would not change. The 
diversity between the rules applicable to actions for damages in the Member States as 
described above would persist and even increase should some Member States adopt 
new legislation. Due to the continued existence of important obstacles which prevent 
victims of EU competition law infringements from obtaining full compensation, the 
current  situation  of  undercompensation  of  victims  and  their  problematic  access  to 
justice would equally persist. Since the situation has not significantly changed since 
the adoption of the Green Paper in 2005, there is no reason to believe that – in the 
absence of any EU action in the field – significant improvements will be made.  

In  the  baseline  scenario,  undercompensation  of  victims  of  EU  competition  law 
infringements  is  the  main  problem.  Risks  of  overcompensation  have  not  been 
observed  in  any  EU  Member  State.  Despite  this,  stakeholders  from  the  business 
community  responding  to  public  consultations  contended  that  an  EU  initiative  on 
actions  for  damages  may  lead  to  a  risk  of  unmeritorious  or  abusive  litigation  or 
overcompensation. Any initiative to facilitate actions for damages should contain the 
necessary safeguards to avoid such undesirable side effects. 

The  current  legal  framework  could  endanger  the  proper  functioning  of  the 
internal market 

The EU competition rules are a matter of public policy, which lie at the heart of the 
functioning  of  the  internal  market.43  Shortcomings  in  the  effective  enforcement  of 
Articles  101  and  102  hinder  not  only  the  achievement  of  the  goals  of  workable 
competition,  such  as  better  allocation  of  resources,  greater  economic  efficiency, 
increased  innovation  and  lower  prices.  They  also  have  a  direct  impact  on  the 
functioning  of  the  internal  market,  which  relies  on  a  system  of  undistorted 
competition.  In  this  context,  Article  3(3)  of  the  Treaty  on  European  Union  ('TEU') 
provides  that  the  internal  market  shall  be  based  on  "a  highly  competitive  social 
market economy".  

Sections  3.1  and  3.2  explain  that  overall  effective  enforcement  of  EU  competition 
law  consists  of  its  effective  public  and  its  effective  private  enforcement.  It  is 

See the external Impact Study of 21 December 2007, 'Making antitrust damages actions more effective 
in the EU: welfare impact and potential scenarios' ('the Impact Study', available at 

http://ec.europa.eu/comm/competition/antitrust/actionsdamages/files_white_paper/impact_study.pdf),  Part 

II, 
section 1.1 for a general model of incentives to sue and section 3.2 for the specific issue of access to 
evidence. Deficits regarding reparation of harm resulting from an infringement of directly effective EU 
rules  may  also  exist  in  other  areas  of  law.  In  the  field  of  competition,  however,  the  size  of  the 
uncompensated harm and the problems encountered are particularly big. 
Protocol Nr 27 on competition and internal market, Case C-126/97, Eco Suisse, [1999] ECR I-3055, 36, 
and joined cases C-295/04 to C-298/04, Manfredi, [2006] ECR I-6619, 31. 

43 

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18 

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51. 

52. 

furthermore explained why private enforcement of competition law is currently not 
effective and how certain aspects of the private enforcement of competition law risk 
negatively  affecting  the  effective  functioning  of  public  enforcement.  As  set  out  in 
section  3.2,  the  marked  differences  between  Member  States  regarding  the  rules 
governing  actions  for  damages  concerning  infringements  of  national  or  EU 
competition law that were already described in the 2004 Comparative Study, in the 
2008 White Paper and its accompanying Impact Assessment have further increased 
due to developments in legislation and jurisprudence in a limited number of Member 
States, as opposed to the lack of developments in other Member States.  

The  primary  example  of  divergence,  also  with  an  impact  on  the  functioning  of  the 
internal  market,  is  given  by  the  different  national  rules  applying  to  access  to 
evidence.  With  the  exception  of  a  few  Member  States  (most  notably  the  UK),  the 
lack of adequate rules on inter partes disclosure of evidence in court means that there 
is  no  effective  access  to  evidence  for  victims  of  a  competition  law  infringement 
seeking  antitrust  damages.  Also  the  differences  concerning  access  to  information 
held by competition authorities are significant (e.g., in Austria such information is in 
practice entirely exempted from access). Other examples concern rules on passing-on 
(differences having major implications for the ability of direct/indirect purchasers to 
claim  damages  effectively  and,  in  turn,  for  the  defendant's  chances  of  avoiding  the 
obligation  to  compensate  for  harm  caused),  the  binding  effect  of  NCA  decisions 
(only  Germany  acknowledges  the  binding  effect  of  infringement  decisions  by  the 
NCAs  from  all  Member  States),  or  on  issues  relevant  for  the  quantification  of 
antitrust harm (e.g. the existence of a rebuttable presumption of harm, or the power 
of judges to estimate the amount of damages). 
The fact alone that, according to the Commission's knowledge,44 the vast majority of 
large  antitrust  damages  actions  are  currently  being  brought  in  3  European 
jurisdictions  –  namely  in  the  UK,  followed  by  Germany  and  the  Netherlands  – 
indicates  that  the  rules  applicable  in  these  Member  States  are  considered  by 
claimants to be much more suitable for effectively bringing such claims than in other 
Member States. Out of the 54 final cartel and antitrust prohibition decisions taken by 
the  Commission  in  the  period  2006-2012,  only  15  were  followed  by  one  or  more 
follow-on actions for damages in one or more Member States. In total, 52 actions for 
damages were brought in only 7 Member States. In the 20 other Member States, the 
Commission  is  not  aware  of  any  follow-on  action  for  damages  based  on  a 
Commission  decision.  Among  those  7  Member  States  where  actions  were  brought, 
the vast majority was brought in the 3 above mentioned Member States. The relative 
preference  for  a  legal  system  in  order  to  bring  an  action,  or  the  relatively  higher 
likelyhood of victims of competition law infringements to claim compensation in the 
UK,  Germany  and  the  Netherlands  depend  on  more  effective  procedural  rules  for 
antitrust damages actions. Thus, successful measures from these jurisdictions such as 
the  binding  effect  of  NCA  decisions  or  mechanisms  for  evidence  disclosure  are 
included in the options considered in the present report.45  

53. 

These  differences  lead  to  inequalities  and  uncertainty  concerning  the  conditions 
under which injured parties can exercise the right to compensation deriving from the 

44 

45 

The figures contained in this paragraph are based on evidence gathered by the Commission services. As 
there  is  no  reliable  complete  overview  available  nor  does  a  public  register  of  actions  for  damages 
brought in national courts exist, thess data can only be taken as a rough indicator.  
See Section 5.3. 

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19 

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54. 

55. 

Treaty  and  may  affect  the  substantive  effectiveness  of  this  right.  As  injured  parties 
often  choose  the  forum  of  their  Member  State  of  establishment  to  claim  damages 
(one reason being that consumers and smaller businesses cannot afford to choose a 
possibly  more  favourable  jurisdiction  of  another  Member  State),  the  discrepancies 
between the rules of the different Member States risk leading to an uneven playing 
field as  regards actions for damages and may affect competition on the markets on 
which these injured parties operate. The existence of this risk is, by way of example, 
demonstrated by the fact that the vast majority of the 52 known actions for damages 
following  a  Commission  decision  in  the  field  of  competition  are  brought  by  large 
undertakings. 

Similarly,  these  differences  in  applicable  rules  mean  that  undertakings  established 
and operating in  different Member States are exposed to significantly different 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  some 
undertakings  that  breached  Articles  101  or  102  TFEU,  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 competition and risk to appreciably distort the proper functioning of 
the internal market. 

It is necessary to ensure a more level playing field for undertakings operating in the 
internal  market  and  to  improve  the  conditions  for  injured  parties,  in  particular 
citizens and small businesses, to make use of the rights they derive from the internal 
market. This more level playing field will not be realised when applying the baseline 
scenario  of  no  EU  action  in  the  field,  as  explained  in  section  3.2.  It  is  therefore 
appropriate  to  increase  legal  certainty  and  to  reduce  the  differences  that  exist 
between the Member States as to the national rules governing actions for damages by 
harmonising  certain  relevant  key  rules  applicable  to  actions  for  damages  such  as 
access  to  evidence,  passing-on  and  the  bindig  effect  of  NCA  decisions.  These 
measures  would  avoid  divergence  of  applicable  rules,  which  risks  to  appreciably 
distort the proper functioning of the internal market. 

3.4. 

56. 

Scope and costs of the uncertainty relating to the interaction between public and 
private  enforcement  and  the  ineffectiveness  of  the  legal  framework  for  actions 
for damages 

The scope of both the problem of the uncertainty relating to the interaction between 
public  and  private  enforcement  of  competition  law  and  the  problem  of  the 
ineffectiveness of the legal framework for actions for damages is considerable.  

3.4.1. 

Scope and cost: ill-regulated interface between public and private enforcement 

57. 

The potential effect on public enforcement (ongoing as well as future investigations) 
applies  in  all  Member  States:  the  Commission  as  well  as  all  Member  States46  have 
cartel  leniency  programmes,  which  have  proven  to  be  of  great  importance  in  the 
detection and prosecution of cartels. Leniency programmes grant immunity from and 
reduction  of  fines  to  those  cartel  participants  who  actively  cooperate  with  the 

46 

All EU Member states already have a working leniency program, with the exception of Malta which is 
currently implementing one. 

EN 

20 

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competition authority.47 Because of the secret nature of cartels, the vast majority of 
cartels  is  discovered  on  the  basis  of  a  leniency  application  of  one  of  the  cartel 
participants. As regards Commission cases, when looking at the period 2008 to 2011, 
21 out of 24 decisions (i.e. 88% of decisions) were based on leniency applications. In 
these years, a total amount of fines of €7,3 billion was imposed on cartel infringers, 
of  which  around  83%  was  imposed  in  cases  based  on  leniency  applications.  When 
looking at the NCAs represented in the ECN, in 2010 18 out of 30 and in 2011 13 out 
of  21  cartel  decisions,  imposing  a  significant  amount  of  fines,  were  based  on 
leniency applications.48 

The uncertainty concerning the interface between public and private enforcement has 
been  revealed  quite  recently,  through  the  2011  judgment  of  the  Court  in  the 
Pfleiderer  case,  and  in  its  various  offsprings  at  national  level.  If  the  EU  legislator 
were  not  to  act  on  this  problem,  substantial  problems  for  the  public  cartel 
enforcement could ensue. Fewer leniency applications would mean more undetected 
cartel activity and would lead to a welfare loss across the EU.  

The  importance  of  settlements  in  cartel  cases  is  also  increasing.  From  June  2008 
(introduction of the Settlement Notice) until 2011, 5 cartel cases have been settled. In 
broadly the same period (2008-2011) the Commission took 24 cartel decisions.  

If the baseline option of no EU action in the field would be followed, there is a risk 
that less leniency applications are submitted and less cartels are thus discovered and 
fined.  Equally,  undertakings  may  be  less  willing  to  cooperate  with  the  competition 
authorities in settlement procedures. If these negative effects materialize, this would 
lead to a lower discovery rate for of EU competition law infringements, less effective 
public  enforcement  and,  overall,  less  cases  being  dealt  with.  The  effectiveness  of 
public  enforcement  of  EU  competition  law  would  thus  be  at  stake,  with  a  negative 
knock-on effect on private enforcement by further reducing the possibilities for and 
the likelihood of follow-on actions for damages. 

58. 

59. 

60. 

3.4.2. 

Scope and cost: ineffective legal framework for compensation 

61. 

62. 

47 

48 
49 

As  to  the  second  problem,  the  ineffectiveness  of  the  legal  framework  for  antitrust 
damages actions is observed in every Member State, although to differing degrees as 
the  applicable  national  rules  differ  significantly.  Infringements  of  competition  law, 
be  they  hardcore  cartels,  other  infringements  of  Article  101  TFEU  or  abuses  under 
Article 102  TFEU,  occur  in  almost  every  sector  of  the  economy.49  The  problem 
concerns  both  actions  for  damages  brought  following  a  decision  by  a  competition 
authority and actions brought on a stand-alone basis.  

The  lack  of  an  effective  compensation  mechanism  means  that  the  costs  of 
competition law infringements are currently borne by the victims: in the case of harm 
in the form of a price overcharge, this means that there is a direct transfer of money 
to the infringers, which they would keep if they do not have to compensate the harm 
caused  by  the  infringement.  In  case  of  a  loss  of  profit  because  of  the  infringement 
(for instance in the case of a competitor illegally foreclosed from a market), the law-
abiding undertaking – to which no compensation is paid – has to bear the price of the 

See  Annex  1  for  a  more  detailed  description  of  the  functioning  of  the  Commission’s  leniency 
programme. 
These numbers are based on the cases reported to the Commission, or published by NCAs or the press. 
See, 
http://ec.europa.eu/competition/publications/annual_report/index.html. 

the  Commission’s  Annual  Reports 

on  Competition  Policy 

instance, 

for 

at: 

EN 

21 

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infringement while the infringer benefits from his illegal act. While fines imposed by 
competition can serve as a deterrent for infringements, they cannot alter these effects. 
In the baseline scenario of no EU action, these problems would persist. 

The  ineffective  legal  framework  especially  affects  SMEs  and  large  groups  of 
consumers: as they are often at the end of the distribution chain, they face particular 
difficulties  in  identifying  and  proving  the  harm  they  suffered  (causal  link  and 
quantum). They often perceive the uncertainties, risks and costs of a damages action 
as disproportionate to potential benefits.50  

Even  though  the  absence  of  reliable  empirical  data  makes  precise  quantification 
impossible,  there  is  general  agreement  that  infringements  of  competition  law  cause 
substantial  harm  to  consumers  and  undertakings.  Looking  alone  at  hardcore  cartels 
with effects across the EU,51 the Impact Study estimates that the annual direct cost to 
consumers  and  other  victims  in  the  EU  ranges  from  approximately  €13  billion  (on 
least conservative).52 
the most conservative assumptions) to over €37 billion (on the 
This  estimate  comprises  both  the  harm  resulting  from  consumers  and  other  victims 
having  to  pay  a  higher  price  due  to  the  illegal  conduct  of  the  cartelists  (the 
“overcharge”)  and  also  the  economic  benefits  forgone  by  consumers  and  other 
victims who do not purchase, or purchase a smaller quantity, due to the unlawfully 
inflated price (the “deadweight loss”). It therefore covers the direct costs of cartels to 
consumers  and  other victims. It  takes no account  of  more  indirect  macro-economic 
effects, such as the absence of greater allocative, productive and dynamic efficiency, 
which contribute to growth and employment, but are extremely difficult to estimate.  

If one adds to the figures on EU-wide cartels the annual cost to consumers and other 
victims of domestic hardcore cartels, the total annual cost for hardcore cartels in the 
EU  can  be  estimated  to  range  from  approximately  €25  billion  (on  the  most 
conservative assumptions) to approximately €69 billion (on the least conservative). 53 
Expressed as a proportion of the EU’s gross domestic product, the negative consumer 
welfare  impact  of  all  these  hardcore  cartels  is  estimated  as  ranging  from  0.20%  to 
0.55%  of  the  EU’s  GDP  in  2011,54  which  does  not  include  the  harm  caused  by 
abusive practices and infringements of Article 101 TFEU other than hardcore cartels. 
More  effective  redress  would  lead  to  a  larger  percentage  of  this  harm  being 

See Impact Study, Part III, section 2.1. 
Hardcore cartels are agreements between competitors to fix prices or allocate markets. The estimates do 
not cover other infringements of Article 101 such as vertical restraints nor abuses under Article 102.  
This  estimate  is  based  on  the  total  amount  of  fines  imposed  by  the  European  Commission  on  cartels 
(annual  average  for  the  period  2002  to  2007)  and  the  finding  that,  on  average,  the  total  overcharge 
applied by  these  cartels  is  approximately  50%  of  the  fine.  Assuming  a  given  detection  rate  of  cartels 
(10%  on  the  least  conservative  assumptions  and  20%  on  the  most  conservative),  the  total  overcharge 
applied by undetected EU-wide cartels can be calculated. Another constituent of harm to consumers is 
the “deadweight loss”. Assuming a set relation to the overcharge applied (50% on the least conservative 
assumptions and 10% on the most conservative), the total deadweight loss is calculated and then added 
to the total overcharge in detected and undetected cartels. For further explanations of the method and 
for  data  underlying  these  assumptions  plus  extensive  references  to  research  in  this  area,  see  Impact 
Study, Part I, section 3.1.2. 
This estimate is based on the figures for (at least) EU-wide cartels, and on the assumption that domestic 
cartels imply harm to consumers equivalent to 88.4% of the harm resulting from EU-wide cartels; for 
details on the methodology and underlying assumptions, see Impact Study, Part I, section 3.2.1.  
See for these estimates and the underlying analysis Impact Study, Part I, section 3.2.1 (Table 10). See 
for 2011 GDP figures: http://www.economic-growth.eu/English/updated_data/data2011.html.  

63. 

64. 

65. 

50 
51 

52 

53 

54 

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66. 

67. 

68. 

55 
56 
57 
58 

59 
60 
61 

compensated  to  the  victims,  whereas  application  of  the  baseline  scenario  would  at 
best lead to a continuation of the current situation.  

However, even in the most effective system of private enforcement, not all the harm 
to consumers and other victims reflected in the above estimates will be compensated. 
This  is,  amongst  others,  because  a  considerable  number  of  antitrust  infringements 
will remain undetected. For hardcore cartels, the detection rate is generally assumed 
to  be  somewhere  between  10%  and  20%.55  For  other  infringements,  the  detection 
rate is higher, but the 'conviction' rate (i.e. the rate of successful damages actions) is 
likely to be much lower, since claimants often find it very difficult to produce proof 
that the contested conduct produced actual anti-competitive effects.56 It also has to be 
assumed that some victims do not come forward to claim compensation, for instance 
because they prefer not to disrupt an ongoing business relationship with the infringer. 
Moreover, in some instances, victims will find it rather difficult to convince courts of 
a sufficiently close causal link between the damage and the infringement.57  

Any realistic estimate of how much compensation victims could expect under a more 
effective legal framework for antitrust damages actions is therefore necessarily lower 
than  the  total  harm  to  consumers  and  other  victims  from  detected  and  undetected 
infringements estimated (for cartels) above. The Impact Study assesses the potential 
benefit of a more effective compensation system in the EU by comparing the current 
ineffective legal framework in Europe with a legal system where private enforcement 
of  competition  rules  by  means  of  damages  actions  is  very  effective,  i.e.  where 
victims of antitrust infringements no longer encounter the same obstacles to claiming 
compensation  in  court  for  the  damage  suffered.58  On  this  basis,  the  Impact  Study 
estimates that the total amount of compensation (single damages plus pre-judgment 
interest)  that  victims  of  antitrust  infringements  are  currently  forgoing  ranges  from 
approximately  €5.7  billion  (on  the  most  conservative  assumptions)  to  €23.3  billion 
(on  the  least  conservative)  each  year  across  the  EU.59  These  estimates  relate  to  all 
types of infringements of Articles 101 and 102 TFEU. They provide an approximate 
idea  of  the  amount  of  compensation  that  victims  are  currently  forgoing  and  do  not 
provide a precise calculation of the magnitude of future antitrust damage awards.  

Effective  remedies  for  private  parties  would  not  only  increase  the  likelihood  that 
infringers  are  held  liable,  but  would  also  increase  the  likelihood  of  detection  of 
illegal restrictions of competition. Therefore, improving the effectiveness of the legal 
framework for actions for damages would also produce beneficial effects in terms of 
deterrence of future infringements and greater compliance with EU antitrust rules,60 
as the Court emphasised.61 If more effective compensation mechanisms were to lead 

See Impact Study, Part I, sections 2.1.1 and 3.1.1.1. 
See Impact Study, Part I, section 4.1. 
Comparative Study, pp. 1-72 to 1-75 and 1-110. 
The  empirical data used by  the Impact  Study  in  this  comparison  are  mostly  from  the  USA, where an 
enhanced system of antitrust damages actions is available. A range of refinements were, however, made 
to these data. In particular, the figures mentioned above are not based on treble damages as customary 
in  the  USA,  but  rather  single  damages  with  pre-judgment  interest,  to  reflect  the  predominant  legal 
situation in many Member States (on average, single damages with pre-judgment interest can be said to 
equate roughly to double damages without pre-judgment interest, see Impact Study, Part I, section 6). 
See Impact Study, Part I, section 6. 
See also Impact Study, Part I, section 2.1.  
Case  C-453/99,  Courage  and  Crehan,  [2001]  ECR  I-6297,  27  and  case  C-360/09,  Pfleiderer  AG  v 
Bundeskartellamt, [2011] ECR I-5161, 29: "the existence of such a right [to claim damages] strengthens 
the working of the Community competition rules and discourages agreements or practices, frequently 

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to  a  reduction  of  hardcore  cartels  by,  for  example,  5%,  the  negative  consumer 
welfare impact would be reduced by €1.25 to €3.45 billion per year. 

covert, which are liable to restrict or distort competition. From that point of view, actions for damages 
before national courts can make a significant contribution to the maintenance of effective competition in 
the  European  Union".  The  complementary  function  of  private  enforcement  has  been  stressed  by  the 
Court  as  early  as  1963,  see  case  26/62,  van  Gend  en  Loos,  [1963]  ECR  1  (Eng.  Spec.  Ed.):  "(…)  the 
vigilance  of  individuals  to  protect  their  rights  amounts  to  an  effective  supervision  in  addition  to  the 
supervision entrusted to the diligence of the Commission and of the Member States." 

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4. 

69. 

4.1. 

70. 

4.2. 

71. 

OBJECTIVES  

This section sets out the general policy objectives pursued, along with several more 
specific  underlying  objectives.  Section  6.1  sets  out  and  explains  a  set  of  specific 
assessment  criteria  that  make  it  possible  to  measure,  in  qualitative  terms,  to  what 
extent the various policy options considered are capable of contributing to achieving 
the general and specific objectives pursued. 

General objectives 

This policy initiative has two primary objectives:  

(i) 

(ii) 

In  order  to  address  the  problems  described  in  section  3.1  and  avoid  the  costs 
and effects described in section 3.4.1, this policy initiative aims to ensure that 
the Commission and NCAs can apply a policy of strong public enforcement of 
competition law, without this public enforcement being unduly affected by the 
private  enforcement  before  national  courts.  One  of  the  key  elements  is  to 
protect leniency and settlement programmes as well as ongoing investigations 
of  the  Commission  and  NCAs.  This  requires  a  strict  judge-controlled  system 
for access to evidence, which also protects the files of competition authorities. 
In order to achieve this purpose, common rules should be established relating 
to the key aspects of the interaction between public and private enforcement. 

In order to address the problems described in sections 3.2 and 3.3 and to avoid 
the  costs  and  effects  described  in  section  3.4.2,  this  policy  initiative  aims  to 
ensure  that  victims  of  infringements  of  EU  competition  law  have  access  to 
truly  effective  mechanisms  for  obtaining full compensation for the harm they 
suffered.  By  pursuing  this  objective,  the  Commission  wishes  to  guarantee,  in 
every  Member  State,  certain  standards  allowing  victims  to  effectively  obtain 
full compensation from the infringers of Articles 101 and 102 TFEU, thereby 
giving full effect to such provisions. More effective compensation will ensure 
that the costs of infringements of competition law are borne by the infringers, 
and not by the victims, by compliant businesses and, indirectly, by society as a 
whole. This is in line with the competitiveness objectives for the EU. 

Specific objectives 

To  allow  for  a  more  systematic  and  thorough  assessment  of  whether  the  general 
objectives are fulfilled, the latter can be split up in the following specific objectives.  

• 

Protection of effective public enforcement 

As  described  in  section  3.1,  there  is  a  risk  that  private  enforcement  of  EU 
competition  law  by  national  courts  may  unduly  affect  the  currently  strong  public 
enforcement  of  these  rules,  especially  in  relation  to  certain  important  enfocement 
tools like the leniency and settlement programmes. Stakeholders have confirmed the 
existence  of  this  risk  and  have  called  for  a  solution.  Therefore,  one  of  the  specific 
objectives of this policy initiative  is the protection of effective  public  enforcement. 
The  following  elements  shall  be  taken  into  account  in  the  context  of  this  specific 
objective: 

– 

Ensuring effective public enforcement of competition law by the Commission 
and  NCAs  by  regulating  the  key  aspects  of  interaction  between  public 
enforcement  and  actions  for  damages  before  national  courts.  Leniency  and 
settlement  programmes  as  well  as  ongoing  investigations  of  the  Commission 

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and NCAs should be appropriately protected in all Member States in order to 
ensure the effective public enforcement of competition law. 

– 

Providing  for  specific  liability  rules  for  immunity  recipients  in  actions  for 
damages before national courts, in order to foster the leniency programmes of 
the Commission and NCAs.  

• 

Full compensation 

that  abusive 

As  indicated  in  section  3.2,  there  is  an  EU  right  to  full  compensation  for  the  harm 
suffered as a result of infringements of EU competition law. Section 3.2 also states 
that,  currently,  a  large  number  of  victims  of  EU  competition  law  infringements 
remain  uncompensated.  Nevertheless,  as  also  indicated  in  section  3.2,  stakeholders 
(predominantly  businesses)  have  equally  stated 
litigation  and 
overcompensation  should  be  avoided.  Overcompensation  within  the  meaning  of  a 
systematic burden to pay compensation in excess of the harm caused, can effectively 
be  avoided  by  excluding  punitive  or  multiple  damages  awards.  However,  if 
overcompensation is defined as a case-specific risk of a damages award higher than 
the harm actually suffered, it must be borne in mind that a trade-off exists between a 
higher chance of full compensation and a risk of overcompensation, but that the latter 
risk  is  offset  by  the  risk  of  undercompensation  resulting  from  the  lack  of  action  or 
from the absence of appropriate substantive and procedural rules governing damages 
actions. It must also be borne in mind that the distinction between full compensation 
and under- or overcompensation in the latter sense may be difficult if not impossible 
to  establish  in  a  given  case:  in  the  absence  of  an  empirical  measure  of  the  harm 
suffered,  the  actual  harm  suffered  is  given  by  definition  through  reference  to  the 
damages obtained from a court.  

In conclusion, the objective of full compensation consists of two elements:  

– 

– 

• 

Ensuring  an  effective  system  of  compensation  of  harm,  thereby  allowing  full 
compensation  for  the  entire  harm  suffered.  In  particular,  the  damage  awards 
should include pre-judgment interest in order to compensate the victims for the 
real value of the harm suffered.  

Need  to  avoid  over-compensation:  measures  put  forward  as  a  result  of  this 
initiative  should  not  lead  to  victims  systematically  receiving  damages  higher 
than the entire loss suffered. 

Greater  awareness  of  the  rules  and  deterrence,  increased  enforcement  and 
improved compliance, to the benefit of Europe’s competitiveness 

As  described  in  section  3.1,  public  and  private  enforcement  of  the  EU  competition 
rules  coexist  as  complementary  tools  serving  the  objective  of  an  effective 
enforcement of these rules. Both mechanisms need to function effectively to achieve 
optimal deterrence and compliance with the EU competition rules. Currently, private 
enforcement of competition law is not functioning effectively (as described in section 
3.2):  strengthening  this  enforcement  strand  will  have  important  positive  effects  on 
the overall effective enforcement of and compliance with the EU competition rules. 
Raising  awareness  is  necessary  in  order  to  ensure  that  victims  of  competition  law 
infringements make use of their right to full compensation and, hence, contribute to 
achieving  the  purpose  of  an  effective  private  enforcement  of  competition  law. 
Therefore, the following elements are to be taken into account under this objective: 

– 

Increasing  victims’  awareness  of  their  entitlement  to  damages  and  of  the 
conditions for bringing a claim to court. 

EN 

26 

   EN 

 
– 

– 

– 

– 

• 

Increasing (potential) wrongdoers’ awareness of the rules governing actions for 
damages and clarifying the conditions for their liability. 

Improving  compliance  with  the  EU  competition  rules  and  deterrence  by 
increasing  the  likelyhood  of  civil  suits  being  brought,  thus  rendering  more 
credible  the  risk  that  infringers  will  have  to  compensate  the  victims  of  their 
illegal behaviour. 

At the same time, avoiding that this policy leads to over-deterrence, where the 
risk  of  claims  for  damages  prevents  undertakings  from  engaging  in  lawful 
conduct or where damages are to be paid by undertakings which have engaged 
in  lawful  conduct  or  where  such  companies  face  high  costs  to  defend 
themselves against unmeritorious claims. 

Reinforcing  European  competitiveness  by  means  of  greater  compliance  with 
the EU competition rules.  

Access to justice 

As described in section 3.2, the fact that a large number of victims of infringements 
of  competition  law  currently  remain  uncompensated  and  see  their  right  to  damages 
under EU law frustrated, leads to a clear deficit in terms of compensatory justice and 
cannot  be  reconciled  with  the  fundamental  right  to  access  to  effective  judicial 
protection. In order to guarantee the respect of this EU fundamental right, access to 
justice  should  be  facilitated,  while  at  the  same  time  putting  in  place  safeguards  to 
avoid  abusive  litigation.  Under  this  specific  objective,  the  following  elements  shall 
be taken into account: 

– 

– 

– 

– 

– 

• 

Guaranteeing  effective  access  to  the  courts  and  an  effective  remedy  for  all 
victims,  as  required  by  Article  47,  first  paragraph  of  the  Charter  and  Article 
19(1),  second  subparagraph,  TEU,  including  for  those  who  suffered  scattered 
low-value damage, such as SMEs and consumers. 

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

Facilitating  access  to  the  relevant  evidence  in  a  case,  thus  overcoming 
information asymmetry.  

Ensuring that meritorious claims can effectively be brought, and be successful, 
despite the complexity of antitrust damages cases.  

At the same time, avoiding abusive litigation and ensuring that unmeritorious 
claims do not lead to the award of damages. 

Appropriate and efficient use of the judicial system  

As  indicated  in  section  3.2,  the  high  level  of  very  costly  factual  and  economic 
analysis required in antitrust cases constitutes a factor deterring many victims from 
bringing  actions  for  damages,  as  they  consider  the  risk/reward  balance  to  be 
unfavorable. Next to measures which aim at optimising this risk/reward balance, an 
effective possibility to engage in consensual dispute resolution would equally reduce 
these  costs  and  thus  serve  the  effective  private  enforcement  of  competition  law.  In 
order to ensure optimal effectiveness of the private enforcement of competition law, 
it  is  necessary  not  to  overburden  courts  and  to  avoid  procedural  abuses.  The 
following  elements  relating  to  the  use  of  the  judicial  system  will  be  taken  into 
account: 

EN 

27 

   EN 

 
– 

– 

– 

– 

• 

Streamlining handling of antitrust damages cases by the courts by means such 
as joining or grouping identical or similar claims. 

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

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

Limiting  the  risk  of  multiple  litigation  on  identical  or  similar  issues:  re-
litigation  of  issues  already  settled  should  be  avoided  since  they  entail 
unnecessary costs and delays plus the risks of a diverging outcome. 

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

Sections  3.2  and  3.3  describe  the  currently  existing  diversity  in  national  legal 
systems  in  relation  to  the  conditions  under  which  actions  for  damages  can  be 
brought. This diversity causes an uneven playing field both for victims, who seek to 
exercise their right to full compensation, and for infringing companies, who should 
be  held  liable  for  their  infringing  behaviour.  Furthermore,  this  diversity  could 
endanger  the  proper  functioning  of  the  internal  market.  Section  3.1  describes  the 
current  legal  uncertainty,  resulting  from  the  Pfleiderer  judgment,  in  relation  to  the 
discosure of evidence from the file of a competition authority in actions for damages 
and the risk of negative effects on the strong public enforcement of EU competition 
law.  In  order to ensure  the  proper  functioning  of  the  internal  market,  the  following 
elements shall be taken into account:  

– 

– 

– 

– 

• 

Ensuring a more level playing field in Europe so that businesses across Europe 
compete on an equal footing and that EU citizens and undertakings can rely on 
a  minimum  standard  to  enforce  the  rights  conferred  upon  them  by  the  EU 
Treaties.  

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

Increasing legal certainty for businesses operating throughout Europe through 
common standards for their liability for infringements of competition law. 

Increasing legal certainty as to which documents from the file of a competition 
authority can be disclosed as evidence in actions for damages. 

Providing benefits for SMEs 

The studies conducted on demand of the Commission have widely shown how SMEs 
often  suffer  from  the  difficulties  in  recovering  antitrust  damages.  As  described  in 
section 3.2, this is caused by obstacles to effective compensation such as the lack of 
legal  certainty  and  an  unfavourable  balance  between  benefits  expected  from  an 
action for damages and costs incurred. Individual SMEs might even be less likely to 

EN 

28 

   EN 

 
claim damages if they have to engage in litigation with an actual contractual partner, 
with whom the business relationship should be continued after the proceedings (fear 
of retaliation). In order to improve the situation of SMEs and put them in a position 
where they are realistically able to claim damages for competition law infringements, 
thus also contributing to the objective of full compensation, the following elements 
should be taken into account: 

– 

– 

• 

Improving the evidentiary position of SMEs in litigation, especially as regards 
the quantification of the damages. In the framework of the public consultation, 
SMEs and their associations have explicitly welcomed such measures. 

Improving the possibilities for collective redress.  

Stimulating economic growth and innovation 

In  order  to  provide  for  the  initiative  which  maximises  the  functioning  and  overall 
enforcement  of  the  EU  competition  rules  as  well  as  the  functioning  of  the  internal 
market,  the  policy  initiative  should  maximise  its  long  term  benefits  on  growth, 
productivity and innovation. The following elements play a role in this context: 

– 

– 

– 

Improving the possibilities for SMEs by putting them in a position where they 
are realistically able to claim damages for competition law infringements.  

Providing  for  a  balanced  initiative  providing  for  both  effective  public  and 
effective private enforcement of EU competition law.  

Ensuring  the  proper  functioning  of  the  internal  market  by  providing  for 
harmonised  minimum  standards  across  the  Member  States  in  relation  to  the 
essential features of actions for damages.  

EN 

29 

   EN 

 
5. 

72. 

73. 

5.1. 

74. 

75. 

5.2. 

76. 

77. 

78. 

CONTENTS OF THE CURRENT ANTITRUST DAMAGES INITIATIVE  

The  impact  assessment  of  the  current  Antitrust  Damages  Initiative  builds  on  the 
assessment carried out in the 2008 IAWP and should therefore be read in conjunction 
with it. Annex 4 to this impact assessment offers a summary of the 2008 IAWP. Four 
Policy  Options  are  analysed  in  this  Chapter,  focusing  both  on  their  substantive 
content and on the more general issue of the type of action required. The appropriate 
choice of the instrument will be addressed in Chapter 0.  

In order to better understand the four Policy Options set out in section 5.3 below, an 
overview of the main results of the 2008 IAWP is presented in section 5.1, while the 
scope  of  the  assessment  of  the  current  Antitrust  Damages  Initiative  is  presented  in 
section 5.2. 

The 2008 IAWP and the choice of the 'Preferred Option' 

The  2008  IAWP  assessed  different  bundles  of  several  specific  measures  aimed  at 
ensuring the effectiveness of the victims' right to compensation guaranteed by the EU 
Treaties. These policy options ranged from the baseline option of no action at the EU 
level  to  legislative  measures  maximising  facilitation  of  claims  and  incentives  for 
victims, as recalled by Table 12 in Annex 5 hereto.  

The  2008  IAWP  led  to  the  elaboration  of  a  Preferred  Option,  put  forward  in  the 
White  Paper.  Its  main  elements  were  as  follows:  full  single  damages;  disclosure  of 
specified categories of evidence, based on fact-pleading and proportionality; indirect 
purchasers'  standing  allowed;  passing-on  defence  allowed,  accompanied  by  a 
facilitation of proof of passing-on in favour of indirect purchasers; binding effect of 
NCA decisions across EU; rebuttable presumption of fault (once an infringement is 
established);  collective  redress  in  the  form  of  opt-in  collective  actions  and 
representative actions; rules on limitation periods concerning follow-on actions; and 
rules  on  interaction  with  leniency,  namely  protection  of  corporate  statements  from 
disclosure  and  limitation  of  immunity  recipients'  civil  liability.  For  a  detailed 
overview of the 2008 IAWP Preferred Option see Table13 in Annex 6 hereto.  

The current Antitrust Damages Initiative - scope of the assessment 

In order to address the problems identified in Chapter 3 and to achieve the objectives 
referred to in Chapter 4, it is necessary to assess different policy options that imply a 
different  degree  of  intervention  at  EU  level.  The  Commission  put  forward  in  the 
White  Paper  a  policy  approach  to  overcome  the  current  inefficiencies  of  antitrust 
damages  actions.  Stakeholders  widely  acknowledged  and  endorsed  this  general 
approach.  

On  the  basis  of  the  input  of  other  EU  institutions,  in  particular  the  Parliament,  and 
after  a  further  round  of  consultations  and  studies,  the  current  Antitrust  Damages 
Initiative  considers  a  number  of  adjustments  to  the  White  Paper's  policy  approach. 
Those adjustments are meant to address the problems identified in Chapter 3 and to 
further the objectives referred to in Chapter 4 in a cost effective manner. 

In  addition,  the  current  Antitrust  Damages  Initiative  aims  at  clarifying  the 
relationship between private and public enforcement of the EU competition rules, in 
particular the balancing between the protection of leniency programmes and the need 
for an appropriate access to evidence to ensure efficient compensatory redress. This 
is reflected in the options discussed below. 

EN 

30 

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5.3. 

79. 

80. 

Description of the Policy Options assessed in the current initiative  

The baseline scenario, presented below as Option 1, considers no EU action at all in 
the field of antitrust damages actions (neither soft law nor legislation). Option 2 aims 
at  codifying  the  measures  suggested  in  the  White  Paper  in  a  legislative  instrument. 
Option 3 builds on Option 2, while taking due account both of the main comments 
received  during  the  public  consultations  since  the  White  Paper  and  of  recent 
legislative and jurisprudential developments in the EU and in the Member States. It 
therefore  includes  additional  safeguards  for  access  to  evidence,  provides  for  a 
rebuttable presumption as to the existence of harm in cartel cases and provides for an 
effectiveness  requirement  in  relation  to  the  quantification  of  harm  by  the  claimant. 
Option  4  considers  the  adoption  at  the  EU  level  of  non-regulatory  measures  only. 
Options  2  to  4  must  be  all  read  together  with  the  provision  of  a  non-binding 
framework on the quantification of damages, as explained below at 5.4. 

When  considering  an  appropriate  legal  framework  for  antitrust  damages  actions, 
experience  in  other  jurisidictions  shows  that  more  far  reaching  measures  are 
available  than  those  considered  in  this  report.  These  measures  are,  in  particular: 
multiple  damages,  extensive  discovery  among  the  parties,  automatic  fee-shifting, 
opt-out class actions brought by any individual. These measures have been assessed 
in the IAWP. The result of that assessment was that they were excluded in view of an 
unsatisfactory cost/benefit ratio (high costs entailed in exchange for a higher rate of 
achievement  of  the  objectives),  as  summarised  in  Annex  4.  For  these  reasons,  the 
above-mentioned measures have been excluded also from the spectrum of available 
policy  options  in  the  present  exercise.  As  a  result,  all  measures  included  in  policy 
options 2 to 4 contemplate less costly means means to achieve the set objectives.  

Table  1:  Overview  of  the  Policy  Options  assessed  in  the  current  Antitrust  Damages 
Initiative 

1 

Option 
(baseline 
scenario) 

Damages 

No EU 
action 

Access 
evidence 

to 

No EU 
action 

Option 2  

Option 3  

Option 4 

Full single (no multiple damages) 

Soft  law  recommending  full  single 
damages 

Rules  on  disclosure  of 
of 
categories 
specified 
evidence,  based  on 
fact-
pleading and proportionality 

Soft  law  recommending  rules  on 
disclosure  of  specified  categories 
of  evidence,  based  on 
fact-
pleading and proportionality 

Rules  on  disclosure  of 
specified  categories  of 
evidence,  based  on  fact-
pleading 
and 
proportionality  

Protection  from  disclosure 
of  corporate  statements 
made  in  the  context  of 
leniency programmes 

No  access 
to  corporate 
statements  and  settlement 
to 
submissions.  Access 
of 
other 
after 
information 
closure 
public 
proceedings 

categories 

only 

of 

Soft law recommending not to give 
access  to  corporate  statements 
and  settlement  submissions  and 
recommending  access 
to  other 
categories of information only after 
closure of public proceedings 

Soft  law  recommending  limitation 
of liability of the immunity recipient 
to  claims  by  its  direct  and  indirect 
contractual partners 

Soft 
law 
standing is allowed 

recommending 

that 

A passing-on defence for the infringer that shows that the 
damages claimant has passed-on part or the whole of the 
illegal overcharge, as well as a rebuttable passing-on 
presumption in favour of the indirect purchaser 

Soft law recommending a passing-
on  defence  for  the  infringer  that 
shows  that  the  damages  claimant 
has passed-on part or the whole of 

No EU 
action 

limitation of liability of the immunity recipient to claims by 
its direct and indirect contractual partners 

Standing allowed 

Limitation  of 
liability 
civil 
of 
Immunity 
recipient(s) 

Indirect 
purchaser 

Passing-on  

No EU 
action 

No EU 
action 

EN 

31 

   EN 

 
 
 
 
Rebuttable 
presumption 
of harm 

No EU 
action 

No presumption 

Rebuttable  presumption  of 
existence of harm caused by 
cartels 

the illegal overcharge, as well as a 
rebuttable passing-on presumption 
in favour of the indirect purchaser 

law 

recommending 
presumption 

a 
Soft 
rebuttable 
of 
existence  of  harm  caused  by 
cartels 

of 

Effect 
NCA 
decisions 

Fault 
(once 
infringement 
established) 

No EU 
action 

No EU 
action 

Binding effect for the final infringement decisions of NCAs 

Soft  law  recommending  binding 
effect  for  the  final  infringement 
decisions of NCAs 

Rebuttable  presumption; 
exoneration  for  excusable 
errors.  

No EU action  

No EU action 

Limitation 
period 

No EU 
action 

A specific limitation period for damages actions that rely on 
an infringement decision by a competition authority 

Soft  law  recommending  a  specific 
for  damages 
limitation  period 
an 
actions 
on 
infringement 
a 
competition authority 

rely 
decision 

that 

by 

Cost rule 

Consensual 
dispute 
resolution 

No EU 
action 

No EU 
action 

Collective 
redress 

No EU 
action 

No legislative measure 

No EU action 

No EU action 

No legislative measure 

consensual 

Rules  on  suspensive  effect 
dispute 
of 
resolution, 
of 
settlements  on  other  injured 
parties  and  on  subsequent 
actions for damages 

effect 

Soft  law  recommending  rules  on 
suspensive  effect  of  consensual 
dispute 
of 
settlements on subsequent actions 
for damages 

resolution, 

effect 

Two  different  collective 
redress  mechanisms:  opt-
in  group  actions  and 
representative actions 

No  competition-specific  EU 
action,  separate  horizontal 
initiative 
collective 
on 
redress  which  is  outside  the 
scope 
impact 
of 
assessment 

this 

No recommendations on this topic 
in the competition-specific soft law  

5.3.1.  Option  1:  the  baseline  scenario  of  no  EU  action  in  the  field  of  antitrust  damages 

actions 

81. 

Option  1  contains  the  baseline  scenario,  entailing  no  action  at  all  at  EU  level 
regarding antitrust damages actions. Some respondents in the public consultation on 
the White Paper, as well as in the 2011 public consultation on collective redress have 
suggested  to  follow  this  option  on  grounds  of  general  inappropriateness  for  EU 
action  in  an  area  that  is  mostly  governed  by  national  substantive  and  procedural 
rules. The assessment of the impact of Option 1 examines the status quo and likely 
developments in the absence of EU action (prospective analysis). 

5.3.2.  Option  2:  adopting  the  White  Paper's  suggested  measures  through  a  legislative 

instrument 

82. 

62 

Option  2  envisages  a  legislative  instrument  incorporating  the  measures  that  the 
Commission  has  put  forward  in  its  White  Paper.  Such  instrument  would  include:  a 
confirmation that compensation of full single damages can be obtained; two different 
collective  redress  mechanisms  (opt-in  group  actions62  and  representative  actions); 

The White Paper and the IAWP referred to 'opt-in collective actions'.  In the framework of the public 
consultation  on  collective  redress  it  has  been  observed  that  this  terminology  might  lead  to  confusion 
between  collective  actions  and  collective  redress  mechanisms  in  general.  Therefore,  in  the  following, 
'opt-in collective actions' will be referred to as 'opt-in group actions'. 

EN 

32 

   EN 

 
                                                 
rules  on  disclosure  of  specified  categories  of  evidence,  based  on  fact-pleading  and 
proportionality;  a  limitation  of  liability  of  successful  immunity  applicants;  binding 
effect  for  the  final  infringement  decisions  of  NCAs;  standing  for  the  indirect 
purchaser;  a  passing-on  defence  for  the  infringer  that  shows  that  the  damages 
claimant  has  passed-on  part  or  the  whole  of  the  illegal  overcharge,  as  well  as  a 
rebuttable  passing-on  presumption  in  favour  of  the  indirect  purchaser;  minimum 
requirements for limitation periods for damages actions, also when they are brought 
after  an  infringement  decision  by  a  competition  authority;  and  a  rebuttable 
presumption  regarding  fault  once  the  infringement  has  been  established,  unless  the 
infringer can prove that the infringement was due to an excusable error. To avoid the 
risk  that  enhanced  damages  actions  might  have  a  negative  impact  on  public 
enforcement  activities,  in  particular  on  the  functioning  of  leniency  programmes, 
Option  2  suggests  protecting  from  disclosure  corporate  statements  made  in  the 
context of leniency programmes.  

5.3.3.  Option 3: legislative proposal based on the White Paper and additional safeguards 

83. 

84. 

(a) 

85. 

Option  3  consists  of  a  legislative  instrument  that  is  still  based  on  the  White  Paper 
(i.e. Option 2), while optimising the relation between public and private enforcement 
and  introducing  a  number  of  other  modifications.  Option  3  contains  the  following 
measures: the right to full single damages; rules on disclosure of specified categories 
of evidence, based on fact-pleading and proportionality with an enhanced protection 
for  documents  from  the  file  of  a  competition  authority;  a  limitation  of  liability  of 
successful immunity applicants; binding effect for the final infringement decisions of 
NCAs; standing for the indirect purchaser; a passing-on defence for the infringer that 
shows  that  the  damages  claimant  has  passed-on  part  or  the  whole  of  the  illegal 
overcharge, as well as a rebuttable passing-on presumption in favour of the indirect 
purchaser; rules on the beginning of limitation periods as well as a specific rule for 
limitation  periods  after  the  finding  of  infringement  by  a  competition  authority  or  a 
review court; a rebuttable presumption relating to harm in cartel cases; and measures 
facilitating consensual dispute resolution. 

Whereas  Option  2  does  not  include  any  legislative  measures  on  consensual  dispute 
resolution,  Option  3  foresees  rules  meant  to  facilitate  such  outcome  and  to  remove 
legal  uncertainties  existing  about  it,  for  instance  on  the  effect  of  settlements  on 
subsequent actions for damages. 

Access  to  evidence:  special  rules  concerning  access  to  the  file  of  a  competition 
authority 

After  the  2011  Pfleiderer  ruling  of  the  Court,  Member  States,  NCAs  and 
representatives of the business and legal community asked explicitly for an EU-wide 
clarification  of  the  interaction  between  public  enforcement  (in  particular  through 
leniency programmes) and private damages actions, where access to evidence plays a 
key  role.  Option  3  provides  for  such  clarification  by  suggesting  further  safeguards 
concerning  the  disclosure  of  documents  in  the  file  of  a  competition  authority.  It  is 
suggested  never  to  disclose  corporate  statements  and  settlement  submissions, 
because disclosure of those documents would jeopardise enforcement instruments at 
the disposal of the competitition authorities (particularly the leniency programme and 
the  settlement  programme).  To  protect  ongoing  public  investigations,  it  is  also 
suggested to allow the disclosure of documents that were especially prepared for the 
purpose of public enforcement proceedings only once those proceedings are finished. 
All other information (called 'pre-existing information') would remain disclosable. In 

EN 

33 

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doing  so,  Option  3  provides  for  an  appropriate  protection  of  effective  public 
enforcement,  while  allowing  claimants  to  obtain  the  information  required  to 
successfully bring a damages action. 

An  alternative  regime  would  have  been  to  leave  it  to  the  discretion  of  the  national 
court whether or not to disclose corporate statements or settlement submissions in the 
context of a damages action that is brought after public enforcement proceedings are 
closed.  That  option,  however,  would  not  have  given  the  undertakings  that  want  to 
engage  in  leniency  or  settlement  discussions  with  the  competition  authority,  the 
desired  upfront  legal  certainty  regarding  the  disclosibility  of  the  said  documents. 
That  absence  of  legal  certainty  would  be  to  the  detriment  of  the  success  of  those 
public  enforcement  instruments  and  is  thus  not  offering  an  appropriate  balance 
between protecting both public and private enforcement of the EU competition rules. 
This alternative regime is therefore not further considered. The benefits and costs of 
this status quo option are shown in tables 2 and 3 below. 

Rebuttable presumption as to the existence of harm in cartel cases 

The studies and consultations referred to in section 2 have shown that proving harm 
and  the  quantification  thereof  often  constitutes  an  important  barrier  for  effectively 
obtaining compensation for the harm caused by a competition law infringement. To 
remedy these evidentiary problems of the claimant associated with the quantification 
of  harm,  Option  3  considers  the  introduction  of  a  rebuttable  presumption  of  the 
existence  of  harm  in  cartel  cases.  The  defendant,  who  is  most  likely  to  possess  the 
evidence that is necessary to prove whether or not the cartel caused harm, is free to 
rebut  the  presumption.  The  presumption  would  thus  respect  the  principle  that  an 
information  advantage  of  one  party  should  lead  to  that  party  holding  the  burden  of 
proof.  Option  3  considers  to  limit  the  rebuttable  presumption  to  cartels  because  of 
their secret nature which makes it more difficult for parties to obtain the necessary 
evidence to prove harm.  

Studies  in  relation  to  overcharge  in  cartel  cases  support  the  introduction  of  such 
rebuttable presumption as to the existence of harm. The Quantification Study63 and a 
study by Connor and Lande64 conclude that the average overcharge in cartel cases is 
respectively 20% and 23%. Moreover, a study conducted by Boyer and Kotchoni65 in 
which  a  meta-analysis  of  cartel  overcharge  estimates  is  carried  out  in  reaction  to 
potential  errors  and  biases  in  the  model  used  by  Connor  and  Lande,  came  to  a 
corrected mean overcharge in all cartel cases of 17,5% with a median of 14%. The 
studies  hold  that  there  are  some  cartel  cases  (around  5%)  in  which  no  overcharge 
harm  is  caused.  However,  as  the  presumption  is  rebuttable  and  the  evidence  of  the 
absence of harm is likely to be in possession of the defendant, this small percentage 
of cases, where the presumption could be rebutted, do not prevent its introduction. 

After the existence of harm has been established, the claimant still has to prove the 
amount  of  that  harm.  The  burden  of  proof  for  the  quantification  of  harm  normally 
lays  with  the  claimant.  To  further  facilitate  this  burden,  one  could  consider 
introducing a rebuttable presumption that cartels lead to an overcharge of X% (with 

Quantification Study, p. 91. 
J.M.  Connor  and  R.H.  Lande  'Cartel  Overcharges  and  Optimal  Cartel  Fines',  in  S.W.  Waller  (ed.), 
Issues in Competition Law and Policy, volume 3, ABA Section of Antitrust Law.  
Marcel  Boyer  and  Rachidi  Kotchoni,  The  Econometrics  of  Cartel  Overcharges,  Scientific  Serial, 
Montréal, 10 August 2011. 

86. 

(b) 

87. 

88. 

89. 

63 
64 

65 

EN 

34 

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'X'  being  a  figure  supported  by  the  studies  referred  to  above).  However,  such  a 
specific presumption risks becoming a disincentive for victims of a cartel to engage 
in further quantification of the harm suffered. Such presumed overcharge figure may 
thus paradoxically lead to structural under-compensation of harm, in particular when 
it is at the lower end. That negative effect is increased by the fact that defendants will 
invest heavily into rebutting, i.e. defending the presumption, depending on whether 
they caused a lower or a higher overcharge harm. Therefore, this  option would  not 
even reduce litigation costs.  

To ensure the effectiveness of the right to claim damages and to keep litigation costs 
low, Option 3 considers a rebuttable presumption of harm (without mentioning any 
figure), combined with the general principle of effectiveness, acoording to which the 
burden and level of proof required for the quantification of the harm cannot render 
the exercise of the claimant's rights to damages practically impossible or excessively 
difficult.  In  that  context,  it  is  also  suggested  that  Member  States  should  enable  the 
national judge to estimate the amount of the harm. 

Introduction of provisions on consensual dispute resolution 

Option  3  also  foresees  the  introduction  of  some  provisions  removing  existing 
obstacles  to  effective  consensual  dispute  resolution  between  injured  parties  and 
undertakings  having  infringed  competition  law.  Such  provisions  relate  to  the 
suspension of limitation periods for bringing actions for damages if parties prove that 
they are or were engaged in consensual dispute resolution, the suspension of pending 
proceedings for the duration of consensual dispute resolution. They also require that 
damages  paid  through  consensual  settlements  should  be  taken  into  account  in 
determining  the  amount  of  compensation  or  contribution  that  a  settling  infringer 
needs to pay following a subsequent action for damages. 

Further  modalities  to  facilitate  consensual  dispute  resolution  have  not  been 
considered.  For  instance,  the  requirement  of  an  attempt  of  consensual  dispute 
resolution  before  having  access  to  a  court  has  not  been  considered  because  it  may 
unduly prolong litigation and it can constitute a violation of the fundamental right of 
access to a judge.66 Also the possibility to oblige non-settling infringers to contribute 
to  the  damages  paid  in  the  context  of  a  consensual  settlement  or  the  possibility  to 
release  settling  infringers  from  contributing  to  the  damages  paid  in  a  subsequent 
damages  action,  have  not  been  retained,  because  they  would  violate  the  basic 
freedom  of  all  parties  to  settle  or  not,  and  thus  the  fundamental  right  of  a  party  to 
resolve a dispute via court proceedings. 

Detailed comparison with Option 2 and policy issues underpinning the measures 

The third option consists of a binding instrument that partly revises the options put 
forward in the White Paper in order to keep account of more recent developments at 
national and EU level in two ways, namely 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  provisions  on  fault,  which  were  particularly 
criticised  by  some  business  respondents  within  the  public  consultation,  have  also 
been  removed.  All  these  broad  changes  have  in  common  that  they  reduce  to  some 

90. 

(c) 

91. 

92. 

(d) 

93. 

66 

See  also  paragraph  25  of  the  European  Parliament  resolution  of  2  February  2012  on  'Towards  a 
Coherent European Approach to Collective Redress (see footnote 23 above) 

EN 

35 

   EN 

 
                                                 
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  a  higher 
protection of public enforcement following the Pfleiderer judgment of the Court of 
Justice. The option has thus specifically been designed in order 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  of  the  EU  competition  rules.  More  specifically,  Option  3  differs  from 
Option 2 in 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 to that the protection from disclosure of settlement submissions, in which 
undertakings acknowledge their participation in a cartel to obtain a simplified 
procedure  and  a  reduction  of  the  fine.  Moreover,  Option  3  protects  on-going 
investigations of the competition authorities by limiting disclosure during those 
investigations.  With  these  measures,  Option  3  seeks  to  provide  for  a  more 
appropriate protection of effective public enforcement. However, because of its 
limited  scope,  claimants  could  still  obtain  the  information  required  to 
successfully  bring  a  damages  action.  The  envisaged  protection  of  public 
enforcement  tools  is  therefore  considered  not  to  make  it  excessively  difficult 
for  victims  of  a  competition  law  infringement  to  obtain  compensation  for  the 
harm they suffered. The protection is thus compatible with the right to effective 
judicial protection, as it is laid down in the EU Charter of Fundamental Rights. 

As regards quantification of antitrust damages, Option 3 - contrary to Option 2 
-  provides  for  a  rebuttable  presumption  relating  to  the  existence  of  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  in  order  to  reduce  the  adverse  impact  of  the  more  limited 
access by claimants to some types of evidence that may nonetheless have been 
useful  in  view  of  proving  the  harm  created  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. In that context, this option suggests that Member States 
should enable the judge to estimate the amount of the harm. With these rules, 
option 3 seeks to enhance the effectiveness of the right to claim damages and to 
keep litigation costs low. 

As  regards  collective  redress,  Option  3  does  not  contain  any  competition-
specific  measures.  While  acknowledging  the  specificities  of  EU  competition 
law enforcement and the possibility of specific rules, this option relies on the 
possibility of a separate, but horizontal approach to collective redress, through 
initiatives  characterised  by  a  broader  scope.  Finally,  in  order  to  partially 
counterbalance the absence of a specific collective redress mechanism, and to 
facilitate other kinds of cost-effective procedural means for the parties, Option 
3  contains  measures  on  consensual  dispute  resolution.  This  would  remove 
existing disincentives to engage in out-of-court settlements to compensate for 
harm caused by an EU competition law infringement. 

EN 

36 

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5.3.4.  Option 4: non-regulatory measures  

94. 

95. 

5.4. 

96. 

97. 

98. 

Policy  Option  4  entails  no  legislative  measures  at  EU  level  but  would  identify, 
mainly from the experience in  Member States, a range of useful solutions and best 
practices. These non-binding recommendations would be inspired by the measures as 
proposed under Option 3, but would – by their very nature – not be formulated with 
the same level of detail. The impact of this option largely relies on the willingness of 
the Member States to carry out the suggested actions. 

Option  4  thus  contains  the  following  measures:  a  recommendation  that  Member 
States  ensure  the  possibility  to  obtain  compensation  of  full  single  damages;  a 
recommendation that Member States adopt rules on disclosure of specified categories 
of  evidence,  based  on  fact-pleading  and  proportionality;  a  recommendation  to 
exclude  certain  documents  from  the  file  of  a  competition  authority  from  such 
disclosure;  a  recommendation  that  Member  States  adopt  provisions  limiting  the 
liability of successful immunity applicants; a recommendation for Member States to 
grant binding effect to the final infringement decisions of NCAs; a recommendation 
that Member States recognize standing of indirect purchasers in actions for damages; 
a  recommendation  that  Member  States  recognise  the  passing-on  defence  for  the 
infringer that shows that the damages claimant has passed-on part or the whole of the 
illegal  overcharge  as  well  as  the  suggestion  that  Member  States  introduce  a 
rebuttable  passing-on  presumption 
indirect  purchaser;  a 
recommendation as to when limitation periods should start and as to its duration after 
the  finding  of  infringement  by  a  competition  authority;  a  recommendation  that 
Member States introduce a rebuttable presumption relating to the existence of harm 
in  cartel  cases;  and  a  suggestion  that  Member  State  facilitate  consensual  dispute 
resolution. 

in  favour  of 

the 

Provision of non-binding assistance for quantification of damages 

The  provision  of  a  non-binding  legal  framework  for  the  quantification  of  damages 
has proven to be one of the measures most widely supported by the respondents to 
the  public  consultation  on  the  White  Paper.  Quantification  is  one  of  the  most 
complex issues in the framework of actions for damages for breach of antitrust rules. 
In this respect, the provision of pragmatic guidance, by reviewing available methods 
for estimating the loss suffered as a result of a competition law infringement, would 
be a useful tool for parties and judges in antitrust damages cases.  

Stakeholders have stressed the need for the non-binding character of such initiative. 
This  stance  appears  justified,  since  the  exact  quantification  of  the  harm  largely 
depends  on  the  specific  features  of  each  case  (i.e.  the  structure  of  the  market,  the 
behaviour  of  players  at  each  level  of  the  distribution  chain,  etc.).  A  non-binding 
measure  would  therefore  ensure  that  judges  can  rely  on  the  guidance  provided 
therein, when they deem it appropriate given the circumstances of the case at hand. 

The 2009 Quantification Study served as a basis for the Commission's formulation of 
the  non-binding  framework  for  damages  quantification  on  which  a  public 
consultation  was  held  in  2011.  The  responses  to  the  public  consultation  confirmed 
the  need  for  a  pragmatic  non-binding  guidance.  All  Policy  Options  set  out  for 
assessment  in  this  report  (except  the  zero-action  at  the  EU  level  option)  must 
therefore be read as encompassing the adoption of this guidance.  

EN 

37 

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6. 

6.1. 

99. 

IMPACT ANALYSIS 

Assessment criteria 

The  below  analysis  is  predominantly  qualitative,  due  to  both  methodological  and 
factual  considerations.  From  a  methodological  point  of  view,  the  current  Antitrust 
Damages  Initiative  aims  at  regulating  the  interaction  between  public  and  private 
enforcement  and  at  removing  the  obstacles  to  effectively  exercising  the  right  to 
compensation  guaranteed  by  the  Treaty,  also  by  removing  obstacles  currently 
existing under national rules governing antitrust damages actions.  

100.  While these changes will secure effective public enforcement and will make it easier 
to  claim  compensation,  an  empirical  quantification  of  the  effect  of  the  proposed 
policy options is not feasible, since it would require access to data that are currently 
not available. To our knowledge, no jurisdiction in the world has adopted a similar 
bundle  of  measures,  which  makes  it  impossible  to  estimate  the  impact  of  the 
proposed  policy  options  in  light  of  another  jurisdiction’s  experience.  Furthermore, 
the impact of each measure is determined by the interaction with other measures: the 
assessment  of  individual  measures  on  the  basis  of  their  effects  in  countries  where 
they are in place is therefore not directly relevant. 

101. 

102. 

An  approximative  quantitative  impact  would  be  expressed  in  a  very  wide  range  of 
values.  At  the  lower  end  of  the  range,  there  is  the  theoretical  hypothesis  that  the 
measures will not see a substantial increase in effectiveness of damages claims. It is, 
however,  highly  unlikely  that  an  initiative  at  EU  level  would  lead  to  such  a  zero 
benefit.  At  present,  it  has  been  regularly  reported  that  potential  damages  claimants 
have not sought redress in a number of prominent cases  of  infringement of the  EU 
antitrust  rules  (such  as  the  heat  stabilisers,  bathroom  fittings  and  bananas  cartels) 
because of procedural obstacles (e.g. the absence of effective access to evidence) and 
uncertainty  of  the  law  (e.g.  on  the  passing-on  of  overcharges).  Removing  such 
obstacles and introducing clear rules would undoubtedly result in an increased level 
of  meritorious  damages  actions  and  thus  of  compensation  for  victims  of  antitrust 
violations. Where undertakings (in particular corporations) or public bodies (such as 
municipalities) are injured parties, the pursuit of meritorious damages claims may be 
a  legal  obligation  under  applicable  rules  of  corporate  law  (fiduciary  duty  of  the 
management  of  a  corporation)  or  of  budgetary  rules.  A  more  effective  legal 
framework for bringing damages actions will likely allow decision-makers to decide 
that it is in the best interest of the corporation/public body to pursue compensation. 

At  the  upper  end  of  the  range,  there  is  the  equally  theoretical  hypothesis  that 
following  the  EU  initiative  all  the  harm  caused  by  antitrust  infringements  will  be 
recovered  by  victims,  meaning  a  recovery  of  currently  foregone  compensation  that 
to  €23.3  billion  per  year. 67  The  width  of  such  a  range, 
could  be  as  high  as  €5.7 
combined  with  the  impossibility  to  predict  the  increase  for  each  option  of  both  the 
willingness of injured parties to actually claim compensation for harm suffered and 
the  likelihood  that  meritorious  claims  succeed,  does  not  allow  quantifying  with  a 
satisfactory  degree  of  preciseness  the  impact  of  each  policy  option  in  terms  of 
enhanced compensation for injured parties. A qualitative assessment on the basis of 
multiple  criteria  is  therefore  the  only  feasible  way  of  analysing  and  comparing  the 
impact of each of the policy options. 

67 

See paragraph 0. 

EN 

38 

   EN 

 
                                                 
6.1.1.  Benefits 

a. 

103. 

104. 

b. 

105. 

c. 

106. 

107. 

Ensuring full compensation of the entire harm suffered  

According to the Manfredi judgment of the Court, “it follows from the principle of 
effectiveness and the right of any individual to seek compensation for loss caused by 
a contract or by conduct liable to restrict or distort competition that injured persons 
must be able to seek compensation not only for actual loss (damnum emergens) but 
also  for  loss  of  profit  (lucrum  cessans)  plus  interest”.68  A  legal  system  which  does 
not allow for an effective exercise of the right to full compensation of the entire harm 
would therefore violate the EU principle of effectiveness. 

Since  the  objective  is  full  compensation  for  the  harm  suffered,  options  will  score 
lower  on  this  criterion  to  the  extent  that  they  are  likely  to  lead  to  under-  or  over-
compensation  of  the  injured  party.  An  injured  party  is  under-  or  over-compensated 
when  it  receives  less  or  more  compensation  than  the  harm  actually  suffered.  Since 
full  compensation  in  the  greatest  possible  number  of  cases  is  a  primary  objective, 
good  scores  on  achieving  the  goal  of  full  compensation  will  weigh  heavily  in  the 
comparative impact analysis and in the identification of the preferred option.  

Protection of effective public enforcement 

Options  will  score  higher  to  the  extent  that  they  optimise  the  interaction  between 
public  enforcement  by  the  Commission  and  NCAs  and  actions  for  damages  before 
national courts. In addition, options will score higher to the extent that they provide 
for  an  appropriate  protection  of  leniency  and  settlement  programmes,  as  well  as  of 
ongoing  investigations  by  competition  authorities.  Since  this  is  also  a  primary 
objective,  good  scores  on  achieving  the  goal  of  protecting  effective  public 
enforcement  will  weigh  heavily  in  the  comparative  impact  analysis  and  in  the 
identification of the preferred option.  

Increased awareness, enforcement, deterrence and legal certainty 

Options  will  score  higher  to  the  extent  that  they  make  economic  operators  more 
aware of their rights and obligations under EU competition rules. Clear and explicitly 
formulated rules add to such awareness, just as much as they clarify the conditions 
applicable to claims for damages and the conditions of liability of offenders.  

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

108. 

A  higher  degree  of  awareness  of  the  EU  competition  rules,  combined  with  better 
enforcement  by  means  of  damages  actions,  contributes  to  greater  compliance  with 
these  rules  and,  hence,  to  better  achievement  of  their  objective  to  ensure  fair 
competition on the internal market.  

109. 

Options will score higher if they are likely to lead, all other things being equal, to an 
increase in deterrence rates. However, because increasing deterrence is not a primary 

68 

Joined cases C-295/04 to C-298/04, Manfredi, [2006] ECR I-6619 95. 

EN 

39 

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objective,  in  the  final  stage  of  comparing  options  and  determining  the  preferred 
option  less  weight  will  be  given  to  positive  scores  on  deterrence,  particularly 
compared  with  good  scores  on  the  primary  objectives.  Options  will  score  lower  on 
this category to the extent that they lead to a situation of over-deterrence, where the 
risk  of  damages  claims  prevents  undertakings  from  engaging  in  lawful  conduct  or 
where damages are paid by undertakings that did not infringe the competition rules. 

Access to justice 

Options  will  score  higher  on  this  criterion  to  the  extent  that  they  ensure  more 
effective access to justice for all victims of an infringement of competition law, and 
as such, promote the right to an effective judicial protection as laid down in Article 
47,  first  paragraph  of  the  Charter  and  in  Article  19(1),  second  subparagraph,  TEU. 
That  is  particularly  relevant  for  victims  who  have  only  small  claims  and/or  have 
difficulties in gaining access to the evidence necessary to prove their case. Options 
will score well if they adequately address the reasons why victims who are willing to 
bring a damages action eventually decide not to do so.  

At the root of these reasons is the fact that victims fear the opportunity cost and the 
financial  consequences  of  losing  a  meritorious  case.  More  than  the  former  factor, 
which  is  largely  a  matter  of  personal  judgment,  the  latter  is  the  key  to  ensuring 
adequate access to justice, e.g. by reducing the financial risks or the likelihood that 
meritorious cases will be lost. For instance, options that facilitate access to evidence 
will score higher. Options that would allow effective and efficient collective redress 
would also score higher. 

Efficient use of the judicial system 

Efficient  use  of  the  judicial  system  means  avoiding  unnecessary  delays,  multiple 
proceedings and contradictory outcomes. Options will score higher in so far as they 
avoid 
judicial  system  should  not  be 
overburdened, options will also score higher to the extent that they allow cases to be 
settled adequately out of court.  

these  undesirable  situations.  As 

the 

Options  will  score  lower  on  this  criterion  to  the  extent  that  they  offer  claimants 
excessive incentives encouraging them to bring damages actions although they have 
suffered  no  harm.  Options  that  offer  incentives  to  claimants  who  suffered  minor 
harm  are  not  considered  abusive,  even  if  the  harm  is  outweighed  by  the  litigation 
costs of the actions. 

A more level playing field  

Since  actions  for  damages  resulting  from  competition  law  infringements  are  put 
forward by the Court as a remedy stemming directly from EU law, claimants in such 
cases  should  all  be  able  to  use  this  remedy  effectively.  Article  47  of  the  Charter 
explicitly guarantees the right to an effective remedy to everyone whose rights and 
freedoms guaranteed by the EU law are violated.  Although the effectiveness of the 
remedy  may  allow  some  divergence  between  Member  States,  it  does  require 
compliance with certain standards, which would have to be the same across Europe. 

Conversely,  the  dissimilar  exposure  to  antitrust  damages  claims  in  the  Member 
States may have an influence on the market behaviour of companies. They could, for 
instance, decide not to make use of the freedom of establishment, the free movement 
of goods or the freedom to provide services in those Member States where the right 
to compensation is most effectively enforced. For companies that have infringed the 
EU  competition  rules,  there  may  be  a  competitive  advantage  for  those  that  are 

d. 

110. 

111. 

e. 

112. 

113. 

f. 

114. 

115. 

EN 

40 

   EN 

 
116. 

g. 

117. 

h. 

118. 

established  or  operate  in  a  Member  State  with  a  less  well  functioning  system  of 
antitrust damages. 

Effective redress, fair competition and the proper functioning of the internal market 
would  therefore  require  comparable  exposure  to  damages  claims,  which  can  be 
brought about only by similar basic procedural rules governing actions for damages. 
Options will thus score higher to the extent that they create a level playing field in 
Europe for claimants and defendants in antitrust damages actions. 

Providing benefits for consumers and SMEs 

This report also assessed the impact of the different options on consumers and SMEs. 
Options will score higher in so far as they provide more benefits to the situation of 
consumers  and  SMEs  by  increasing  the  effectiveness  of  their  right  to  obtain  full 
compensation  if  they  are  victims  of  an  infringement  of  EU  competiton  law.  Such 
effectiveness  of  the  right  to  full  compensation  will  be  increased  by,  among  others, 
reducing  the  costs  consumers  and  SMEs  have  to  incur  in  actions  for  damages  and 
increasing their access to the necessary data to prove their claim. 

Stimulating economic growth and innovation  

The report assesses the impact of the different options on macro-economic variables, 
such as competitiveness, innovation, growth and jobs. This impact coincides largely 
with the expected level of future compliance with the competition rules. In particular, 
the more undertakings comply with the rules, the more competitive markets will be 
and  the  lower  any  allocative  inefficiency.  Further,  it  is  considered  that  a  balanced 
system,  fostering  both  effective  public  and  effective  private  enforcement  of 
competition  law,  stimulates  growth,  productivity  and  innovation.  Options  that  are 
more likely to achieve these results are therefore more likely to contribute positively 
to  growth  and  employment.  Such  positive  overall  effects  are  likely  to  outweigh 
certain negative effects in those rare cases where the breach of competition law and 
the resulting public fines and liability for civil damages pose a financial threat to the 
survival of the infringing firm. 

6.1.2.  Costs 

a. 

119. 

b. 

120. 

Litigation costs 

This broad category of costs covers both the litigation costs for parties to proceedings 
(both settlement costs and costs incurred when the case is brought to court) and the 
enforcement costs for public authorities (such as courts and competition authorities). 
Options  will  therefore  score  higher  on  these  costs  to  the  extent  that  they  offer 
incentives  to  litigate  and/or  suggest  measures  that  increase  the  costs  (resources, 
opportunity cost and money) of litigation for the parties or for public authorities. 

Administrative burden 

This  category  includes  costs  incurred  by  businesses,  consumers  and  public 
authorities in  order to meet legal obligations  to  keep  information  and  to  provide  it, 
either  to  public  authorities  or  to  private  parties.  Only  the  net  costs  are  taken  into 
account, i.e. excluding those that would be incurred anyhow, even without any legal 
obligation.  

121. 

Options  will  score  higher  to  the  extent  that  they  require  businesses,  consumers  or 
public  authorities  to  keep  information  for  a  long  period  of  time  (storage  costs)  and 
that  they  impose  an  obligation  to  provide  that  information  to  one  of  the  parties 

EN 

41 

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c. 

122. 

123. 

d. 

124. 

6.2. 

125. 

126. 

(disclosure costs). Options will score high on disclosure costs to the extent that they 
have a low threshold triggering disclosure and/or wide scope of disclosure. 

Error costs 

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

Errors  in  quantification  of  damages  are  not  included  in  this  category  because  the 
resulting  under-  or  over-compensation  already  has  a  negative  impact  on  the 
corrective justice objective (see paragraph 104).  

Implementation costs  

Implementation  costs  means  costs  incurred  by  businesses,  consumers  and  national 
public  authorities to  adapt  to new rules (e.g. training costs, compliance costs, etc.). 
Although  real,  these  costs  are  therefore  transitory.  Furthermore,  implementation 
costs cover the costs for transposition as well as the costs that are brought about by 
incoherences in national legislation as a result of an EU legislative initiative. Options 
will  score  high  on  these  costs  to  the  extent  that  they  lead  to  a  big  change  in  the 
regulatory  context  in  which  businesses,  consumers  and  public  authorities  operate. 
Options  will  also  score  lower  in  so  far  as  transposition  costs  are  limited  and  the 
resulting coherence of national legislation is higher. 

Identifying and assessing the impact of each option 

The assessment presented in this report is based on the findings of the Impact Study, 
of the IAWP, of the Quantification Study and the consultations on quantification of 
antritrust harm and on a horizontal approach towards collective redress. This section 
sets out, in the form of tables, the conclusions of the Commission’s assessment of the 
likely positive and negative impacts that options 1 to 4 would have.  

Each option is assessed on its own merits, including Option 1, which is the baseline 
“no  policy  change”  scenario.  Option  3  is  furthermore  assessed  in  comparison  to 
Option 2, of which it is a refinement. The reason for choosing this method is that, in 
the context of claims for damages for breach of the EU antitrust rules, it is important 
to  illustrate  the  significant  costs  and  limited  benefits  that  taking  no  action  at  all 
would have. This approach makes it possible to compare the options with each other. 

127. 

The impact of the option against the baseline is summarised in the tables under the 
following scoring system:  

+ + + / - - -  Very positive / negative impact 

+ + / - - 

Moderate positive / negative impact 

+ / -  Negligible positive / negative impact 

0 

No Impact 

128. 

As the initiative has no significant environmental impact and no appreciable effects 
on trade with and investments by non-EU countries, these factors will not be further 
addressed in this impact assessment report. The below tables contain the assessment 
of  the  different  policy  options  on  the  basis  of  the  assessment  criteria  described  in 
Section 6.1. 

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42 

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6.2.1.  Option 1 

129. 

130. 

131. 

Option 1 entails the baseline scenario of zero action at EU level on antitrust damages 
actions. The assessment of the impacts of Option 1 therefore examines the status quo 
and  any  developments  considered  likely  without  EU  action  (prospective  analysis). 
The  likelihood  of  any  such  developments  is  difficult  to  foresee,  even  for  the  short 
and medium term. It should be borne in mind that Member States have been required 
to  guarantee  the  effectiveness  of  the  EU  competition  rules  since  the  EC  Treaty 
entered  into  force.  In  2001  the  Court  explicitly  called  upon  Member  States  to 
provide, in the absence of EU rules, for effective remedies under their civil law and 
procedure to safeguard the right of all victims to compensation for harm suffered as a 
result of infringements of Article 101 or 102 TFEU.  

Notwithstanding  these  obligations  under  EU  law,  to  date  very  few  Member  States 
have taken action to improve the effectiveness of their legal framework for antitrust 
damages  actions  and  there  is  no  clear  indication  that  a  significant  number  of  other 
Member  States  would  adopt  the  necessary  measures  without  any  impetus  from  EU 
level.  Moreover,  in  those  Member  States  where  measures  have  been  taken  or  are 
being  contemplated,  those  measures  are  rarely  covering  all  existing  obstacles  to  an 
effective  redress  system  for  victims  of  a  competition  law  infringement.69  The 
Commission’s analysis of various likely impacts of the option of zero action at EU 
level  is  based  on  the  probably  still  conservative  (i.e.  optimistic)  assumption  that 
some Member States would adopt a number of measures to improve the effectiveness 
of  antitrust  damages  actions  in  Europe,  whereas  currently  only  the  UK  envisages  a 
relevant initiative.  

In the Pfleiderer case, the Court ruled that it is for a national court to determine on a 
case-by-case  basis  and  according  to  national  law  the  conditions  under  which 
disclosure  of  leniency-related  information  must  be  permitted  or  refused.  It  is  thus 
clear that in the absence of EU rules on this issue, legal uncertainty and a potential 
uneven playing field between Member States may develop with regard to the balance 
to be struck between the public and private enforcement of competition law. When 
choosing Option 1, this legal uncertainty would persist.  

Table 2: Benefits of Option 1 

Benefits achieved/ 
problem 
addressed 

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

1. Ensuring full 
compensation of 
the entire harm 
suffered 

2. Protection of 
effective public 
enforcement 

0 

0 

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

Under-compensation  of  many  victims  likely  to  remain:  obstacles  to 
bringing  actions  and  to  successfully  proving  the  conditions  for  compensation 
highly  likely  to  persist  in  most  MS  •  consequently,  no  guarantee  that  all  EU 
citizens will enjoy a certain minimum level of protection of their right to antitrust 
damages70 

Without  a  legislative  measure  at  EU  level,  the  balancing  exercise  on  the 
interplay public/private enforcement is left to national courts. There are risks of 
fragmentation  and  a  lower  overall  level  of  protection  of  public  enforcement  in 
the  EU.  This  might  endanger  the  effectiveness  of  certain  public  enforcement 
tools, such as leniency and settlement programmes 

69 
70 

See paragraph 3.2 above for more information on this subject.  
See, in particular, Impact Study, Part III, section 2.1 and Part II, sections 1.6.1, 2.2.1, 3.2.1 and 4.2.1. 

EN 

43 

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0 

3. Increased 
awareness, 
enforcement, 
deterrence and 
legal certainty 

4. Access to justice 

0 

5. Efficient use of 
the judicial system 

6. A more level 
playing field 

7. Positive impact 
on SMEs and 
consumers  

8. Stimulating 
economic growth 
and innovation 

0 

0 

0 

0 

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

In  most  MS,  access  to  justice,  in  particular  for  SMEs  and  consumers, 
remains  problematic:  even  though  some  measures  may  be  taken  in  a  few 
MS (for example on collective redress), access to justice in antitrust damages 
cases  will  continue  to  be  difficult,  as  in  many  MS  significant  changes  are 
unlikely,  especially  in  the  following  areas:  access  to  evidence,  collective 
redress and the passing-on defence71  

Current 
improvement as a result of better collective redress in certain MS72 

inefficiencies  remain 

in  most  MS,  except  maybe  some 

Substantial  differences  remain  between  MS:  highly  unlikely  that  in  the 
absence  of  any  EU  action  businesses  would  compete  across  Europe  on  an 
equal footing • highly unlikely that citizens and undertakings can enforce their 
rights  conferred  by  the  Treaty  throughout  the  EU  in  an  similar  manner  •  no 
indication that a virtuous “mutual learning” process or a “race to the top” in the 
form  of  competition  between  legal  orders  would  stimulate  adoption  of  similar 
best practices across the EU • the current fragmentation of the legal framework 
for  damages  actions  could  even  become  wider  in  a  few  years  if  some  MS 
enact significant reforms while others maintain the status quo73 

Exercise  of  right  to  damages  would  remain  very  difficult:  SMEs  and 
consumers are likely to suffer particularly from the persisting legal uncertainty74

Negligible contribution75 

Table 3: Costs of Option 1 

Costs 

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

1. Litigation costs  

0 

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

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

71 
72 
73 
74 
75 

See, in particular, Impact Study, Part III, section 2.1 and Part II, sections 1.6.1, 2.2.1 and 3.2.1. 
See, in particular, Impact Study, Part III, section 2.1 and Part II, sections 2.2.1 and 3.2.1. 
See paragraph 3.2 above as well as Annex 3 for more information on this subject.  
See, in particular, Impact Study, Part III, section 2.1.1. 
See, in particular, Impact Study, Part III, section 2.1.2. 

EN 

44 

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but if certain MS improve collective redress, costs for claimants may decrease 
as a result of efficiencies (compared with individual actions)76 

Relatively  small  burden  in  most  MS,  but  may  increase  slightly:  relatively 
small number of companies concerned due to low number of cases • in most 
MS,  currently  limited  information/disclosure  obligations  on  other  party  •  in  the 
not  very  likely  event  that  some  MS  increase  the  scope  of  disclosure  and 
limitation  periods  in  antitrust  damages  cases,  administrative  burden  would 
slightly increase77 

Little litigation, some errors will persist, but total number moderate: some 
errors  likely  due  to  lack  of  effective  access  to  evidence  and,  hence,  access 
truth and absence of learning effects • given low level of litigation, total number 
of errors not high 

but some MS might possibly introduce rules for greater accuracy in fact-finding 
(although  not  very  likely)  •  to  the  extent  that  the  number  of  cases  increases, 
courts will grow more familiar with antitrust cases and avoid errors78 

No implementation costs, in the absence of any provisions at EU level 

Administrative 

2. 
burden 

0  

3. Error costs 

0 

4. Implementation 
costs 

0 

6.2.2.  Option 2 

132. 

The second option is to codify the White Paper's suggestions, that were identified as 
the  preferred  option  in  the  IAWP.79  In  the  below  tables,  the  measures  proposed  by 
Option 2 will be scored in comparison to the baseline scenario of no EU action in the 
field (Option 1). For stakeholder views and other evidence on the different measures 
introduced by Option 2, reference is made to Section 7.1 and Chapter 3 of this report, 
as well as Annex 8. 

Table 4: Benefits of Option 2 

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

+ + + 

Benefits achieved/ 
problem 
addressed 

1. Ensuring full 
compensation of 
the entire harm 
suffered 

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

Overall,  a  more  effective  compensation  mechanism  for  all  victims:  clear 
but  measured  facilitation  of  damages  claims  (especially  by  means  of 
disclosure  of  categories  of  evidence,  opt-in  group  and  representative  actions 
and non-binding guidance on the damages quantification) is likely to lead to an 
increase  in  the  number  of  victims  compensated  •  in  many  MS,  disclosure  of 
categories  of  evidence  will  improve  the  likelihood  of  proving  liability  and 
quantification  of  the  full  actual  harm  suffered  •  facilitation,  for  indirect 
purchasers, of proof of passing-on makes compensation of such victims more 
likely  •  passing-on  defence  is  in  line  with  the  compensation  objective,  insofar 
as  it  endeavours  the  allocation  of  compensation  to  the  level  where  the  harm 
has  effectively  been  suffered  •  availability  of  both  opt-in  group  and 
representative  actions  remove  the  often  unfavourable  cost/benefit  ratio  and 
make  recovery  of  scattered  damage  in  the  field  of  competition  more  likely  • 
rules on limitation periods ensure that there is enough time to bring an action 
for  the  whole  harm  in  case  of  repeated  or  continuous  infringements  and 
infringements  of  which  the  victim  cannot  reasonably  have  knowledge  • 
limitation of liability for immunity recipient does not entail a risk of reduction of 
the available compensation, e.g. in case of insolvency, as it does not apply if 

76 
77 
78 
79 

See, in particular, Impact Study, Part III, section 2.1 and Part II, sections 1.6.1, 2.2.1 and 4.2.1.  
See, in particular, Impact Study, Part III, section 2.1 and Part II, sections 1.6.1 and 4.2.1. 
Ibidem 
For a detailed description, see Section 0. 

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45 

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2. Protection of 
effective public 
enforcement 

+ + 

+ + + 

3. Increased 
awareness, 
enforcement, 
deterrence and 
legal certainty 

4. Access to justice   + + + 

5. Efficient use of 
the judicial system 

+ + + 

the  compensation  cannot  be  obtained  from  other  infringers  •  no  over-
compensation 

but  some  risk  of  under-compensation  where  cases  are  settled  (at  a  lower 
amount  than  the  actual  harm)  •  single  damages  and  requirements  to  fulfil  in 
order  to  obtain  a  disclosure  order  might  play  as  disincentives  •  no  binding 
legislative  measures  on  costs  pose  a  strong  risk  of  lack  of  effective  action  at 
the national level. 

of 

Increase 
in  protection 
effective  public 
enforcement:  protection  of  corporate 
statements 
• 
safegurds  protection  of 
limitation  of  civil  liability  for  the  immunity  recipient 
keeps the incentives high to apply for leniency  

leniency  programmes 

but no effective protection of ongoing investigations of 
the Commission or NCAs 

Overall,  increase  in  deterrence  rates,  enforcement  and  legal  certainty: 
increase  in  number  of  damages  awards,  especially  by  means  of  opt-in  group 
and  representative  actions,  plus  more  effective  disclosure  rules  improve 
enforcement and, thereby, deterrence rate • increase in the number of victims 
compensated  adds  to  this  effect  •  rules  on  limitation  periods  provide  for 
effective enforcement in most cases  while avoiding legal uncertainty • no risk 
of  over-deterrence  •  significant,  comprehensive  clarification  of  conditions  for 
exercising the right to damages and for liability of companies • increased legal 
certainty on burden of proof for passing-on of overcharges 

but  no  incentives  (e.g.  multiple  damages)  to  stimulate  market  players  to 
monitor and detect infringements • limitation of liability of the immunity recipient 
might  slightly  decrease  deterrence  of  actions  for  damages  for  the  immunity 
recipient, but increases the  deterrence through  actions for damages for  other 
infringers and thus the overall deterrence in cartel cases 

Overall,  broader  access  to  justice  especially  for  indirect  purchasers: 
compensation  of  greater  number  of  victims  (including  those  who  suffered 
scattered  damage)  •  opt-in  group  actions  and  representative  actions  improve 
access  to  justice  for  low-value  small  claims  •  facilitation  of  pass-on  makes 
proof  of  damage  more  likely  •  in  terms  of  access  to  evidence,  significant 
improvement  in  several  MS,  as  disclosure  of  categories  of  evidence  possible 
and as initial fact-pleading threshold is adapted to circumstances of each case 
and  protection  of  corporate  statements  does  not  negatively  affect  access  to 
justice as all pre-existing documents are still available for disclosure • rules on 
limitation  periods,  especially  on  limitation  periods  in  follow-on  cases,  allow 
proper access to justice 

but threshold to obtain disclosure could make it difficult to obtain evidence in 
some  cases  •  limitation  of  liability  of  the  immunity  recipient  may  marginally 
affect  access  to  justice,  even  if  injured  parties  can  still  claim  compensation 
from  immunity  recipients  if  they  cannot  obtain  it  in  full  from  the  other  cartel 
participants  •  no  measures  on  costs  regimes  could  result  in  no  action  at 
Member  States  level,  thus  not  completely  removing  one  of  the  obstacles  to 
effective access to justice  

Overall,  significant  improvement  of  efficiency:  binding  effect  of  NCA 
decisions and fault presumption enhances efficiency in follow-on cases • opt-in 
group/representative  actions  allow  some  measure  of  aggregation  of  small 
claims  •  disclosure  is  not  likely  to  lead  to  abuses  because  of  ex  ante  judicial 
control, especially of proportionality  

but no rules on costs entails a strong risk of lack of implementation at national 
level • in the absence of introduction of opt-out actions, Option 1 may still lead 
to quite a number of individual claims concerning the same infringement. 

6. A more level 
playing field 

+ + + 

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

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46 

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7. Positive impact 
on SMEs and 
consumers  

+ + + 

SMEs  and  consumers  are  likely  to  benefit  from  facilitation  of  damages 
claims, especially from improvements in their evidentiary position and from the 
introduction of opt-in group and representative actions 

but slight risk that the 'loser pays' rule will discourage SMEs and consumers in 
low-probability cases or, due to the rules on disclosure, claimants who do not 
possess much evidence at the outset 

Second  pillar  of  enforcement  likely  to  emerge  •  push  for  more  competitive 
markets with likely positive effects on growth and employment • very low risk of 
excessive  litigation  leading  to  a  deteriorating  business  environment  •  positive 
effects on SMEs and hence for economic growth 

but the safeguards against abusive proceedings and the lack of measures on 
costs could still discourage victims from claiming compensation  

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

Overall, moderate increase in total litigation costs and per average case: 
slight  increase  in  number  of  lawsuits  (less  than  the  number  of  victims 
compensated  due to collective redress mechanisms) • costs per claimant per 
case  may  even  decrease  due  to  efficiencies  produced  by  collective  redress 
mechanisms,  even  though  they  may  entail  new  costs  for  the  courts  •  in  MS 
where  evidence  disclosure  is  currently  uncommon,  increase  in  burden  on 
courts  •  binding  effect  of  NCA  decisions  across  EU  allows  concentration  of 
damages  claims  in  multi-state  cases  in  one  court  and  avoids  re-litigation  • 
presumption  of  fault  reduces  parties’  costs  in  follow-on  claims  •  pass-on 
defence may have little impact on length of procedure, but costs are borne by 
defendant  invoking  it  •  early  disclosure  may  stimulate  cost-efficient  early 
settlements 

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

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

Moderate 
this  option 
implementation  costs:  some  measures  under 
(especially  disclosure  rules,  limitation  of  liability  of  the  immunity  recipient, 
binding effect and collective redress mechanisms) require changes in the law 
of  several  MS.  Especially  the  implementation  of  sectoral  collective  redress 
mechanisms  leads  to  costs.  •  need  for  training  of  judges  and  the  legal 
community • none of the changes required raises major public policy concerns 
• all one-off costs, except for the training of judges 

8. Stimulating 
economic growth 
and innovation 

+ + 

Table 5: Costs of Option 2 

Costs 

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

1. Litigation costs  

- - 

2. Administrative 
burden 

- - 

3. Error costs 

- 

4. Implementation 
costs 

- - 

6.2.3.  Option 3 

133. 

Compared  to  Option  2,  the  legislative  initiative  envisaged  under  Option  3  mainly 
proposes  further  safeguards  to  access  to  evidence,  introduces  a  rebuttable 
presumption  of  harm  caused  by  a  cartel  and  proposes  measures  to  facilitate 

EN 

47 

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consensual dispute resolution.80 The scores attributed to Option 3 in the below tables 
are based on a comparison of this option with the baseline option of no EU action in 
the field (Option 1). However, for the sake of clarity and in order to avoid repeating 
the  same  arguments  as  given  in  Tables  4  and  5  in  relation  to  Option  2,  the 
explanation of the rating is presented also in comparison to Option 2. For stakeholder 
views  and  other  evidence  on  the  different  measures  introduced  by  Option  2, 
reference is made to Section 7.1 and Chapter 3 of this report. 

Table 6: Benefits of Option 3 

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

+ + 

Benefits achieved/ 
problem 
addressed 

1. Ensuring full 
compensation of 
the entire harm 
suffered 

+ + + 

+ + + 

2. Protection of 
effective public 
enforcement 

3. Increased 
awareness, 
enforcement, 
deterrence and 
legal certainty 

4. Access to justice 

+ + + 

5. Efficient use of 
the judicial system 

+ + 

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

Lower  than  under  Option  2:  similar  incentives  and  measures  aimed  at 
facilitating  damages  actions  •  the  rebuttable  presumption  on  the  existence  of 
harm  and  the  introduction  of  the  principle  of  effectiveness  as  regards 
quantification  increase  the  possibility  to  obtain  compensation  •  the  strong 
protection  of  public  enforcement  may  lead  to  more  cartel  cases  and  thus  to 
more  follow-on  damages  actions  •  the  facilitation  of  consensual  dispute 
resolution increases the possiblities for out-of-court settlements, 

but  additional  safeguards  for  evidence  disclosure  might  have  an  adverse 
impact  on  the  use  of  such  procedural  tools  •  contrary  to  Option  2,  no 
competition specific collective redress is introduced  

Higher  than  under  Option  2:  strong  protection  of  the  file  of  the  competition 
authority regarding corporate statements and settlement submissions. • access 
to other documents in the file of the competition authority only after the closure 
of  the  proceedings  provides  increased  protection  of  ongoing  investigations  of 
the Commission and NCAs 

The same as under Option 2: the rebuttable presumption on the existence of 
harm  and  the  introduction  of  the  principle  of  effectiveness  as  regards 
quantification  increases  the  chance  that  victims  can  succesfully  claim 
damages  

but the absence of collective redress mechanisms in Option 3 makes that the 
increased  damages  awards  as  expected  under  Option  2  through  the 
introduction of collective redress would not be realized. 

The same as under Option 2: • the rebuttable presumption on the existence 
of  harm  and  the  introduction  of  the  principle  of  effectiveness  as  regards 
quantification  lowers  victims'  hesitance  to  initiate  actions  for  damages  •  the 
facilitation of consensual dispute resolution increases the possibilites of a out-
of-court settlement and thus of obtaining fair compensation within a short time 
period, 

but  the  additional  safeguards  for  evidence  disclosure  might  have  an  adverse 
impact  on  the  use  of  such  procedural  tools  •  contrary  to  Option  2,  no 
competition specific collective redress mechanism is introduced  

Lower than under Option 2: • no risk of burdening the courts with unfounded 
or otherwise abusive claims because no sectoral collective redress mechanism 
as  under  Option  2  is  introduced•  stimulating  fair  out-of-court  settlements 
reduces the burden on the judiciary 

but in the absence of introduction of collective redress mechanisms Option 3 
may lead to more individual claims concerning the same infringement 

80 

For a detailed description, see section 0. 

EN 

48 

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6. A more level 
playing field 

7. Positive impact 
on SMEs and 
consumers  

+ + + 

+ + 

The  same  as  under  Option  2:  more  level  playing  field  for  both  infringing 
undertakings and injured parties 

Lower than under Option 2: in comparison to Option 2, the evidentiary 
position of SMEs and consumers is better under Option 3, due to the 
introduction of the rebuttable presumption of harm in cartel cases. 

but  the  protection  of  the  file  of  competition  authorities  may  lead  to  more 
difficulties to obtain access to evidence • no collective redress mechanisms  

8. Stimulating 
economic growth 
and innovation 

+ + 

The same as under Option 2 

Table 7: Costs of Option 3 

Costs 

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

1. Litigation costs  

- 

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

Overall,  slight  increase  in  total  litigation  costs  and  per  average  case; 
though  less  costs  than  in  Option  2:  the  fact  that  there  is  no  collective 
redress under Option 3 leads to less actions being brought and thus to lower 
litigation costs • rebuttable presumption of harm in cartel cases saves costs • 
the facilitation of quantification of the harm reduces the administrative burden 
for courts and increases the likelihood of out-of-court settlements 

2. Administrative 
burden 

- 

Lower than under Option 2: the protection of public enforcement will reduce 
the  administrative  burden  that  damages  actions  could  cause  on  competition 
authorities 

3. Error costs 

0 / - 

Lower  than  under  Option  2:  due  to  the  fact  that  no  collective  redress 
mechanisms are introduced, less actions will be brought and error costs will be 
lower, if any. 

4. Implementation 
costs 

- 

6.2.4.  Option 4 

Lower than under Option 2: implementation costs are expected as a result of 
introducting collective redress mechanisms; as those mechanisms are absent 
under Option 3, implementation costs are expected to be lower. 

134. 

135. 

Option  4,  the  'non-regulatory  approach',  identifies  a  range  of  useful  solutions  and 
best practices, mainly from the experience in Member States, which the Commission 
would  recommend  to  all  Member  States  for  implementation  in  their  legal  systems. 
The  impact  assessment  of  this  non-regulatory  approach  is  based  on  the  assumption 
that  the  specific  measures  that  in  Option  3  are  suggested  as  legislative  measures 
would in Option 4 only be recommended to the Member States.81  

Predicting the impact of mere recommendations is a delicate exercise, as it will to a 
large extent depend on the Member States. The likelihood that they will implement 
legislative changes on the basis of recommendations is difficult to foresee and would 
mainly depend on a persuasive effect of the recommendations, next to a more general 
awareness raising effect. Although some literature advocates the use of soft law and 
recommendation of best practices to achieve broad policy objectives at the EU level, 
there  is  no  compelling  evidence  that  the  persuasive  effect  has  ever  been  strong 
enough  to  create  a  high  likelihood  that  EU  Member  States  would  change  their 

81 

See paragraph 5.3.3 above for a description of those measures. 

EN 

49 

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136. 

137. 

138. 

existing national laws, particularly not in areas of law such as civil liability and civil 
procedure.82 Also, the publication of the 2005 Green Paper and the 2008 White Paper 
and  the  discussions  around  these  and  other  policy  documents  of  the  Commission, 
while having some impact on the debate in the Member States, has so far not led to 
significant changes in the statutory rules prevalent in the Member States. Further, the 
Impact Study confirms that there is little likelihood that the effects of Option 4 would 
add up to much more than those of the baseline scenario of Option 1, under which no 
EU action is foreseen.83 

The shortcomings of a non-regulatory initiative could neither be avoided if in parallel 
the Commission were to start a series of infringement proceedings under Article 258 
TFEU  to  ensure  compliance  with  the  acquis  communautaire  on  this  subject.  Such 
actions  would  remove  existing  obstacles  on  a  case  by  case  basis  and  would  only 
foster  change  of  provisions  that  do  not  comply  with  the  principle  of  effectiveness. 
They would not indicate which measures can better ensure effective compensation. 

The rating of various impacts of Option 4 set out below reflects both  effective and 
rather ineffective persuasive effect. The rating is put in a range, from the hypothesis 
that all Member States follow the recommendations to the hypothesis that a few or 
no  Member  State  will  follow  the  recommendations.  The  scores  attributed  as  such 
entail an independent comparison of Option 4 with the baseline scenario of no action 
at  EU  level  (Option  1).  However,  Option  4  is  necessarily  interconnected  with  both 
the baseline scenario and with Option 3, to which its measures are identical. If few or 
no Member States decide to follow the measures recommended under Option 4, its 
effects  coincide  with  that  of  the  baseline  scenario  of  no  EU  action  (Option  1). 
Therefore,  the  lower  end  of  the  range  of  scores  attributed  to  Option  4  corresponds 
with the likely impacts of Option 1. For the explanation of these scores, reference is 
made to Tables 2 and 3 above. As explained in the previous paragraphs, the adoption 
of Option 4 is more likely to lead to the effects at the lower end of the range rather 
than those at the higher end of the range. 

If, on the other hand, all Member States decide to follow the recommendations, the 
effects of Option 4 could be close to those of Option 3, where the same measures are 
laid down in a legislative proposal. However, account should be taken of the fact that 
even if all Member States implement the recommendations, divergent choices will be 
made  among  the  Member  States  as  to  the  exact  measures  to  be  taken,  leading  to 
reduced legal certainty, lower efficiency of judicial systems and access to justice as 
well as a potential increase in litigation costs.84 Therefore, the upper end of the range 
will  not  necessarily  equal  the  score  assigned  to  Option  3.  In  order  to  avoid  a 
repetition  of  arguments,  reference  is  made  to  tables  6  and  7  on  the  assessment  of 
option 3: in the Tables 8 and 9 below it is explained why the upper end of the range 
is lower than the score of Option 3, where applicable.  

Table 8: Benefits of Option 4 

82 
83 
84 

See, e.g., Impact Study, Part III, section 2.5. 
See Impact Study, Part III, section 2.5.1 and Table 79. 
The risks related to fragmented national legislations are explained in Sections 3.2 and 3.3 above. 

EN 

50 

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Benefits achieved/ 
problem 
addressed 

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

1.  Ensuring 
full 
of 
compensation 
the  entire  harm 
suffered 

0 / + 

2.  Protection  of 
effective 
public 
enforcement 

0 / + 

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

The  upper  end  of  the  range  is  lower  than  under  Option  3  because  if  the 
implementation is left to the Member States on a voluntary basis, the resulting 
measures are likely to diverge to some extent. This divergence may affect the 
willingness of victims to seek redress and may thus reduce the likelihood that 
full compensation is obtained in all Member States 

Without  a  legislative  measure  at  EU  level,  the  balancing  exercise  is  left  to 
national courts on the basis of national law: this risks leading to fragmentation 
of  the  applicable  rules.  Given  that  the  Commission  and  NCAs  jointly  enforce 
the  EU  antitrust  rules  through  the  ECN,  a  soft  law  approach  would  fail  to 
to  safeguard  effective  public 
the 
achieve 
enforcement 

legal  certainty  necessary 

Increased 

3. 
awareness, 
enforcement, 
deterrence 
legal certainty 

and 

0 / + 

The  upper  end  of  the  range  is  lower  than  under  Option  3  because  of  lack  of 
legal  certainty  and  awareness  in  cross  border  cases,  caused  by  likely 
divergence between Member States 

4. Access to justice 

0 / + 

The  upper  end  of  the  range  is  lower  than  under  Option  3  because  the  likely 
divergent  options  in  the  different  Member  States  may  discourage  victims  to 
seek redress in other Member States than their own 

5.  Efficient  use  of 
the judicial system 

0 / + 

The upper end of the range is lower than under Option 3 because of the likely 
divergence in rules between Member States 

6.  A  more 
playing field 

level 

0 / + 

Differences  between  Member  States  may  even  become  wider  if  they  act 
differently on the recommendations85 

7.  Positive  impact 
on 
and 
SMEs 
consumers  

0 / + 

The  upper  end  of  the  range  is  lower  than  under  Option  3  because  diverging 
rules  in  the  Member  States  may  cause  additional  difficulties  for  victims  to 
initiate proceedings in other Member States  

8. 
economic 
and innovation 

Stimulating 
growth 

0 

Table 9: Costs of Option 4 

Costs 

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

The persistent divergence of national rules does not entail significant benefits 
for the internal market. 

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

1. Litigation costs  

0 / - - 

The upper range is higher than under Option 3 because divergent measures in 
the Member States produce higher litigation costs in cross-border cases 

2. Administra-tive 
burden 

0 / - 

See explanations in the tables on Options 1 and 3 for the ratings in this table 

3. Error costs 

0 / - 

See explanations in the tables on Options 1 and 3 for the ratings in this table 

85 

The experiences since the White Paper, as described in Section 3.2 and Annex 3 of this report show that 
Member States are expected to act differently on recommendations.  

EN 

51 

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4. Implementation 
costs 

0 / - 

See explanations in the tables on Options 1 and 3 for the ratings in this table 

EN 

52 

   EN 

 
 
7. 

COMPARING THE OPTIONS 

7.1. 

Comparing the policy options and assessment of the preferred option 

7.1.1. 

Summary comparison of the options and identification of the preferred option 

139. 

140. 

141. 

142. 

143. 

86 
87 

In Chapter 6, the four policy options have been scored on the basis of a number of 
different criteria. In order to determine the preferred option, this section will provide 
a short comparison between the options. 

A preference for binding EU action 

It is clear from the above assessments that options envisaging EU legislative action 
(Options  2  and  3)  are  preferred  over  options  that  do  not  envisage  EU  legislative 
action  (Options  1  and  4).  In  this  respect,  whereas  Option  4  (recommendations  and 
good practices) envisages some EU-action and Option 1 entails the baseline scenario 
of  zero  action  at  EU  level,  the  Impact  Study  confirms  that  there  is  little  likelihood 
that  the  effects  of  Option  4  would  add  up  to  much  more  than  those  of  Option  1.86 
Even  if  under  Option  4  some  progress  is  made  towards  achieving  the  policy 
objectives  of  this  initiative,  the  shortcomings  of  Options  1  and  4  in  comparison  to 
Options 2 and 3 largely coincide.  

The  main  issue  related  to  Options  1  and  4  is  that  the  current  broad  divergence 
between  national  legislations  relating  to  actions  for  damages  would  persist.87  This 
would  be  problematic  in  terms  of  the  effectiveness  of  damages  actions  due  to 
divergent national legislations. As to Option 1, this is confirmed in the Impact Study, 
which finds that the level of corrective justice would be very low, while deterrence 
may increase only very slightly over the next few years.  

The broad divergence in legislation is described in more detail in Section 3.2 above. 
It  is  equally  explained  why  no  significant  change  in  the  situation  of  divergent 
national provisions is to be expected if no EU action in the field of antitrust damages 
actions  is  taken  (the  baseline  scenario,  Option  1).  Furthermore,  on  the  basis  of  the 
experience after the White Paper (also further described in Section 3.2), it cannot be 
expected  that  soft  law  at  the  EU  level  would  significantly  change  the  current 
situation.  After  the  White  Paper,  very  few  Member  States  have  taken  measures  to 
improve the effectiveness of antitrust damages actions; the vast majority of Member 
States  have  not  taken  any  action  whatsoever.  Moreover,  these  measures  concerned 
only  specific  elements  of  the  White  Paper's  suggestions  and  varied  largely  among 
Member States. There are no indications that adoption of yet another act of EU soft 
law on the subject would significantly change this situation. 

As  a  result,  both  Options  1  and  4  would  cause  the  internal  market  to  remain 
fragmented in terms of the level of judicial protection due to the uneven playing field 
and,  as  a  result,  prone  to  forum-shopping  (this  problem  is  further  described  in 
Section  3.3  above).  Also,  divergence  between  national  legislations  would  cause 
significant  burdens  to  be  borne  by  SMEs  and  consumers,  who  would  continue  to 

See Impact Study, Part III, section 2.5.1 and Table 79. 
Whereas the recommendations of Option 4 might lead to more Member States taking certain measures 
than would be the case under Option 1, it would most likely still lead to a broad divergence in national 
legislations as each Member State would be free to choose in relation to which issues it would like to 
take measures and the content of such measures. 

EN 

53 

   EN 

 
                                                 
144. 

145. 

146. 

147. 

148. 

suffer from inadequate access to justice, in particular in cross-border cases.88 Finally, 
there would be little or no positive macro-economic impact. 

Furthermore,  when  taking  no  EU  action  as  foreseen  under  the  baseline  scenario 
(Option 1), the uncertainty following the Pfleiderer ruling of the Court as to the use 
of documents from the file of a competition authority in actions for damages would 
persist. This uncertainty and its potential consequences are described in Section 3.1 
and Annex 2 of this report. The legal uncertainty may be a negative factor having an 
impact  on  the  public  enforcement  of  EU  competition  law,  in  particular  on  the 
competition authorities' leniency programmes.  

As  described  above,  experience  shows  that  EU  soft  law  in  the  field  of  antitrust 
damages actions has not had the effect that Member States take adequate measures. 
Quite on the contrary, hardly any action is taken and where measures were adopted, 
these varied widely from one Member State to another. Such inconsistencies are also 
emerging in the case-law on disclosure of documents from the file of a competition 
authority in actions for damages. There is therefore no indication that soft law would 
be  sufficient  for  all  Member  States  to  take  adequate  measures  to  protect  effective 
public  enforcement.  The  need  to  regulate  the  interaction  between  the  public  and 
private  enforcement  of  competition  law,  thus  ensuring  the  effectiveness  of  both 
systems, would therefore not be fulfilled when choosing Options 1 or 4.  

In  conclusion,  even  though  under  Options  1  and  4,  the  administrative  burden, 
litigation costs and error costs would be likely to remain at a relatively low level (all 
due  to  the  quasi-absence  of  damages  actions),  the  achievement  of  the  policy 
objectives  would  be  very  limited  and  important  problems,  with  regard  to  the 
protection  of  effective  public  enforcement  as  well  as  in  relation  to  the  effective 
private enforcement, would persist. 

A preference for a separate, but horizontal approach to collective redress 

The  preference  for  an  option  including  EU  legislative  action  points  to  Option  2  or 
Option  3.  Before  discussing  and  comparing  the  benefits  of  these  Options,  it  is 
necessary to assess the main difference among the measures they contain, namely the 
provision of a competition-specific system of collective redress. 

In the public consultation on the White Paper, consumer associations have expressed 
themselves  in  favour  of  both  opt-in  group  actions  and  respresentative  actions,  in 
order  to  enhance  the  opportunities  to  effectively  obtain  compensation.  Collective 
redress  mechanisms  have  been  seen  as  essential  mechanisms  in  this  respect. 
Businesses and business associations, however, generally fear that collective actions 
will  only  increase  litigation  to  the  detriment  of  business.  The  results  of  the  2011 
public  consultation  of  collective  redress  show  the  same  image:  consumers  are  in 
favour and urgently call for EU action in the field, whereas business generally holds 
that  there  is  no  need/justification  for  EU  action  on  collective  redress.  Among 
Member  States,  the  views  are  divided,  whereas  the  five  national  competition 
authorities that responded are all in favour of introducing collective redress.  

149. 

Option  2  contains  two  complementary  means  of  collective  redress  which  would  be 
specific  to  actions  for  damages  for  infringements  of  EU  competition  law.  Option  3 
contains  no  such  means,  referring  instead  to  horizontal  initiatives  on  collective 
redress. While Option 2 is clearly more advantageous in providing immediate means 

88 

See Impact Study, Part III, section 2.1.  

EN 

54 

   EN 

 
                                                 
150. 

151. 

of redress to victims such as consumers and SMEs, it is also necessary to assess this 
measure against the more general objective of the Commission to foster a coherent 
EU policy on collective redress, 

Taking  into  account  the  results  of  the  public  consultation  and  in  particular  the 
position  taken  by  the  Parliament  in  its  Resolution  of  2  February  2012,89  a  separate 
horizontal  approach  appears  currently  more  appropriate  than  a  competition-specific 
solution. The main reason is that the field of 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  (e.g.  high  litigation  costs  in  comparison  to  the  individual  damage)  exist 
also in other  fields  of  law,  such  as consumer law or  environmental  law.  Therefore, 
the basic principles applicable to collective redress can, to a large extent, be common 
to all these fields of law.  

A horizontal instrument may also avoid unnecessary fragmentation of national civil 
laws and provide consumers and SMEs with a mechanism to obtain effective redress 
through collective actions in all fields where this is considered necessary. As such, a 
horizontal intiative would ensure coherence on collective redress across all fields of 
law at the EU level. However, this does not affect the need  for the Commission to 
take characteristics specific to a certain field of law into account. In so far as specific 
provisions  are  considered  necessary  in  relation  to  –  for  example  –  the  field  of 
competition  law,  these  provisions  could  be  laid  down  in  a  separate  chapter  of  such 
horizontal instrument or in subsequent separate legal instruments.  

A preference for a more balanced system of public and private enforcement 

152.  While  the  preference  for  a  coordinated  approach  to  collective  redress  points  at 
Option  3,  it  is  also  necessary  to  assess  the  benefits  and  costs  of  the  other  specific 
measures of the options that include legislative action. As explained in section 5.3.2. 
above, Option 3 is to a large extent based on Option 2, but in addition optimises the 
interplay between public and private enforcement by regulating access to evidence in 
the file of a competition authority. Option 3 also considers to facilitate the claimant's 
burden of quantifying antitrust harm by introducing a rebuttable presumption of harm 
in  cartel  cases.  It  also  introduces  measures  to  further  stimulate  consensual  dispute 
resolution.  On  the  basis  of  the  above,  it  must  be  concluded  that  both  Option  2  and 
Option  3  fulfil  to  a  large  extent  the  policy  objectives.  Both  options  effectively 
address  the  main  obstacles  that  currently  hinder  effective  redress  for  victims  of 
antitrust  infringements,  building  on  European  legal  traditions.  In  comparison  to  the 
baseline scenario of no EU action in the field (Option 1), both Option 2 and Option 3 
take measures to improve the effectiveness of the private enforcement of competition 
law. These measures will be discussed below. 

153. 

First  of  all,  both  Option  2  and  Option  3  improve  the  possibilities  for  claimants  to 
obtain access to the evidence they need to substantiate their claim, by providing for 
rules  on  disclosure  of  specified  categories  of  evidence,  based  on  fact-pleading  and 
proportionality. In the public consultation on the White Paper, respondents from the 
consumer  side,  a  number  of  law-firms  and  even  business  respondents  that  had 
allegedly been victims of anticompetitive conduct, identified the limited possibilities 
as regards disclosure as one of the main obstacles standing in the way of effectively 
exercising  the  EU  right  to  full  compensation.  These  respondents  encouraged  the 

89 

See footnote 24. 

EN 

55 

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Commission  to  go  further  than  the  system  provided  for  in  the  White  Paper  (and 
proposed  by  Options  2  and  3),  by  loosening  the  conditions  to  obtain  a  disclosure 
order. Nevertheless, respondents from the business side considered the rules from the 
White  Paper  not  to  be  restrictive  enough  and  asked  for  further  measures  to  avoid 
'fishing expeditions' and to protect confidential information. Options 2 and 3 choose 
the  middle  ground  between  the  opinions  from  the  consumer-side  and  those  of  the 
business-side, providing for a system that significantly improves the possibilities for 
victims to obtain the necessary evidence, without being overburdensome or costly for 
the defendants. 

The  disclosure  rules  proposed  under  Option  2  and  3  will  constitute  a  significant 
improvement  for  the  effectiveness  of  private  enforcement  in  almost  all  Member 
States. Nevertheless, as the rules in Options 2 and 3 would be minimum standards, 
those Member States having a more far reaching system could maintain this system. 
For  further  information  on  the  rules  applicable  to  disclosure  in  the  Member  States, 
reference is made to section 3.2.  

Options  2  and  3  both  allow  standing  for  indirect  purchasers,  in  order  to  make  sure 
compensation  is  awarded  to  the  entities  who  actually  suffered  damage.  This  rule  is 
endorsed  by  almost  all  stakeholders;  only  8  of  the  respondents  to  the  public 
consultation  of  the  White  Paper  suggested  to  limit  standing  to  direct  purchasers. 
Allowing standing of indirect purchasers is in conformity with the applicable law in 
the vast majority of Member States. 

In  connection  with  this,  the  passing-on  defence  is  available  for  the  infringer  that 
shows  that  the  damages  claimant  has  passed-on  part  or  the  whole  of  the  illegal 
overcharge.  Nevertheless,  as  the  proof  of  passing  on  is  hard  for  both  parties,  it  is 
considered fair to put the burden of proof on the party infringing competition law by 
introducing a rebuttable passing-on presumption in favour of the indirect purchaser.  

In  the  public  consultation  on  the  White  Paper,  the  availability  of  the  passing-on 
defence  has  generally  been  supported  by  all  respondents.  Furthermore,  as  to  the 
facilitation of the burden of proof of passing on, consumer association and other non-
business  respondents  held  that  whereas  it  is  difficult  for  both  the  claimant  and  the 
defendant  to  prove  the  pass  on,  and  this  is  thus  an  important  obstacle  for  indirect 
purchasers to obtain compensation, the statutory simplification of the burden of proof 
should benefit the victims, otherwise it would result in the infringer taking advantage 
of  its  illegal  conduct,  and  retaining  the  illegal  overcharge.  Businesses  and  business 
associations  have  generally  expressed  reservations  against  such  facilitation  in  the 
burden of proof, because of the risk of double or multiple compensation. In view of 
the fact that the risk of undercompensation is currently deemed more important than 
the risk of overcompensation, as well as the fact that indirect purchasers would have 
significant  difficulties  to  prove  passing-on, Options  2  and  3  introduce  a  facilitation 
on the burden of proof.  

As discussed in section 3.2 above, the status of the passing-on defence is unclear in 
most Member States due to lack of legislation and case-law on the topic, even though 
there are no legal obstacles to such defence. As to the burden of proof of the passing-
on  defence  in  those  Member  States  where  it  is  allowed,  different  national  systems 
exist  (see  section  3.2  above).  The  rules  provided  for  in  Options  2  and  3  therefore 
constitute  a  necessary  harmonisation  of  the  national  rules,  and  a  facilitation  of 
actions for damages. 

154. 

155. 

156. 

157. 

158. 

EN 

56 

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159. 

160. 

161. 

162. 

163. 

164. 

Option 2 and 3 both facilitate follow-on actions by providing for rules on limitation 
periods after the finding of infringement by a competition authority or a review court 
and for binding effect for the final infringement decisions of NCAs.  

In  the  public  consultation  on  the  White  Paper,  potential  claimants  have  expressed 
themselves in favour of the introduction of such rules on limitation periods, whereas 
some  business  associations  and  law-firms  argued  that  a  new  limitation  period  for 
follow-on  actions  would  jeopardize  legal  certainty.  However,  none  of  the 
respondents have contested that clarifying rules on limitation periods would have a 
positive effect on the possibilities to obtain full compensation.  

Currently, only 6 Member States provide for specific limitation periods for follow-on 
cases.  These  limitation  periods  differ  in  system  (suspension  of  ordinary  limitation 
period  or  separate  limitation  period)  and  in  duration.  The  other  21  Member  States, 
however,  do  not  provide  for  such  limitation  periods  at  all,  which  may  hinder  the 
possibility to bring follow-on actions for damages because the limitation period has 
already expired. In other Member States this is corrected by case-law, which sets the 
starting  point  of  the  ordinary  limitation  period  at  the  moment  the  infringement 
decision  has  become  final.  Therefore,  the  rules  proposed  by  Options  2  and  3  as 
regards  limitation  periods  would  constitute  a  significant  improvement  in  most 
Member States. 

The binding effect of NCA decisions has been one of the more controversial issues in 
the  public  consultation  on  the  White  Paper.  The  main  criticism  is  that  such  rule  is 
running counter to the independence of the judiciary or that it constitutes a potential 
violation  of  the  rights  of  defence.  As  to  decisions  of  NCAs  from  other  Member 
States, some stakeholders pointed at different standards among authorities across the 
EU.  Nevertheless,  it  should  be  noted  that  a  significant  number  of  respondents 
(among  which  consumer  associations,  law  firms  and  other  respondents  from 
jurisdictions where a similar provision already exists) recognize the usefulness of this 
measure  not  only  for  damages  claimants,  but  also  for  the  efficient  and  consistent 
application of competition rules.  

National  legislation  on  binding  effect  of  NCA  decisions  is  at  the  moment  very 
divergent: there is one Member State where both its own and other NCA decisions 
have binding effect, 10 Member States in which the final decisions of their own NCA 
have  binding  effect  but  those  of  other  NCAs  do  not  and  16  Member  States  where 
NCA  decision  do  not  have  binding  effect.  In  those  Member  States  their  evidential 
value  ranges  from  a  rebuttable  evidentiary  presumtion  to  constituting  merely  "a 
view"  on  the  facts  and  the  law.  The  rule  on  binding  effect  of  NCA  decisions 
proposed  by  Options  2  and  3  would  thus  constitute  an  important  means  of 
harmonising  national  legislation  and  making  follow-on  actions  for  damages  more 
effective. 

Both  options  provide  for  measures  improving  the  interplay  between  public  and 
private  enforcement  in  comparison  to  the  baseline  scenario  (Option  1).  Such 
measures  include  an  enhanced  protection  against  disclosure  in  actions  for  damages 
for documents from the file of a competition authority and a limitation of liability of 
successful  immunity  applicants.  In  the  public  consultation  on  the  White  Paper, 
respondents  (apart  from  consumer  associations)  generally  deemed  the  protection  of 
corporate statements from disclosure to be an essential conditions for the success of 
leniency  programmes  and  thus  an  important  guarantee  for  effective  public 
enforcement  of  EU  competition  law.  The  limitation  of  liability  of  immunity 

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57 

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recipients  is  a  debated  topic  in  the  public  consultation  on  the  White  Paper. 
Nevertheless,  it  is  generally  considered  that  the  measure  is  a  positive  incentive  to 
apply  for  leniency,  and  thus  to  have  a  positive  effect  on  public  enforcement. 
However,  some  respondents  thought  that  the  measure  would  provide  an  excessive 
benefit for the immunity recipient. 

165. 

Both  options  provide  safeguards  avoiding  abuse  of  litigation  and  unmeritorious 
claims.  As  such,  they  have  a  direct  positive  impact  on  the  fundamental  right  to 
effective  judicial  protection  laid  down  in  Article  47,  first  paragraph  of  the  Charter 
and in Article 19(1), second subparagraph, TEU. 

166.  When comparing the two options, Option 2 is a bit stronger as regards achieving the 
policy  objective  of  ensuring  full  compensation  of  the  entire  harm  suffered.  This  is 
due not only to the introduction of a competition specific system of collective redress 
discussed above, but also to fewer limitations on disclosure of evidence in relation to 
documents  from  the  file  of  a  competition  authority  (i.e.  settlement  submissions  are 
not  protected  under  Option  2;  Option  2  limits  disclosure  during  investigations  of 
competition authorities).  

167. 

168. 

169. 

Option  2  is  stronger  as  regards  efficient  use  of  the  judicial  system  and  the  positive 
impact  on  SMEs  and  consumers.  The  objectives  of  access  to  justice,  a  more  level 
playing field and the macro-economic impact are achieved alike under Options 2 and 
3. 

However,  Option  3  generally  provides  for  a  more  balanced  system.  It  contains  an 
overall improvement of the possiblity to obtain access to evidence, while offering a 
stronger  protection  of  effective  public  enforcement,  by  protecting  more  documents 
from the file of the competition authorities from disclosure in actions for damages. 
As  to  settlement  submissions,  stakeholders  responding  to  the  question  on  the 
interplay  between  public  and  private  enforcement  of  competition  law  in  the  2011 
public  consultation  on  collective  redress  confirmed  that  the  settlement  programme 
could  be  weakened  by  the  stimulation  of  private  enforcement  in  broadly  the  same 
way as the leniency programme. In a similar manner, some respondents to the public 
consultation  on  the  White  Paper  indicated  that  the  attractiveness  of  NCA  and  EU 
settlement procedures could be adversely affected by the strengthening of the private 
enforcement of competition law.  

Because of its limited scope, such additional protection is considered not to make it 
impossible  or  excessivly  difficult  for  victims  of  a  competition  law  infrirgement  to 
obtain  compensation  for  the  harm  they  suffered.  The  protection  is  therefore 
considered to be compatible with the right to effective judicial protection laid down 
in  Article  47,  first  paragraph  of  the  Charter  and  in  Article  19(1),  second 
subparagraph,  TEU.  Furthermore,  the  introduction  of  a  rebuttable  presumption  in 
relation to the existence of harm in cartel cases and the introduction of a rule that the 
burden and level of proof and of fact-pleading required for the quantification of the 
harm  cannot  render  the  exercise  of  the  claimant's  rights  to  damages  practically 
impossible  or  excessively  difficult,  make  it  more  likely  that  compensation  is 
awarded. A balanced system fostering both effective public and private enforcement 
of competition law brings about benefits to growth, productivity and innovation. 

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170. 

In terms of costs, Option 3 scores better than Option 2. Litigation costs90 are reduced 
by  the  introduction  of  the  rebuttable  presumption  in  relation  to  quantification  of 
harm. Also, error costs and implementation costs are lower under Option 3, because 
Option  3  does  not  foresee  the  introduction  of  a  sector-specific  framework  of 
collective redress. The administrative burden is lower under Option 3 as the interests 
of public enforcement are better protected. The below table provides for an overview 
of the scores of the four options. 

Table 10: Summary of impacts of Policy Options 1-4  

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 
SMEs and consumers  

impact  on 

8.  Stimulating  economic 
growth and innovation 

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

Option 1 

Option 2 

Option 3 

Option 4 

0 

0 

0 

0 

0 

0 

0 

0 

+ + + 

+ + 

+ + 

+ + + 

0 / + 

0 / + 

+ + + 

+ + + 

0 / + 

+ + + 

+ + + 

+ + + 

+ + 

0 / + 

0 / + 

+ + + 

+ + + 

0 / + 

+ + + 

+ + 

+ + 

+ + 

0 / + 

0  

Costs  

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

Option 1 

Option 2 

Option 3 

Option 4 

1. Litigation costs 

2. Administrative burden 

3. Error costs 

4. Implementation costs 

0 

0 

0 

0 

- - 

- - 

- 

- - 

- 

- 

0 / - 

- 

0 / - - 

0 / - 

0 / - 

0 / - 

171. 

The comparative assessment of the four options shows that Option 3, in combination 
with the non-binding guidance on damages quantification as identified in Section 5.4, 
is the most suitable option. It achieves better than any other option the objectives that 
have  been  set  out,  producing  the  benefits  outlined  in  this  impact  assessment  at  the 
lowest  comparative  cost,  and  taking  into  account  the  concerns  and  some  of  the 
suggestions that have been put forward during the public consultations. 

90 

See Section 7.1.2 for a more detailed assessment of the litigation costs of the preferred option. 

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59 

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172. 

173. 

The potential benefits of the preferred option in the attainment of the objective of full 
compensation can be estimated by reference to the data on foregone compensation by 
year  from  the  impact  study  cited  above.91  It  was  estimated  that  foregone 
compensation in the EU ranges from €5.7 to  €23.3 billion per year. The improvement 
of the procedural framework under the preferred option does not include competition 
specific  systems  of  collective  redress  available  throughout  the  EU  to  facilitate 
consumer  claims.  In  this  situation,  although  it  is  not  possible  to  predict  the 
quantitative  chance  of  damages  recovery,  it  is  safe  to  conclude  that  the  improved 
procedural  framework  will  still  produce  an  increased  compensation  benefit 
comprised  within  the  range  indicated,  which  embodies  a  conservative  estimate  and 
thus also takes into account the reduced benefits due to the absence of competition 
specific  collective  redress  mechanisms.  Maintaining  the  assumption  of  a  potential 
reduction  of  cartels  by  5%  due  to  increased  deterrence,  the  negative  consumer 
welfare impact of such infringements could be additionally reduced by € 1.32 to 3.45 
billion per year. 

There are two different reasons to predict that the impact of the preferred option will 
remain  within  the  ranges  indicated  by  the  impact  study.  The  lower-bound  of  the 
broad  range  of  foregone  compensation  already  incorporates  a  number  of  restrictive 
assumptions,  which  compensate  for  the  possible  lack  of  mass  consumer  claims  in 
those countries where this is not currently provided by national law. Moreover, the 
data from the impact study on foregone compensation and welfare impact are based 
on  an  average  annual  amount  of  cartel  fines,  which  is  then  elaborated  through  the 
application  of  a  detection  rate,  an  overcharge  to  fine  ratio,  and  refined  by  other 
criteria.  In  recent  years,  cartel  fines  have  for  a  variety  or  reasons  increased  (e.g. 
longer  duration  and/or  wider  geographic  scope  of  the  cartel,  bigger  companies 
involved, etc): from the average annual fines considered by the study, amounting to 
€1.248  billion,  in  2012  the  cartels  found  by  th e  Commission  have  been  sanctioned 
with  a  total  of  €  1.875  billion  in  fines  (with  an  average  over  the  years  2008-2012 
increased  to  €1.832  billion  per  year).  Thus,  the  same  methodology  would  produce 
higher  impacts  on  the  levels  of  compensation  to  be  expected  from  an  initiative  on 
private enforcement. 

7.1.2.  Litigation costs of the preferred option 

174. 

The fact that it is not possible to quantify the litigation costs of the preferred option 
in detail, explains the essentially qualitative assessment. However, on the basis of the 
available data, drawing in particular on the Impact Study92, the following can be said 
as to the potential magnitude of litigation costs. As most of the available quantitative 
information  on  litigation  costs  originates  from  the  US,  those  figures  are  taken  as  a 
starting point. 

On litigation and litigation costs 

175. 

An often quoted source for litigation cost estimates in US private antitrust actions is 
the  Georgetown  Project,  which  provided  estimates  of  litigation  costs  for  both 
settlements and trials93. As part of this detailed empirical exercise, it was found that 
in the US, claimant's lawyers's fees in private antitrust actions were in the range of 10 

91 
92 
93 

See Section 0. 
Impact Study, pages 85-89 and pages 150-152. 
The Georgetown Private Antitrust Litigation Project and Study (1973-83).  

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176. 

177. 

178. 

to 20% of the awards.94 Further, opportunity costs for parties, such as the time spent 
by  their  executives  on  these  matters,  has  been  estimated  to  range  between 
approximately 50 and 75% of the lawyers' fees, while the court costs are estimated at 
a  few  percent  of  the  awards.95  On  this  basis,  one  could  conclude  that  between  35-
75% of the awards is ‘dissipated’ through litigation costs in the US.96  

The  US  system  is  of  course  characterized  by  a  set  of  measures  that  affect  the 
magnitude of litigation costs and that are neither present nor proposed in Europe. For 
example,  in  the  US,  claimant's  lawyers'  fees  are  often  awarded  on  the  basis  of  a 
percentage  of  the  award,  while  in  Europe  pacta  de  quota  litis  are  generally  not 
allowed.97 Also different rules regarding evidence98 and lower court costs99 have an 
impact  on  litigation  costs.  Taking  these  differences  into  consideration,  it  is  safe  to 
assume  that  even  after  the  introduction  of  the  measures  suggested  in  the  preferred 
option, litigation costs in Europe will not go beyond 10 to 20% of the awards.100  

Considering now the overall level of litigation, a US-style system, where litigation is 
encouraged  through  e.g.  multiple  damages  awards,101  asymmetric  fee-shifting, 
extensive discovery and opt-out class actions, scores high on the deterrence scale as 
it very strongly encourages litigation. However, this high level of litigation is a costly 
way  to  achieve  the  corrective  justice  objective.  The  various  measures  and  legal 
mechanisms  retained  in  the  preferred  option  differ  in  its  significant  aspects  very 
strongly  from  the  US  model,  thereby  limiting,  if  not  excluding  unmeritorious 
actions. As  a  result,  the  preferred  option  will  lead  to  a  significantly  lower  level  of 
litigation and litigation costs than what is witnessed in the US.  

The  impact  of  the  four  policy  options  on  litigation  costs  have  been  assessed  in 
Section 6.2, taking the said differences with the US-system as a starting point. Of the 
options involving EU-legislative action, Option 3 scores the best, due to the fact that 
the litigation costs of individual claimants are reduced as a result of the shift of the 
burden of proof with regard to the existence of harm in cartel cases, the facilitation of 
consensual  dispute  resolution  and  the  fact  that  Option  3  does  not  foresee  the 
introduction of sector-specific measures on collective redress.  

179. 

However, in relation to the base-line of no EU action is foreseen, the preferred option 
(Option  3)  will  lead  to  some  increase  in  litigation  costs  due  to  an  increase  in  the 

94 

95 
96 

97 
98 
99 

100 

101 

On this basis Salop and White (1986) estimated that the total annual costs of private antitrust litigation 
in the US amounted to approximately US$250 million for 1973-1983 (in 1984 dollars).  
Court costs in the U.S. have been estimated at 5.5% of the (untrebled) award (Impact Study, page 89). 
The lower end of this range is calculated on the basis of lawyers’ fees amounting to 10% of the award 
for each party, an opportunity cost equal to 50% of these fees. The upper end is obtained assuming that 
lawyers' fees are 20% of the award for each party, that the opportunity cost amounts to 75% of these 
fees. For both, court costs account for 5% of the award.  
For exceptions, see the Impact Study, page 88. 
Ibidem 
For instance, the Impact Study indicates on page 89 that "in Europe, court costs are often expressed as a 
percentage of the damage award, which can range – depending on the country and on the value of the 
claim – from 2% to 6%."  
See  the  Comparative  Study,  paragraph  I(viii)  on  p.96,  which  suggests  that  the  cost  of  bringing  an 
antitrust claim is lower than 10% of the value of the claim in most EU countries, although it is higher in 
the UK and Ireland.  
In systems with multiple damages (like the US), it may be profitable for the claimant to file a suit, even 
if  the  probability  of  winning  the  case  is  small.  Indeed,  if  it  prevails,  the  award  would  be  very  high. 
While  multiple  damages  thus  increase  deterrence,  they  encourage  cases  with  little  merit  and  hence 
increase litigation costs, see e.g. the Impact Study, page 88. 

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number of lawsuits. The structure and amount of fees for litigation (and out-of court 
activity  connected  to  it)  vary  across  Member  States,  so  it  is  difficult  to  provide  an 
exact estimate. However, as a proxy, it is interesting to consider the expected impacts 
of reforming the system of private enforcement in the UK, as currently envisaged in 
a  consultation  paper.102  The  option  of  improving  the  framework  for  private  actions 
by  introducing  rules  on  the  relationship  with  public  enforcement  and  encouraging 
ADR (without introducing public opt-out collective actions) is estimated to lead to an 
increase  in  average  annual  costs  for  participants  of  £17,7  million  (€21,35  million) 
against  total  benefits  of  £61,4  million  (€74  million)  in  increased  deterrence 103  and 
cartel prevention, and £296 000 (€357 000)  in public sector benefits.  

Impact of the preferred option on the number of damages actions 

Given the complexity of establishing a competition law infringement, it is realistic to 
assume that antitrust damages actions will usually be follow-on actions. Under that 
assumption,  the  upper  ceiling  of  the  number  of  actions  for  damages  that  can  be 
initiated  equals  the  number  of  cases  in  which  the  Commission  or  the  NCAs  take  a 
decision  establishing  an  infringement.  Since  2007,  NCAs  took  on  average  55 
infringement decisions per year and the Commission 8. However, only very few of 
those cases have so far led to an antitrust damages action. In relation to NCA cases, 
we are aware of damages actions being brought in less than 10% of these cases. As 
regards  Commission  cases,  it  seems  that  no  follow-on  damages  actions  have  been 
brought  in  relation  to  more  than  two  thirds  of  the  infringements  found  by  the 
Commission.104  Furthermore,  as  far  as  the  latter  category  of  follow-on  actions  is 
concerned,  they  rarely  cover  all  victims:  indeed,  whereas  the  Commission  decision 
usually finds an infringement for the whole EEA (or at least a substantial part of it), 
damages  actions  are  brough  by  or  on  behalf  of  victims  from  only  one  or  more 
Member States. Given these data, the most extreme theoretical effect of the current 
Antitrust  Damages  Initiative  would  be  that  it  results  in  actions  for  damages  in  all 
remaining cases, covering all victims of those infringements.  

Such an increase is, however, not to be expected. In Member States which currently 
have  a  regime  favourable  to  actions  for  damages  (like  the  UK  where  there  are 
favourable  regimes  for  disclosure  of  evidence  and  collective  actions),  experience 
shows that the number of cases in which actions for damages are initiated does by no 
means coincide with the total number of decisions taken by the Commission and the 
NCA.  In  fact,  the  recently  published  impact  assessment  by  the  UK  government  on 
private  actions  in  competition  law  indicates  that  only  few  cases  are  brought  before 
the national courts.105 Out of 21 findings of infringement by the OFT between 2000 
and  2007,  only  2  led  to  follow-on  cases  brought  by  injured  parties.106  Out  of  45 

180. 

181. 

102 

103 

104 

105 

106 

See  BIS  –  Department  for  Business  Innovation  &  Skills  –  "Private  actions  in  competition  law:  a 
consultation  on  options  for  reform"  and  the  Impact  Assessment  thereof,  both  available  at: 
http://www.bis.gov.uk/Consultations/consultation-private-actions-in-competition-law. 
In  the  UK  impact  assessment's  methodology,  increased  deterrence  is  calculated  as  a  multiplier  of 
damages, and particularly in a benefit of 5:1 in stand alone cases, and 1:1 in follow-on cases.  
In  the  absence  of  any  EU-wide  obligation  of  parties  and/or  national  courts  to  inform  national  or 
European  authorities  of  damages  actions  brought,  this  figure  is  only  an  approximation,  based  on 
anecdotal information. Moreover, this figure does not take account of informal settlements, which rarely 
are made public. 
Department for Business, Innovation & Skills, Impact Assessment, Private actions in competition law: a 
consultation on options for reform, April 2012, paragraph 22. 
Ibid, paragraph 25. It should be noted, however, that settlement may have been reached in other cases. 

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182. 

companies  harmed  by  a  breach  of  competition  law,  only  five  companies  finally 
decided to bring an action, most commonly because the expected costs of litigation 
did not outweigh the benefits.107  

The  same  reasoning  can  be  applied  by  victims  in  relation  to  the  current  Antitrust 
Damages Initiative. Furthermore, smaller sized victims, such as SMEs, might fear for 
their  good  business  relationship  with  infringers  if  they  sue  them  in  actions  for 
damages. Therefore, the implementation of the preferred option is expected to have 
the effect of increasing actions for damages, but not causing mass litigation such as 
in  the  US.  Finally,  the  fact  that  out-of-court  settlements  are  fostered  by  the  current 
Antitrust  Damages  Initiative  supports  the  conclusion  that  the  increase  in  litigation 
and related costs will be moderate. 

7.1.3.  Transposition costs for the Member States 

183. 

"Transposition costs" refers to the likely costs incurred by Member States in adapting 
national law in order to implement the measures proposed under the preferred option. 
For the purposes of this analysis: 

• 

• 

• 

• 

‘High  transposition  costs’  indicates  that  significant  changes  to  national  laws, 
regulations or administrative practices or structural changes, such as setting up 
an  agency  or  making  recurrent  budgetary  costs,  are  required  in  order  to 
implement  the  proposed  measures  in  the  Member  States’  domestic  legal 
system; 

"Low  transposition  costs"  indicates  that  a  measure  would  only  require  minor 
adaptations  in  the  national  legal  systems  because  of  its  limited  impact  or 
because of already existing similar laws, regulations or administrative practices 
under national law; 

No  transposition  costs  are  envisaged  where  the  requirements  of  a  specific 
measure  are  already  met  in  the  Member  State(s),  where  the  envisaged 
instrument  is  of  a  non-binding  nature  or  where  the  measure  in  question 
reproduces  the  acquis  communautaire,  and  should  therefore  be  already 
complied with by the Member States;  

The intermediate indicators of "medium" (between high and low) transposition 
costs  and  "very  low"  (between  low  and  no)  transposition  costs  will  also  be 
used. 

As  shown  in  table  below,  the  current  Antitrust  Damages  Initative  does  not  require 
Member  States  to  make  significant  or  structural  changes.  Hence,  all  transposition 
costs in relation to the current Antitrust Damages Initiative are rather limited. Where 
the  table  indicates  that  differences  may  exist  among  Member  States,  reference  is 
made to section 3.2 above, where these differences are described.  

Table 11: Overview of transposition costs 

Proposed Measures 
under the Preferred 
Option 

Assessment of Transposition Costs 

107 

Ibid, paragraph 24. 

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Standing of direct 
and indirect 
purchasers 

Joint and several 
liability and 
limitation thereof 
for immunity 
recipients 

Rules on access to 
evidence (inter 
partes disclosure) 

Acquis communautaire: no new transposition costs. 

Depending on the existing legal framework in the Member States, the introduction of joint 
and several liability for co-infringers will entail low or no transposition costs.  
Transposition  costs  of  measures  concerning  the  limitation  of  the  civil  liability  of  the 
immunity  recipient  depends  on  the  existing  situation  under  national  law.  For  Member 
States that do not provide any form of limitation of civil liability: medium transposition 
costs.  Member  States  that  already  provide  for  such  mechanisms  would  only  have  to 
apply these to immunity recipients: low transposition costs. 

Some form of disclosure is or should already be available under the legal system of the 
Member  States  in  some  areas  of  law  (i.e.  intellectual  property  rights  enforcement,  for 
which  rules  on  disclosure  are  part  of  the  acquis  communautaire  under  Directive 
2004/48/EC).  In  these  cases,  should  disclosure  rules  not  yet  be  available  in  antitrust 
damages actions, Member States would only need to expand the scope of application of 
rules  on  disclosure,  also  adapting  them  to  the  specificities  of  the  envisaged  measures: 
medium transposition costs. Where Member States already have disclosure rules for 
antitrust damages actions along the  lines of the envisaged measures, the transposition 
costs will even be lower.  

Binding effect of 
final decisions of 
NCAs 

If  a  Member  State  already  grants  the  binding  effect  before  national  courts  of  final 
decisions  by  NCAs:  no  transposition  costs.  In  Member  States  that  recognise  binding 
effect  only  to  the  decisions  adopted  by  domestic  NCAs,  the  transposition  costs  of 
extending  that  effect  also  to  final  decisions  of  other  NCAs  are  considered  very  low.  In 
those Member States where no such effect is provided for at all, transposition costs are 
considered low because a decision by a national competition authority already bears a 
strong persuasive effect on national courts.  

Full single damages  Acquis communautaire: no new transposition costs. 

Passing-on defence 
and rebuttable 
presumption of 
passing on of the 
illegal overcharge 
to the indirect 
purchaser 

In  most  Member  States  it  is  not  clear  whether  or  not  a  passing-on  defence  can  be 
invoked  in  antitrust  damages  actions.  However,  where  not  explicitly  excluded,  this 
defence could probably be allowed pursuant to the general principles underlying national 
tort rules according to which the burden of proof lies with the party invoking the defence, 
hence  very  low  transposition  costs.  If  a  Member  State  directly  or  indirectly  excludes 
such defence: medium transposition costs.  
Introducing a rebuttable presumption that the illegal overcharge has been passed-on is 
something yet absent in most national legal systems. However, this is in essence a rebut 
of  the  burden  of  proof,  that  would  shift  from  the  injured  party  to  the  infringer.  The 
application  of  this  technique  (rebuttable  presumption)  to  antitrust  damages  actions 
brought by indirect purchasers would not imply any major change in the legal systems of 
the Member States: medium transposition costs. 

Rules on limitation 
periods 

To the extent that the envisaged measures implement the EU principle of effectiveness, 
that is part of the acquis communautaire and thus entails no new transposition costs. 
For  what  concerns  the  possibility  to  claim  compensation  after  a  final  decision  by  the 
Commission or a NCA, the provision of a new limitation period would raise some issues 
only  in  those  cases  where  the  limitation  period  has  expired  before  the  start  of  public 
proceedings  (in  other  cases,  a  suspension  pending  an  investigation  of  an  NCA  would 
allow for a similar effect). As this is rarely the case: low transposition costs. 

Rebuttable 
presumption of 
harm caused by 
cartels 

Introducing a rebuttable presumption that in cartel cases harm exists shifts the burden of 
proof to the party which most likely has the relevant information. The application of this 
technique  (rebuttable  presumption)  would  not  imply  any  major  change  in  the  legal 
systems of the Member States: low transposition costs. 

Non-binding 
framework on 
damages 
quantification 

The  provision  of  non-binding  guidance  on  the  quantification  of  damages  by  its  very 
nature does not require any implementation activity on the part of the Member States: no 
transposition costs. 

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Rules on 
Consensual Dispute 
Resolution 

Consensual dispute resolution mechanisms exist in all Member States. The introduction 
of rules to stimulate recourse to consensual settlements, and their co-ordination with the 
rules  on  joint  and  several  liability,  would  thus  not  entail  significant  modifications  in 
national legal orders: low transposition costs. 

7.2. 

Choice of legal instrument 

7.2.1.  The options 

184. 

Having  identified  the  adoption  of  a  legislative  proposal  at  the  EU  level  as  the 
preferred option, it is necessary to assess which particular instrument would be most 
suitable  in  the  area  of  antitrust  damages  actions:  a  regulation,  a  directive  or  a 
combination of the two. The assessment of these options takes account of which one 
most effectively achievemes the objectives set out above, the costs (in particular the 
implementation  costs  for  the  Member  States)  and  the  effects  in  terms  of 
simplification or complication of the existing legal framework. 

7.2.2.  Regulation 

185. 

186. 

The advantage of introducing the preferred option through a regulation is clearly its 
direct applicability that would ensure the elimination of most obstacles in  the  legal 
framework as of the day of its entry into force. A regulation would also create a set 
of provisions that are equally available to all victims of antitrust infringements in the 
Member States. 

However, a regulation could require a detailed elaboration of all the aspects that are 
necessary for the concrete functioning of the envisaged redress system. It would thus 
constitute a separate body of law, next to the existing national rules on civil liability 
and  civil  procedure.  This  approach  is  quite  intrusive,  and  could  be  pursued  only  if 
proven necessary, especially if less intrusive measures, such a directive, would not be 
able to effectively achieve the objectives. 

7.2.3.  Regulation and Directive 

187. 

A  mix  of  instruments  would  allow  the  inclusion  in  a  regulation  of  some  of  the 
measures of the preferred option for which there exists little or no political discretion 
for Member States when implementing (e.g. binding effect of decisions of NCAs and 
the protection of corporate statements), therefore benefiting from direct applicability 
of  the  legislative  text  of  reference  throughout  all  the  Member  States.  At  the  same 
time,  other  measures  that  only  provide  for  minimum  requirements  and  allow  for 
more political discretion for Member States when implementing (e.g. disclosure and 
limitation periods) would be included in a directive, thus allowing Member States to 
properly adapting them into their own legal systems. 

188. 

The  major  pit-fall  of  this  option  is  that it  implies  an  increased  heterogeneity  of  the 
legal  framework  for  damages  actions,  which  would  oblige  parties  and  judges  in 
damages actions to rely on a set of multiple legal sources. 

7.2.4.  Directive 

189. 

A directive appears to be the most appropriate legal instrument to effectively bring 
forward  the  current  Antitrust  Damages  Initiative,  to  make  the  measures  work 
effectively  and  to  allow  for  a  smooth  adaptation  into  the  legal  systems  of  the 
Member States.  

190. 

A directive would allow the Member States to achieve the objectives and implement 
the  measures  of  the  preferred  option  into  their  national  substantive  and  procedural 

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law systems. This approach is less intrusive than any of the previous options, to the 
extent that Member States are left the choice  of  the most appropriate technical  and 
regulatory tools to implement the measures that are contained in the preferred option. 
It allows greater flexibility to take account of specificities of national legal systems. 
A  directive  would  furthermore  be  a  flexible  tool  to  introduce  a  minimum 
harmonisation  in  those  areas  of  national  law  that  are  crucial  for  the  functioning  of 
damages  actions,  ensuring  a  common  minimum  standard  all  across  the  EU,  but 
leaving room for further reaching measures to the individual Member States. 

Finally, a directive would avoid regulatory intervention in all those cases where the 
domestic  provisions  in  the  Member  States  are  already  in  line  with  the  proposed 
measures: in other words a directive would allow a targeted implementation.  

Proportionality and EU added value of the Preferred Option 

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

191. 

7.3. 

192. 

7.3.1. 

Subsidiarity: European added value 

193. 

The preferred option would have European added value for the following reasons: 

• 

• 

There is a significant risk that the lack of EU-wide regulation of the interaction 
between  public  and  private  enforcement  would  jeopardise  effective  public 
enforcement.  The  Pfleiderer  ruling  leaves  a  considerable  discretionary  power 
to the national courts, which could lead to important discrepancies between the 
Member  States  and  even  within  Member  States  regarding  the  disclosure  of 
evidence  from  the  files  of  competition  authorities.  This  causes  appreciable 
legal uncertainty, not only for claimants of damages before national courts, but 
also  for  defendants  and  competition  authorities  and  can  potentially  cause  a 
disincentive for cartel participants to cooperate with the competition authorities 
in  the  context  of  their  leniency  programme,  thereby  weakening  public  cartel 
enforcement. As leniency applicants can and may have to apply for leniency in 
several  jurisdictions  (given  the  flexible  case  allocation  system  within  the 
European  Competition  Network),  any  loophole  in  the  protection  of  corporate 
statements across the EU would be highly detrimental to public enforcement of 
competition  rules  in  Europe  as  a  whole.  Moreover,  discrepancies  between 
Member  States  might  also  have  a  negative  impact  on  the  exchange  of 
information between competition authorities within the framework of the ECN. 
It  is  thus  necessary  to  establish  certain  harmonised  rules  setting  a  common 
interaction  between  public  and  private  enforcement  applicable  in  all  Member 
States: this can only be achieved at the EU level.  

Experience  shows  that  in  the  absence  of  EU  legislation,  most  Member  States 
do  not  on  their  own  initiative  provide  for  an  effective  framework  for 
compensation  for  victims  of  infringements  of  Articles  101  and  102  of  the 
Treaty, as required by the Court in its Courage and Manfredi judgments. Since 
the publication of the Commission’s Green and White Paper, only few Member 
States  have  enacted  legislation  aimed  at  facilitating  antitrust  damages  cases. 
The actions at national level are also limited to specific issues and do not cover 
the  whole  range  of  measures  envisaged  by  the  current  Antitrust  Damages 

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• 

Initiative.  Despite  the  few  steps  taken  individually  by  some  Member  States, 
there is thus still a lack of effective compensation of victims of infringements 
of the EU antitrust rules. Only further incentives at European level can create a 
legal  framework  that  adequately  ensures  effective  redress  and  guarantees  the 
right of effective judicial protection as laid down in Article 47 of the Charter. 

There  is  currently  marked  inequality  between  Member  States  in  the  level  of 
judicial  protection  of  individual  rights  guaranteed  by  the  Treaty,  which  may 
cause  distortions  of  competition  and  hamper  the  proper  functioning  of  the 
internal  market.  The  result  is  an  evident  disparity  in  the  very  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 
between  Member  States  increases  if  few  Member  States  take  measures  in 
limited  fields  and  other  Member  States  do  not  take  action,  as  it  currently 
happens. The trans-national dimension of Articles 101 and 102 TFEU warrants 
measures at the EU level. 

7.3.2.  Proportionality  

194. 

195. 

In  terms  of  proportionality,  the  preferred  option  strikes  a  careful  balance  between 
maintaining the effectiveness of public enforcement of competition law, stimulating 
effective  protection  of  victims’  rights  to  compensation,  the  legitimate  interests  of 
potential defendants and third parties and important interests of Member States. The 
preferred  option  is  the  minimum  necessary  to  effectively  achieve  its  objectives:  to 
guarantee  effective  protection  of  public  enforcement  of  competition  law  across  the 
EU, as well as access for victims of competition law infringements to truly effective 
remedies to obtain full compensation for the harm they suffered.  

Those objectives are also achieved at the lowest possible costs. The costs imposed on 
citizens and businesses are proportionate to the stated objectives. A first step in this 
direction  was  already  taken  with  the  White  Paper  by  excluding  more  radical 
measures  (for  instance  multiple  damages,  opt-out  class  actions  and  wide  discovery 
rules).  The  efforts  to  strike  this  balance  were  widely  welcomed  during  the  public 
consultations.  The  additional  safeguards  included  in  the  preferred  option  further 
strengthen this balance by reducing potential costs (especially in terms of litigation) 
without jeopardising the effectiveness of the right to compensation. Finally, also the 
choice for a Directive as the instrument is in line with the principle that there should 
be as little intervention as possible, while attaining the objectives pursued. 

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8. 

196. 

197. 

198. 

199. 

200. 

201. 

202. 

MONITORING AND EVALUATION 

Extensive  research  and  consultation  preceded  the  adoption  of  the  Green  Paper,  the 
White  Paper  and  the  current  Antitrust  Damages  Initiative.  Three  wide-ranging 
studies,  four  public  consultations  with  a  high  number  of  responses  and  a  series  of 
additional consultations with stakeholders at Member State and EU levels, including 
public  authorities,  prominent  scholars  and  practitioners  from  the  private  sector, 
greatly contributed to the analysis and evaluation of the relevant issues.  

Following the adoption of the current Antitrust Damages Initiative, the Commission 
will continue monitoring the applicable legal framework for antitrust damages claims 
in  Europe,  as  much  as  it  will  monitor  the  implementation  of  the  Directive  in  the 
Member  States  once  adopted  and  the  effects  it  produces  in  terms  of  improved 
framework for damages actions for breach of the EU antitrust rules.  

The  monitoring  exercise  will  be  focussing  primarily  on  the  achievement  of  the 
objectives  set  out  in  Chapter  4.  Where  the  preferred  policy  option  targets  existing 
inefficiencies  and  obstacles  preventing  full  compensation  of  victims  of  antitrust 
infringements,  the  monitoring  process  will  aim  at  identifying  which  of  these 
obstacles  have  successfully  been  removed  and  to  what  extent.  This  analysis  should 
be  carried  out  through  the  monitoring  of  national  legislation  and  practice  in  the 
domains  of  civil  and  procedural  rules  and  through  continuous  contact  with  the 
stakeholders. 

Apart  from  the  applicable  legal  framework  for  antitrust  damages  actions,  other 
monitoring  indicators  will  include  the  extent  to  which  victims  of  competition  law 
infringements effectively obtain compensation and the optimisation of the interaction 
between  private  and  public  enforcement.  The  degree  of  effective  compensation 
should encompass both successful damages actions before national courts and out-of 
court settlements to the extent that the information is made available. 

The evaluation of the successful removal of obstacles to effective compensation on 
the basis of the increased instances in which infringers of the competition rules pay 
damages  to  injured  parties  can  also  be  performed  with  reference  to  a  number  of 
proxies.  These  include:  the  increase  in  overall  number  of  actions  for  damages 
brought before national courts and the increase in  the number  of Member States in 
which actions for damages are brought. The optimisation of the interaction between 
public and private enforcement will be evaluated through the  number of judgments 
of  national  courts  providing  adequate  protection  to  public  enforcement  instruments 
and the number of cases in which immunity recipients are not primarily targeted in 
actions for damages.  

Dialogue with stakeholders will also be necessary to monitor the effects in terms of 
increased  litigation  costs,  particularly  as  regards  false  positives,  i.e.  the  situation  in 
which undertakings that did not infringe competition law are obliged to pay damages. 
Although the safeguards in the preferred policy option are meant to avoid such false 
positives, we should be vigilant for any significant increase, since that would be an 
important indication of inefficient features of the devised system.  

The monitoring and evaluation process will provide useful information for potential 
future modifications. However, before carrying out a meaningful ex-post evaluation 
exercise it will be necessary to wait until the measures put forward at the European 
level are fully implemented and functioning in the Member States. Therefore, the ex-

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203. 

204. 

post evaluation will have to take place at least five years after the Directive has been 
adopted.  

The  implementation  process  in  the  Member  States  will  also  be  monitored  on  the 
basis  of  certain  provisions  included  in  the  legislative  initiative.  These  provisions 
require  the  Member  States  to  communicate  to  the  Commission  the  text  og  the 
provisions  that  implement  the  proposal,  as  well  as  explanatory  documents,  such  as 
correlation tables between those provisions and the proposal. When Member States 
adopt  those  provisions,  they  shall  contain  a  reference  to  the  proposal  or  be 
accompanied  by  such  a  reference  on  the  occasion  of  their  official  publication. 
Furthermore,  Member  States  shall  communicate  to  the  Commission  the  text  of  the 
main  provisions  of  national  law  which  they  adopt  in  the  field  covered  by  the 
proposal. 

Finally, implementation by Member States will be monitored through analysis of the 
relevant case-law of national courts. The parameters of the analysis should cover, in 
particular:  the  type  of  harm  for  which compensation  has  been  awarded  (actual  loss 
and/or  loss  of  profit);  the  type  of  victims  reached  by  awards  (businesses  and 
consumers); the type of action brought (stand alone or follow-on); reasons for which 
damages are not awarded by the court. The analysis of the relevant case-law should 
be facilitated by  Member  States by increasing compliance with the legal obligation 
under  Article  15(2)  of  Regulation  1/2003,  under  which  they  should  transmit  to  the 
Commission any judgment applying Articles 101 and 102 TFEU.  

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ANNEX 1 

Overview of the functioning of the Commission's leniency programme 

1. 

OVERVIEW 

Article 101 TFEU prohibits agreements between undertakings having as their object or effect 
the  prevention,  restriction  or  distortion  of  competition.  Secret  cartels  are  one  of  the  most 
harmful  infringements  of  this  provision,  as  they  have  as  their  object  the  very  distortions 
prohibited  under  Article  101,  such  as  price-fixing,  market-sharing  and  output-limiting 
agreements.  

The  Commission  enforces  EU  competition  rules,  together  with  National  Competition 
Authorities,  under  Council  Regulation  1/2003.  This  legal  instrument,  further  specified  by 
Commission Regulation 773/2004, also grants the Commission investigative powers (such as 
the  power  to  conduct  inspections  and  request  informations)  and  the  authority  to  impose 
administrative  fines  and  penalty  payments  on  infringers.  The  fines  imposed  by  the 
Commission  on  any  infringing  undertaking  can  amount  to  a  maximum  of  10  per  cent  of  its 
turnover.  

Despite its investigative powers, it may be very difficult for the Commission to detect harmful 
cartels in view of their secret nature. In order to encourage participants to cartels to cooperate 
with  the  Commission  bring  infringements  to  an  end,  the  Commission  launched  its  leniency 
programme in a 1996 Notice.108 Drawing inspiration from other jurisdictions, and building on 
its  discretionary  fine-setting  powers,  the  Commission  comitted  not  to  impose  fines,  or  to 
reduce  them,  on  undertakings  that  cooperate  by  giving  notice  of  the  Cartel  and  providing 
evidence  for  its  successful  prosecution.  Thanks  to  this  incentive,  several  high-profile  cartel 
cases have been detected and prosecuted by the Commission, which also imposed fines to the 
other cartel members amounting to several billion euros. The 1996 Notice has been replaced 
in  2002109  and  later  reviewed  with  the  adoption  of  the  most  recent  Commission  Leniency 
Notice in 2006 ('Leniency Notice').110  

2. 

FUNCTIONING OF THE EU LENIENCY PROGRAMME 

The  EU  leniency  programme  as  set  out  in  the  2006  Leniency  Notice  rewards  undertakings 
that co-operate with the Commission by disclosing their participation in an alleged cartel, also 
providing  information  and  evidence  and  fulfilling  other  requests  that  can  be  made  by  the 
Commission.  The  first  undertaking  coming  forward  may  thus  obtain  a  total  immunity  from 
the  fine,  provided  that  the  Commission  did  not  already  have  enough  evidence  to  find  an 
infringement as regards the alleged cartel, and that it is the first to provide contemporaneous 
incriminated  evidence  of  the  alleged  cartel  as  well  as  a  corporate  statement  containing 
information about it. When an undertaking does not qualify for total immunity (e.g. it is not 
the first to submit a request to the Commission, or it provides insufficient evidence), it could 
still  obtain  a  reduction  of  the  fine  in  view  of  its  contribution  to  the  investigation  of  the 
infringement.  

108 

109 

110 

18 July 1996, Commission Notice on the non-imposition or reduction of fines in cartel cases, [1996] OJ 
C 207, p. 4. 
19 February 2002, Commission Notice on Immunity from fines and reduction of fines in cartel cases, 
[2002] OJ C 45 p. 3. 
8 December 2006, Commission Notice on Immunity from fines and reduction of fines in cartel cases, 
[2006] OJ C 297 p. 17. 

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The  Notice  also  sets  out  the  procedure  for  the participation  to  the  EU  leniency  programme. 
The undertaking must approach the Commission's Directorate-General for Competition with a 
formal application for immunity. When an undertaking is willing to cooperate and needs time 
to collect the information and evidence required by the Leniency Notice, but does not want to 
lose its ‘place in the queue’ (i.e. it wants to avoid that other undertakings may issue a formal 
application  and  possibly  obtain  immunity  in  its  place),  it  can  request  a  marker.  If  the 
Commission  grants  the  marker  for  a  certain  period  of  time,  the  formal  application  by  the 
undertaking  will  be  regarded  as  having  been  made  at  the  time  it  first  approached  the 
Commission. 

When submitting formal applications for immunity, undertakings must provide evidence and 
information  on  the  cartel.  Other  than  the  evidence  in  its  possession,  the  applicant  must 
produce  a  corporate  statement,  i.e.  a  voluntary  submission  containing  the  information 
specifically  required  by  the  Notice.  This  information  includes  a  detailed  description  of  the 
alleged infringement, the identity of the participant undertakings and of individuals who have 
been involved in the cartel. 

Corporate  statements  are  sensitive  documents  not  only  because  they  contain  confidential 
information,  but  also  because  they  contain  the  acknowledgement  of  an  undertaking's 
participation to serious infringements of the EU competition rules. The disclosure of corporate 
statements could thus expose their authors to liability. In order to protect the information in its 
possession,  also  from  the  perspective  of  its  disclosure  in  other  jurisdictions,  and  not  to 
discourage undertakings from co-operating, the Notice envisages certain forms of protection. 
For instance, the corporate statement can be provided orally by the undertakings and recorded 
at  the  Commission's  premises.  Access  to  the  corporate  statements  is  also  restricted  by  the 
Notice to the addressees of a Statement of Objections (i.e. alleged co-infringers), that cannot 
obtain copies of the statements, and can only use the information for the purposes of judicial 
and administrative proceedings for the application of the EU Competition Rules.  

3. 

LENIENCY PROGRAMMES IN THE MEMBER STATES 

Alongside  the  leniency  programme  provided  for  at  EU  level  by  the  2006  Notice,  leniency 
programmes are currently operated at national level by the National Competition Authorities 
of  all  Member  States  except  Malta.  In  order  to  approximate  the  existing  provisions  on 
leniency  at  EU  and  national  level,  to  avoid  excessive  discrepancies  among  legislation  that 
could  discourage  applicants,  and  to  ensure  coordination  in  the  enforcement  of  the  Treaty 
provisions,  the  European  Competition  Network  ('ECN’)  has  developed  an  ‘ECN  Leniency 
model programme’,111 which sets out a framework against which national programmes should 
progressively  be  aligned,  which  concerns  both  the  conditions  for  the  granting  of  immunity 
and the provisional requirements thereof. 

111 

Available at http://ec.europa.eu/competition/ecn/mlp_revised_2012_en.pdf . 

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ANNEX 2 

Summary of the Pfleiderer judgment of the Court of Justice 

1. 

FACTS AND BACKGROUND 

On  21  January  2008,  the  German  Competition  Authority  (the  Bundeskartellamt)  imposed 
fines amounting to EUR 62 million on three European manufacturers of decor paper and on 
five  individuals  who  were  personally  liable  for  agreements  on  prices  and  capacity  closure. 
The decisions of the German Competition Authority became final. Pfleiderer is a purchaser of 
decor  paper  and  thus  alledgely  suffered  harm  as  a  result  of  the  cartel.  Following  the 
Bundeskartellamt’s decision, Pfleiderer submitted an application to the competition authority 
seeking full access to the file, with a view to preparing civil actions for damages. This request 
expressly  included  all  document  relating  to  the  leniency  application  which  had  been 
voluntarily submitted and the evidence seized. 

The  competition  authority  rejected  Pfleiderer's  request  and  restricted  access  to  the  file  to  a 
version  from  which  confidential  business  information,  internal  documents  and  leniency 
documents had been removed and refused access to the evidence which had been seized by 
the  Authority.  Pfleiderer  brought  an  action  before  the  District  Court  (Amtsgericht)  in  Bonn 
challenging this partial refusal.  

The Bonn District Court ordered access both to the leniency documents in the file and to the 
incriminating  material  and  evidence  collected.  The  enforcement  of  this  decision  and  the 
proceedings  were,  however,  stayed  by  the  District  Court,  as  it  referred  a  question  to  the 
European Court of Justice (the Court) for preliminary ruling. 

2. 

THE PRELIMINARY QUESTION  

The  preliminary  question  referred  by  the  Bonn  District  Court  was  whether  EU  competition 
law  has  to  be  interpreted  as  meaning  that  victims  of  cartels  may  not,  for  the  purpose  of 
bringing  an  action  for  damages,  be  given  access  to  leniency  documents  from  the  file  of  a 
national competition authority, within the framework of public enforcement proceedings. 

3. 

THE JUDGMENT OF THE COURT 

The Court held that neither the provisions of the Treaty on competition nor Regulation 1/2003 
lay  down  common  rules  on  leniency  or  on  the  right  of  access  to  leniency  documents.  As 
regards the leniency notice and the ECN model leniency programme, the Court held that these 
document  are  not  binding  on  Member  States.  The  Court  then  established  that  it  is  for  the 
Member  States  to  lay  down  and  apply  national  rules  on  the  right  of  access  to  leniency 
documents by victims of a cartel. In exercising this competence, Member States have to act in 
accordance  with  EU  law;  in  particular  they  may  not  render  the  implementation  of  EU  law 
impossible or excessively difficult or jeopardize the effective application of Articles 101 and 
102 TFEU.  

Leniency  programmes  were  recognised  as  useful  tools  to  uncover  and  bring  to  an  end 
infringements of the competition rules, thus serving the objective of effective application of 
Articles 101 and 102 TFEU. On the question whether the effectiveness of those programmes 
could be compromised if leniency documents were disclosed to persons seeking to bring an 
actions  for  damages,  the  Court  held  that  the  view  can  reasonably  be  taken  that  a  cartel 
participant would be deterred from cooperation with the competition authorities in the context 
of the leniency programme if these leniency documents were disclosed. 

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Nevertheless, the Court recalled that it is settled case-law that any individual has the right to 
claim  damages  for  loss  caused  to  him  by  violations  of  the  EU  competition  rules.  This  right 
constitutes  a  significant  contribution  to  the  maintenance  of  effective  competition  in  the  EU. 
As  such,  the  applicable  national  rules  for  disclosure  cannot  be  less  favourable  than  those 
governing similar domestic claims and cannot operate in such a way as to make it practically 
impossible or excessively difficult to obtain compensation.  

National  courts  thus  have  to  weigh  the  diverging  interests  in  favour  of  disclosure  of  the 
information  and  in  favour  of  the  protection  of  that  information  provided  voluntarily  by  the 
leniency applicant on a case-by-case basis, according to national law and taking into account 
all the relevant factors in the case. 

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ANNEX 3 

Overview of the most important measures for antitrust damages actions included in the 
legislative proposals in Austria, Germany and the United Kingdom 

1. 

AUSTRIA 

In early 2012, the Austrian government held a public consultation on proposed changes to the 
Austrian  competition  law  (Kartellgesetz  und  Wettbewerbsgesetz).  The  proposal  contains 
among  others  provisions  aiming  to  facilitate  both  'follow-on'  and  'stand-alone'  antitrust 
damages actions by: 

(a) 

(b) 

• 

• 

• 

• 

requiring the cartel court to publish its decisions (which is so far not the case 
and one of the major obstacles for bringing follow-on actions) 

introducing antitrust specific provisions for damages actions that foresee, inter 
alia: 

a binding effect of Commission and NCAs decisions on civil courts as regards 
the finding of an antitrust infringement; 

the  possibility  for  civil  courts  to  suspend  proceedings  pending  proceedings 
before the Commission or NCAs; 

the  suspension  of  the  limitation  period  for  damages  actions  until  six  months 
after a related public enforcement decision has become final; and 

the  payment  of  interest  from  the  time  the  harm  occurred  (to  exclude  that 
interest may be due only from a later moment, e.g., when the damages action 
was brought).  

(c) 

allowing  parties  to  seek  in  stand-alone  cases  a  declaratory  judgment  by  the 
cartel  court,  finding  a  competition  law  infringement,  in  view  of  bringing  an 
antitrust damages action before the competent civil court.  

2. 

GERMANY 

In  March  2012,  the  German  government  put  forward  a  legislative  proposal  for  an  8th 
Amendment  to  the  GWB  (the  German  act  against  restraints  on  Competition).  This 
Amendment foresees a specific right of action for consumer associations in the field of private 
enforcement. This right of action, which builds on an existing right for business associations, 
has the following features: 

(a) 

(b) 

It  is  specific  to  competition  law  (EU  and  national  law  is  covered).  While  it 
adopts an approach which has previously been used in other areas (notably in 
the law of unfair competition), the proposed rule is limited to an infringement 
of antitrust rules.  

It empowers consumer associations to bring the action. The legislative proposal 
makes explicit reference in this respect to the Consumer injunctions Directive 
(2009/22/EC)  as  well  as  to  a  similar  national  law  on  injunctions  in  consumer 
law  matters.  The  GWB  already  now  empowers  business  associations  in  a 
similar way and the legislative proposal contains in fact a clarification as to the 
scope of the empowerment of business associations. 

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(c) 

(d) 

(e) 

The aim of the action is the skimming-off of illicit profits. The defendant can 
raise as a defence that he already has paid compensation to private parties or 
that  the  illicit  profit  which  he  obtained  through  the  infringement  has  already 
been skimmed off through an action of the NCA (who has the power to make 
such an order). 

The  proceeds  of  the  action  are  to  be  paid  to  the  budget  of  the  federal 
government. The consumer and/or business association can nevertheless obtain 
reimbursement of their costs. 

In  its  explanatory  memorandum  for  the  legislative  proposal,  the  federal 
government  explicitly  mentioned  the  ongoing  debate  on  collective  redress  at 
EU level as a reason for making such proposal.  

3. 

UNITED KINGDOM 

On  24  April  2012,  the  UK  Government  (Department  for  Business,  Innovation  and  Skills) 
launched  a  public  consultation  on  ‘Private  Actions  in  Competition  Law:  A  Consultation  on 
Options for Reform’. The consultation document, as well as the January 2013 Government's 
response,  put  forward  the  UK  Government's  views  on  a  number  of  issues  relating  to  the 
private enfocement of competition law, in particular: 

(a) 

Competition-specific proposals on collective redress 

The UK Government believes there is a robust case for collective actions in the competition 
field,  and  does  not  favour  generic  'horizontal'  collective  redress.  This  reiterates  the  position 
expressed by  the UK  Government  in their reply to the Commission's public  consultation  on 
collective redress last year. 

The UK Government thus decided to introduce a limited opt-out collective actions regime for 
competition law infringements, particularly due to the dismal record of the pure opt-in model 
currently available to consumers in the UK. The Government also envisages the introduction 
of a new opt-out settlement regime for competition law in the CAT, similar to the model of 
the Netherlands, and to require that any opt-out settlement must be judicially approved.  

(b) 

Complementarity of public and private enforcement 

While  the  UK  Government  is  fully  committed  to  maintaining  the  public  enforcement  by 
competition authorities at the heart of the enforcement regime, it believes that private-sector 
led  challenges  to  anticompetitive  behaviour  should  be  encouraged  to  complement  public 
enforcement. As regards the interplay of public and private enforcement, the UK Government 
puts emphasis on the need to protect the effectiveness of the leniency programme. To this end, 
it  considers  protecting  certain  categories  of  leniency  documents,  andmiting  the  joint  and 
several  liability  of  immunity  recipients.  In  its  response  to  the  public  consultation,  while 
stressing  the  need  to  preserve  incentives  for  potential  leniency  applicants  to  cooperate  with 
antitrust investigations, the Government has announced its intention not to propose action at 
national  level  because  it  expects  the  Commission  to  take  an  initiative  on  this  issue.  Absent 
such  an  initiative,  or  in  case  of  a  significant  delay,  the  Government  will  consider  specific 
proposals.  

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ANNEX 4 

Detailed Summary of the Impact Assessment report for the White Paper on actions for 
damages for breach of the EU antitrust rules (IAWP)112 

1. 

INTRODUCTION 

In 2005, the Commission published a Green Paper on actions for damages for breach of the 
EU  antitrust  rules,  by  which  it  consulted  stakeholders  on  a  number  of  possible  measure  to 
remove  existing  obstacles  to  private  enforcement  of  Articles  101  and  102  TFEU.  These 
options  concerned  procedural  and  substantive  requirements  governing  actions  for  damages. 
Following  the  public  consultation  on  the  Green  Paper,  the  Commission  services  impact-
assessed  these  options  in  order  to  select  the  most  cost-efficient  bundle  of  suggestions  to 
overcome current obstacles to private enforcement, as put forward in the 2008 White Paper on 
actions for damages for breach of the EU antitrust rules. 

The  present  Impact  Assessment  Report  has  not  reviewed  options  that  had  already  been 
discarded because of ther excessive costs, insufficient benefits or unsatisfactory impact on the 
attainement  of  the  objectives.  The  conclusions  drawn  in  the  IAWP  are  shortly  summarised 
below, with the exception of the baseline option (zero action at EU level) and the option on 
non-regulatory measures, which have been reassessed during the current exercise.  

2. 

THE IAWP'S POLICY OPTION 1 

The first policy option assessed in the IAWP concerned legislative measures maximising the 
facilitation of claims and the incentives for victims. This option was meant not only to remove 
all  the  identified  existing  obstacles  to  private enforcement,  but  was  also  aimed  at  providing 
significant incentives for potential claimants to enforce their rights, as experimented in other 
jurisdictions.  Thus,  the  option  envisaged  fully-fledged  opt-out  class  actions,  by  which  some 
victims  were  allowed  to  claim  damages  on  behalf  of  all  injured  parties  except  those  that 
expressly  opted  not  to  be  represented.  As  a  further  incentive  to  claimants,  the  option 
suggested that they should never be liable for the defendant's costs even if they lost the case 
(unilateral  fee-shifting),  except  for  frivolous  or  vexatious  claims.  As  regards  access  to 
evidence,  the  option  allowed  for  broad  disclosure,  by  which  the  claimant  could  request 
relevant documents with a low threshold to obtain an order from the judge, i.e. only having to 
demonstrate  a  plausible  case.  The  passing-on  defence  was  not  accepted  under  this  option, 
allowing direct purchasers to always claim damages, but claims by indirect purchasers were 
also allowed as they are part of the acquis. The liability of the infringers did not require that 
they  acted  at  fault.  Finally,  limitation  periods  for  the  claim  were  set  at  20  years,  and  the 
decisions of NCAs were binding on civil courts. 

The  assessment  of  this  policy  option  resulted  in  undoubtedly  high  benefits  in  terms  of  full 
compensation and access to justice for victims, and significant benefits in terms of deterrence 
of  anticompetitive  conduct.  However,  due  to  the  potential  for  abuses  and  the  lack  of 
significant safeguards, the option was not deemed satisfactory in view of its sub-optimal use 
of the judicial system, but most notably for its high administrative and litigation costs, which 
were  deemed  to  be  excessive.  The  option  also  entailed  very  high  implementation  costs 
because  measures  such  as  full-fledged  opt-out  by  any  group  of  victim,  the  unilateral  fee-

112 

2  April  2008,  Commission  Staff  Working  Document  –  Impact  Assessment  Report  accompanying  the 
White Paper on Damages actions for breach of the EC antitrust rules, SEC (2008) 405. 

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shifting and the disclosure of evidence not tied to fact pleading are far from European legal 
traditions, thus requiring significant changes to the law of all Member States. 

3. 

THE IAWP'S POLICY OPTION 2 

The IAWP's Policy Option 2 was the basis upon which the White Paper was drafted, because 
it was identified as the bundle which could foster the attainment of  objectives at the lowest 
possible costs. Policy Option 2 allowed 2 complementary forms of collective redress, i.e. an 
opt-in collective actions, and a representative actions that could be brought on behalf of the 
victims  by  qualified  representative  bodies  such  as  consumer  associations.  The  disclosure  of 
evidence was based on an initial exchange of lists in which the parties indicdated the relevant 
evidence,  only  after  the  claimant  had  presented  reasonably  available  facts  and  evidence  in 
support of its allegations. Incentives for the claimant were also provided in the softer form of 
rebuttable  presumptions  on  fault  and  on  the  passing-on  in  case  of  claims  by  indirect 
purchasers.  The  decisions  of  national  competition  authorities  were  meant  to  be  binding  on 
civil  courts  throughout  the  EU.  Limitation  periods  were  set  at  five  years  from  the  date  on 
which  the  claimant  should  reasonably  have  been  aware  of  the  harm,  with  a  new  limitation 
period of  two years in case  of  public proceedings  on the infringement. A peculiarity of  this 
policy option was that it provided recovery of single damages (full compensation) except in 
case of cartels, when double damages would be allowed.  

As  anticipated,  the  assessment  of  this  option  showed  a  more  balanced  cost/benefit  ratio. 
Litigation  and  administrative  costs  were  significantly  lower  than  in  option  1  thanks  to  the 
provision of safeguards on collective redress, through the presumption of pass-on in case of 
claims  by  indirect  purchasers  while  allowing  the  passing  on  defence  in  case  of  claims  by 
direct purchasers, and by maintaining a ‘loser pays’ cost rule, with a discretionary power for 
the judge to shift fees on the defendant. Error costs and implementation costs of the option, 
however, remained high due to double damages in cartel cases, which are not consistent with 
the compensatory nature of tort litigation in Europe.  

4. 

THE IAWP'S POLICY OPTION 3 

The third policy option targeted the adoption of legislative measures of a more limited scope 
by  comparison  with  Option  2.  In  particular,  Option  3  envisaged  full  single  damages  rather 
than double damages in cartel cases; disclosure of specified categories of evidence based on 
fact-pleading. Different from Option 2, it did not establish a passing-on presumption in claims 
by indirect purchasers and it limited the binding effect of decisions of National Competition 
authorities to the domestic civil courts only. Limitation periods were similarly envisaged as in 
Option 2, except for the elimination of a new 2-year period in case of public enforcement. The 
collective  redress  measures  maintained  the  representative  actions,  but  did  not  retain  the 
complementarity with opt-in actions. 

On balance, the costs entailed by Option 3 were still lower, due to the further elimination of 
incentives  for  claimants,  even  in  the  form  of  rebuttable  presumptions  (e.g.  as  regards  the 
passing-on  presumption  for  indirect  purchasers).  However,  the  same  reasons  led  to  a  lower 
estimation  of  the  benefits  of  the  option,  which  would  not  significantly  foster  a  better  legal 
framework for all victims of competition law infringements and an insufficient level of access 
to  justice.  The  efficient  use  of  the  judicial  system  was  also  not  enhanced  because  of  the 
limited scope of the binding effect of decisions adopted by national competition authorities.  

However, some elements of Option 3 were estimated as worth retaining to correct the pitfalls 
of  Option  2  and  further  limit  its  costs  (e.g.  evidence  disclosure  based  on  fact-pleading;  no 

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double  damages).  Only  with  regard  to  costs  the  assessment  led  to  the  identification  of  a 
preferred option more similar to one of the other scenarios (i.e. non-regulatory intervention).  

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ANNEX 5 

Table 12: Overview of the Policy Options which were analysed in the 2008 IAWP 

Option 1:  

Option 2:  

Option 3:  

Option 4:   Option 5:

Damages   Double, all types of damage, 

including interest 

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

Full single 

Access to 
evidence 

Broad disclosure, low 
threshold 

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

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

Indirect 
purchaser  

Standing allowed 

Passing-on   Defence excluded  

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

Defence allowed  

Effect of 
NCA 
decisions 

Fault (once 
infringe-
ment esta- 
blished) 

Binding across EU 

Binding in own Member 
State 

Strict liability 

Rebuttable presumption; 
exoneration for excusable 
errors  

Strong probative value 
of finding of 
infringement 

Collective 
redress 

Opt-out class actions 

Opt-in collective + 
representative actions 

Representative actions 

Limitation 
period 

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

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

Minimum 5 years as of 
reasonable knowledge 
+ suspension 

Cost rule 

One-way shifting 

Loser pays, but judge may 
shift all costs 

Loser pays, but judge 
may shift part of costs 

Interaction 
with 
leniency 

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

No 
legislative 
measures, 
only identi- 
fication and 
recommen-
dation of 
good 
practices in 
line with 
Option 3 

No EU 
action at 
all 

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ANNEX 6 

Table 13: Overview of the Preferred Option in the 2008 IAWP 

Preferred Option 

Main objective(s) 

Further description 

Damages  

Full single 

Access to 
evidence 

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

Full 
legal 
compensation, 
certainty,  greater  awareness 
of the rules. 

Access 
justice, 
to 
appropriate and efficient use 
of the judicial system. 

Indirect 
purchaser  

Standing allowed  

Full compensation, access to 
justice, legal certainty 

Passing-on   Defence allowed 

facilitation of proof of 
passing-on in favour of 
indirect purchaser  

Full 
compensation, 
certainty, access to justice. 

legal 

Binding across EU 

Effect of 
NCA 
decisions 

Fault (once 
infringe-
ment esta-
blished) 

Rebuttable 
presumption 
exoneration  for  excusable 
errors  

Greater  awareness  of 
the 
rules, increased enforcement 
and  improved  compliance, 
efficient  use  of  the  judicial 
system, 
legal 
certainty 

increased 

Full compensation, access to 
justice 

Entitlement  to  damages  for  actual  loss,  loss  of 
profit plus interest. 

Upon  request  by  one  of  the  parties,  the  national 
court can order the disclosure of evidence held by 
the other party or by a third party. Based on fact-
pleading,  under  the  control  by  the  judge  on 
proportionality and necessity. 

Any individual can claim compensation for harm 
suffered,  hence  standing  for  both  direct  and 
indirect purchasers.  

If  the  direct  purchaser  has  passed  on  the  illegal 
overcharge resulting from an infringement to his 
own  customers,  the  infringer  can  invoke  it  as  a 
defence  against  a  damages  action  by  the  direct 
purchaser.  Conversely,  when  indirect  purchasers 
claim  compensation  from  the  infringer  they 
should benefit from a rebuttable presumption that 
the  illegal  overcharge  has  been  passed  on  to 
themin its entirety. 

National  courts  cannot  take  a  decision  running 
counter  to  a  final  finding  of  an  infringement  by 
an EU national competition authority. 

in  damages 

In  those  Member  States  that  provide  for  a  fault 
requirement 
an 
infringements  of  Article  101  or  102  TFEU  has 
been found, fault is presumed unless the infringer 
the 
can  show 
consequence of an excusable error. 

infringement  was 

cases,  once 

that 

the 

Collective 
redress 

Opt-in 
collective 
representative actions 

+ 

Full compensation, access to 
justice, 
and 
efficient  use  of  the  judicial 
system 

appropriate 

Complementary  collective  redress  mechanisms: 
collective actions by victims on an opt-in basis or 
representative  actions  brought  by  qualified 
entities designated in advance or authorised on a 
case by case basis by a Member State. 

Limitation 
period 

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

Access 
certainty 

to 

justice, 

legal 

Limitation  periods  cannot  start  to  run  before  the 
infringement  ceases  or  is  brought  to  an  end,  nor 
before  the  victim  can  reasonably  be  expected  to 
have knowledge of the infringement and the harm 
it  caused.  If  a  competition  authority  finds  an 
infringement  of  Article  101  or  102  TFEU, 
possibility  to  bring  an  action  within  two  year  of 
the final decision.  

Cost rule  No 

legislative  measure, 
and 
identification 
only 
recommendation  of  good 

Full compensation, access to 
justice,  efficient  use  of  the 
judicial system 

Member  States  should  reflect  upon  their  cost 
rules  and  consider  procedural  rules  fostering 
settlements as well as design means to avoid that 

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practices 
line  with 
in 
Option  3:  loser  pays,  but 
judge  may  shift  all  or  part 
of the costs 

the  loser-pays  rule  discourages  victims  from 
bringing a meritorious action. 

Interaction 
with 
leniency 

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

Greater  awareness  of 
the 
rules, increased enforcement 
and  improved  compliance, 
to  the  benefit  of  Europe's 
competitiveness. 

Corporate  statements  submitted  by 
leniency 
applicants  should  not  be  disclosed  in  a  damages 
action;  further  reflection  on  the  possibility  to 
limit liability of the immunity recipient only to its 
own direct and indirect purchasers.  

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ANNEX 7 

Glossary of terms 

Action for damages 

Action by which an injured party or someone acting on behalf of one or more injured parties 
brings a claim for damages before a national court. 

Antitrust 

Field  of  competition  law  and  policy.  In  the  EU  context,  ‘antitrust’  refers  both  to  the  rules 
governing  anti-competitive  agreements  and  practices  (cartels,  other  cooperation  agreements, 
distribution agreements, etc.) based on Article 101 TFEU and to the rules prohibiting abuses 
of (existing) dominant positions based on Article 102 TFEU. 

Cartel 

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.  

Collective redress 

A legal mechanism whereby claims (such as claims for damages) of a group of persons are 
brought  collectively  before  a  national  court  or tribunal  (private  enforcement  of  EU  antitrust 
rules). Collective redress can take several forms, such as representative actions, group actions, 
etc.  Representative  actions  are  brought  by  a  natural  or  legal  person  (e.g.  consumer 
organisations,  business  associations  or  ombudsmen)  on  behalf  of  a  group  of  persons  who 
claim  to  be  affected  by  an  antitrust  law  infringement.  Group  actions  are  actions  in  which 
several victims combine their individual claims into one single legal action.  

Consensual dispute resolution 

Out-of-court  resolution  of  a  dispute  between  private  parties  (in  this  case  the  victims  of  a 
competition  law  infringers  and  the  persons  having  infringed  competition  law).  Consensual 
dispute  resolution  covers  any  form  of  out-of-court  resolutions  of  disputes,  including 
settlement, mediation, arbitration and other forms of out-of-court resolution of disputes.  

Direct purchaser 

Natural  or  legal  person  having  purchased  the  goods  or  services  which  were  subject  of  an 
infringement  of  competition  law  directly  from  one  or  more  of  the  undertakings  having 
infringed competition law. 

Disclosure of evidence 

Process by which the national court can order a party to the proceedings or  a  third  party to 
submit to it and to the other party or parties to the proceedings pieces of evidence the former 
party has in its possession. The order can be issued on request of a party or ex officio. 

European Competition Network (ECN) 

The  competition  authorities  of  the  Member  States  (NCAs)  and  the  Commission  form  a 
network of public authorities: they act in the public interest and cooperate closely to protect 
competition.  This  network  is  a  forum  for  discussion  and  cooperation  in  the  application  and 

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enforcement  of  EU  competition  policy.  It  provides  a  framework  for  European  competition 
authorities  to  cooperate  in  cases  where  Articles  101  and  102  TFEU  are  applied,  and  for 
flexible rules on the allocation of cases between the authorities. It is the basis for creating and 
maintaining  a  common  competition  culture  in  Europe.  The  European  Competition  Network 
was created on the basis of Regulation No 1/2003. 

ECN Model Leniency Programme  

A document endorsed by the ECN members. It aligns the key elements of leniency policies 
within  the  ECN  to  increase  the  effectiveness  of  leniency  programmes  in  the  EU  and  to 
simplify  the  burden  for  applicants  and  authorities  in  case  of  multiple  filings.  The  Model 
Programme  sets  out  the  essential  procedural  and  substantive  elements  that  ECN  members 
believe  every  leniency  programme  should  contain.  The  ECN  authorities  made  a  political 
commitment to use their best efforts to align their leniency programmes with the ECN Model 
Leniency Programme or to introduce aligned programmes. However, this document is not a 
programme  as  such  under  which  applicants  could  apply  for  leniency  and  it  does  not  raise 
legitimate expectations. 

Fine 

A  monetary  penalty  imposed  by  a  Commission  or  NCA  decision  on  an  undertaking,  for  a 
violation of EU competition rules. 

Immunity recipient 

An undertaking receiving immunity from any fine to be imposed in application of a leniency 
programme. 

Indirect purchaser 

Natural or legal person which did not purchase the goods or services which were subject of a 
competition law infringement directly from one or more of the undertakings having infringed 
competition  law,  but  who  purchased  those  goods  from  the  direct  customer.  An  indirect 
purchaser  is  a  (direct  or  indirect)  customer  of  the  direct  purchaser  who  is  further  down  the 
distribution or supply chain. 

(Leniency) corporate statement 

A  voluntary  presentation  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. 

Leniency programme (See also Annex 1) 

A  programme  on  the  pasis  of  which  a  participant  to  a  secret  cartel,  independently  from  the 
other undertakings involved in the cartel, co-operates with the investigation of the competition 
authority,  by  providing  voluntary  presentations  of  its  knowledge  of  the  cartel  and  its  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. The Commission's current leniency programme is set out 
in the 2006 notice on immunity from fines and reduction of fines in cartel cases. 

Limitation period 

The  period  during  which  an  action  can  be  brought  before  a  national  court.  In  case  of  this 
impact  assessment,  limitation  periods  concern  the  period  during  which  injured  parties  of  an 
infringement of competition law can bring an action for damages to obtain full compensation 
for the harm they suffered as a result of such infringement.  

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National Competition Authority (NCA)  

National competition authorities (NCAs) are the authorities designated by the Member States 
pursuant to Article 35 of Regulation 1/2003 as responsible for the application of Article 101 
and 102 TFEU in their territories. EU law obliges Member States to ensure that NCAs are set 
up  and  equipped  in  such  a  way  that  the  provisions  of  Regulation  No  1/2003  are  effectively 
complied  with.  Together  with  the  Commission,  the  competition  authorities  from  Member 
States form the European Competition Network (ECN). 

National court 

A court or tribunal of a Member State that is authorised to seek a preliminary ruling from the 
Court of Justice of the European Union pursuant to Article 267 of the Treaty. 

Overcharge 

Any  positive  difference  between  the  price  actually  paid  and  the  price  that  would  have 
prevailed in the absence of an infringement of competition law. 

Passing-on defence 

A defence against a direct purchaser's damages claim, relying on evidence showing that the 
overcharge resulting from a cartel was passed on – fully or partially - by the direct purchaser 
to its own customers further down the distribution chain (the indirect purchasers).  

Quantification of harm 

The process by which the amount of harm suffered by the injured party is determined by the 
national court, and normally expressed in monetary terms. 

Rebuttable presumption 

A  means  of  evidence  by  which  the  existence  or  non-existence  of  a  fact  is  deemed  to  be 
proven, unless evidence to the contrary is brought. 

Regulation No 1/2003 

Council  Regulation  setting  out  the  main  rules  for  the  enforcement  of  EU  antitrust  rules 
(Articles  101  and  102  TFEU).  This  Regulation,  which  took  effect  on  1  May  2004,  has 
modernised the procedural rules governing how EU antitrust rules are enforced. It put an end 
to the notification system under which companies notified agreements to the Commission for 
approval  under  the  antitrust  rules.  Regulation  1/2003  entrusts,  in  parallel  with  the 
Commission, competition authorities of the Member States (NCAs) and national courts with 
the role of applying Article 101 and 102 TFEU. This means there is wide-spread enforcement 
of  the  same  set  of  rules  to  prosecute  cartels  and  other  anti-competitive  practices  throughout 
Europe.  Regulation  1/2003  also  forms  the  basis  for  the  European  Competition  Network 
(ECN) in the framework  of which the Commission and NCAs coordinate the application of 
EU antitrust rules. Regulation 1/2003 replaced Regulation No 17/1962. 

Settlement procedure 

The settlement procedure is a simplified procedure in cartel investigations, which results in a 
faster  handling  of  the  case  and  in  a  reduction  of  the  fines.  In  order  to  participate  in  this 
procedure, the undertakings involved have to acknowledge their participation in the cartel. 

Settlement submission 

A  voluntary  presentation  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 

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this  infringement,  which  was  drawn  up  specifically  as  a  formal  request  for  the  authority  to 
apply a simplified procedure and a reduction of the fine. 

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ANNEX 8 

Overview of the results of the Public Consultation on the White Paper on Antitrust 
Damages Actions (2008) 

On  2  April  2008,  the  Commission  published  for  public  consultation  a  White  Paper  on 
damages actions for breach of the EU antitrust rules. This overview summarises (I) the main 
trends in the submissions and (II) the specific suggestions received on the individual sections 
of the White Paper. 

1. 

MAIN TRENDS AMONG RESPONDENTS TO THE WHITE PAPER  

The White Paper triggered a large number of submissions (more than 170) by governments of 
several  Member  States,  national  parliaments,  national  competition  authorities,  judges, 
businesses  and  business  associations,  law  firms,  consumer  associations,  academics  and 
individuals. In terms of geographical spread, comments were issued by public authorities or 
stakeholders from almost all Member States. All the submissions are published on the website 
of DG Competition.113 

Of all the respondents, very few questioned the underpinning idea of the White Paper, namely 
that  in  most  cases  victims  of  competition  law  infringements  in  practice  do  not  obtain  the 
compensation they are entitled to under the Treaty. The majority of respondents agreed that 
something needs to be done to address this issue, while divergent opinions emerged as to the 
specific measures to be adopted. There was unanimous support for the approach of the White 
Paper  to  pursue,  as  primary  policy  objectives,  the  effective  compensation  of  victims  (not 
punishment of infringers) and the preservation of strong public enforcement. 

2. 

(a) 

SPECIFIC SUGGESTIONS ON INDIVIDUAL SECTIONS OF THE WHITE PAPER 

Standing: indirect purchasers and collective redress 

Standing for  indirect purchasers, already recognized in the case-law of the Court of Justice, 
did not give rise to many comments. As regards collective redress, a majority of respondents 
from  the  business  community  observed  that  the  mechanisms  proposed  in  the  White  Paper 
could increase litigation costs for business and that safeguards are necessary to avoid abuses. 
Consumer associations emphasised the need for collective redress mechanisms, possibly opt-
out representative actions, in order to provide effective compensation also for consumers, who 
typically  suffer  low-value  and  scattered  damage.  There  was  also  a  wide  support  for  a 
consistent approach to collective redress across different EU policy areas. 

(b) 

Access to evidence 

Many respondents from the business community warned that rules on inter partes disclosure 
should equally work for claimants and defendants in order not to unbalance their procedural 
position, and contended that safeguards should be put in place to avoid 'fishing expeditions' 
and  to  protect  confidential  information.  On  the  latter  issue,  some  suggested  protective 
mechanisms such as confidentiality rings or confidentiality orders. 

Other  respondents  (e.g.  consumer  associations  and  several  law  firms)  argued  that  the 
conditions for disclosure suggested in the White Paper are too strict, as they would still make 
it difficult for a claimant to bring a case, especially when he cannot rely on a prior finding of 

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http://ec.europa.eu/comm/competition/antitrust/actionsdamages/white_paper_comments.html. 

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an  infringement  by  a  national  competition  authority.  Victims  often  are  not  in  a  position  to 
know which precise categories of documents among those held by the infringer are needed to 
help proving the case. 

(c) 

Binding effect of final NCA decisions 

Many welcomed that the measure would foster consistent application of competition rules and 
legal certainty, and avoid unnecessary costs and delays due to re-litigation of the same issue. 
Other commentators criticized that a rebuttable presumption would be sufficient and more in 
line  with  the  role  of  the  judge.  Some  stakeholders  recommended  that  the  rights  of  defence 
should  be  fully  taken  into  account  when  considering  this  measure,  especially  in  view  of 
possible different standards of proof for civil courts and competition authorities. 

(d) 

Fault requirement 

Some stakeholders, especially among business respondents, argued that the fault requirement 
should  not  be  specifically  regulated  in  the  antitrust  sector,  but  should  follow  the  applicable 
general provisions of civil law. It was also argued that the proposed test of 'excusable error' 
could amount to a strict liability test, in particular in situations where self-assessment is not 
easy  for  firms.  Consumers,  some  Member  States  and  legal  practitioners,  on  the  other  hand, 
welcomed the Commission's proposal. Some of them suggested that an infringer should never 
be  allowed  to  escape  liability  on  grounds  of  fault  (referring  to  ECJ  case-law).  Many 
respondents called for a better definition of the excusable error test.  

(e) 

Damages 

All  respondents  welcomed  the  choice  of  compensation  and  single  damages  as  the  guiding 
principle of the White Paper. Some within the business community asked the Commission to 
clearly rule out punitive damages also under national law. Others argued that Member States 
should be left free to introduce them in their national legal order. 

The  vast  majority  of  respondents  welcomed  the  Commission's  commitment  to  produce 
guidance on the quantification of damages, as long as it is not binding and leaves judges to 
take account of the particularities of individual cases. Regarding quantification methods, for 
instance calculation of damages in the aggregate or based on the illicit gain was opposed by 
some companies but held necessary by consumer associations for the effective functioning of 
representative actions. 

(f) 

Passing-on of overcharges 

The passing-on of overcharges as a defence against damages claims was broadly welcomed, 
especially by business respondents.  

The  White  Paper  proposal  that  indirect  purchasers  should  benefit  from  a  rebuttable 
presumption  that  the  illegal  overcharge  has  been  passed  on  to  them  in  its  entirety  has  been 
contested in submissions by companies and business associations. It has been argued that such 
presumption would expose defendants to the risk of double or multiple compensation. Others 
stressed that, if the passing-on defence is allowed, a statutory facilitation of the proof for the 
victims  is  necessary,  while  others  stressed  that,  absent  a  facilitation,  the  infringer  would  on 
one side benefit from the defence and then not compensate anyone. 

To avoid multiple compensation, some suggested consolidating cases so that the arguments of 
direct and indirect purchasers could be heard in the same proceedings. Others proposed that 
the first claimant (either direct or indirect purchaser) is awarded the entire compensation and 
that the second claimant should sue the first to obtain his share. 

(g) 

Limitation periods 

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Several  respondents  welcomed  the  White  Paper's  suggestions  as  they  would  give  claimants 
the  necessary  time  to  file  a  lawsuit  after  an  NCA/Commission  decision.  Some  preferred  a 
suspension of the limitation period until the NCA/Commission decision is taken over a new 
limitation period starting then. Businesses and some law-firms argued that the provision of a 
new  limitation  period  in  follow-on  cases  may  not  be  in  line  with  needs  of  legal  certainty. 
Others suggested introducing, at European level, an objective limitation period running from 
the occurrence of the damage to ensure that at some stage claims would be time-barred in the 
interest of legal certainty.  

(h) 

Costs of damages actions 

Potential  claimants  agreed  that  Member  States  should  assess  their  cost  regimes  in  order  to 
address  the  obstacles  often  faced  by  victims.  They  recalled  that  the  cost  risk  of  antitrust 
damages  actions  is  often  the  main  disincentive  preventing  victims  from  seeking  redress.  A 
few  stakeholders  also  made  the  case  for  contingency  fees,  insurance  schemes,  purchase  of 
claims by third parties and public funding.  

Nevertheless,  most  respondents  from  industry  and  law  practice  stressed  their  opposition  to 
any revision of the loser-pays principle, seeing this general rule as a useful safeguard against 
abuses. Some argued for a derogation from the general rule in special circumstances based on 
the judge's discretion. Upfront cost orders were, however, widely rejected as an unjust burden 
on companies. 

There  was  broad  support  for  early  resolution  of  cases,  although  consumers  insist  that  fair 
settlements can only be reached if an effective framework for antitrust damages actions is in 
place. 

(i) 

Interaction between leniency programmes and actions for damages 

The  protection  of  corporate  statements  from  disclosure  was  generally  deemed  important  for 
the  success  of  leniency  programmes.  Some  suggested  extending  this  protection  to  all 
documents  submitted  by  leniency  applicants.  Other  submissions,  instead,  suggested  that 
private and public enforcement are two separate issues and that there are no grounds to protect 
leniency submissions from disclosure. 

A similar reasoning led several respondents to reject a limitation of liability for the immunity 
recipient,  if  it  is  formulated  as  a  limitation of  the  right  to  compensation.  Some  submissions 
from businesses welcomed this proposal as an incentive to apply for leniency. 

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