CELEX: 52013PC0404
Language: en
Date: 2013-06-11
Title: 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

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		52013PC0404
		
			Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union /* COM/2013/0404 final - 2013/0185 (COD) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1.           CONTEXT OF THE PROPOSAL
1.1.        General context
Regulation No 1/2003[1] gives effect to the EU rules
prohibiting anticompetitive agreements (including cartels) and abuses of
dominant positions (‘the EU competition rules’), which are laid down in
Articles 101 and 102 of the Treaty on the Functioning of the European Union (‘the
Treaty’), by setting out the conditions under which the Commission, the
national competition authorities (‘NCAs’) and national courts apply these
provisions in individual cases.
Regulation No 1/2003 gives the Commission
and the NCAs powers to apply Articles 101 and 102 of the Treaty[2]. The Commission can impose
fines on undertakings that have infringed these provisions[3]. The powers of the NCAs are set
out in Article 5 of Regulation No 1/2003. The application of the EU competition
rules by the Commission and NCAs is commonly referred to as the public
enforcement of EU competition law.
In addition to public enforcement, the
direct effect of Articles 101 and 102 of the Treaty means that these provisions
create rights and obligations for individuals, which can be enforced by the
national courts of the Member States[4].
This is referred to as the private enforcement of the EU competition rules.
Damages claims for breaches of Articles 101
or 102 of the Treaty constitute an important area of private enforcement of EU
competition law. It follows from the direct effect of the prohibitions laid
down in Articles 101 and 102 of the Treaty that any individual can claim
compensation for the harm suffered, where there is a causal relationship
between that harm and an infringement of the EU competition rules[5].
Injured parties must be able to seek compensation not only for the actual loss
suffered (damnum emergens) but also for the gain of which they have been
deprived (loss of profit or lucrum cessans) plus interest[6]. Compensation for harm caused
by infringements of EU competition rules cannot be achieved through public
enforcement. Awarding compensation is outside the field of competence of the
Commission and the NCAs and within the domain of national courts and of civil
law and procedure.
Compliance with the EU competition rules is
thus ensured through the strong public enforcement of these rules by the
Commission and the NCAs, in combination with private enforcement by national
courts.
1.2.        Grounds for and objectives
of the proposal
The present proposal seeks to ensure the
effective enforcement of the EU competition rules by
(i)           optimising the interaction
between the public and private enforcement of competition law; and
(ii)          ensuring that victims of
infringements of the EU competition rules can obtain full compensation for the
harm they suffered.
Optimising the interaction between the
public and private enforcement of competition law
The overall enforcement of the EU
competition rules is best guaranteed through complementary public and private
enforcement. However, the existing legal framework does not properly regulate
the interaction between the two strands of EU competition law enforcement.
An undertaking that considers cooperating
with a competition authority under its leniency programme (whereby the undertaking
confesses its participation in a cartel in return for immunity from or a
reduction of the fine), cannot know at the time of its cooperation whether
victims of the competition law infringement will have access to the information
it has voluntarily supplied to the competition authority. In particular, in its
2011 Pfleiderer judgment, the European Court of Justice (hereinafter: ‘the
Court’)[7],
held that, in the absence of EU law, it is for the national court to decide on
the basis of national law and on a case-by-case basis whether to allow the
disclosure of documents, including leniency documents. When taking such a
decision, the national court should balance both the interest of protecting
effective public enforcement of the EU competition rules and of ensuring that
the right to full compensation can be effectively exercised. This could lead to
discrepancies between and even within Member States
regarding the disclosure of evidence from the files of competition authorities.
Moreover, the resulting uncertainty as to the
disclosability of leniency-related information is likely to influence an
undertaking’s choice whether or not to cooperate with the competition
authorities under their leniency programme. In the absence of legally binding
action at the EU level, the effectiveness of the leniency programmes — which
constitute a very important instrument in the public enforcement of the EU
competition rules — could thus be seriously undermined by the risk of
disclosure of certain documents in damages actions before national courts.
The need to regulate the interaction of
private and public enforcement was confirmed in the stakeholders’ responses to
the public consultation on the 2008 White Paper on damages actions for breach
of the EU antitrust rules (‘White Paper’)[8]
and the 2011 consultation on a coherent European approach to collective redress[9].
The May 2012 resolution of the Heads of the European Competition Authorities
also stressed the importance of the protection of leniency material in the
context of civil damages actions[10].
The European Parliament repeatedly emphasised that public enforcement in the
competition field is essential, and called on the Commission to ensure that
private enforcement does not compromise the effectiveness of either the
leniency programmes or settlement procedures[11].
The first main objective of the present
proposal is thus to optimise the interaction between public and private
enforcement of the EU competition rules, ensuring that the Commission and the
NCAs can maintain a policy of strong public enforcement, while victims of an
infringement of competition law can obtain compensation for the harm suffered.
Ensuring the effective exercise of the
victims’ right to full compensation
The second main objective is to ensure that
victims of infringements of EU competition rules can effectively obtain
compensation for the harm they have suffered.
While the right to full compensation is
guaranteed by the Treaty itself and is part of the acquis communautaire,
the practical exercise of this right is often rendered difficult or almost
impossible because of the applicable rules and procedures. Despite some recent
signs of improvement in a few Member States, to date most victims of
infringements of the EU competition rules in practice do not obtain
compensation for the harm suffered.
As long ago as 2005, the Commission
identified, in its Green Paper on damages actions for breach of the EC
antitrust rules[12]
(‘the Green Paper’), the main obstacles to a more effective system of antitrust
damages actions. Today, those same obstacles continue to exist in a large
majority of the Member States. They relate to
(i)           obtaining the evidence needed to
prove a case;
(ii)          the lack of effective collective
redress mechanisms, especially for consumers and SMEs;
(iii)          the absence of clear rules on
the passing-on defence;
(iv)         the absence of a clear probative
value of NCA decisions;
(v)          the possibility to bring an
action for damages after a competition authority has found an infringement; and
(vi)         how to quantify antitrust harm.
Besides these specific substantive
obstacles to effective compensation, there is wide diversity as regards the
national legal rules governing antitrust damages actions and that the diversity
has actually grown over recent years. This diversity may cause legal
uncertainty for all parties involved in actions for antitrust damages, which in
turn leads to ineffective private enforcement of the competition rules,
especially in cross-border cases.
To remedy this situation, the second main
objective of the present proposal is to ensure that throughout Europe, victims of infringements of the EU competition rules have access to effective mechanisms
for obtaining full compensation for the harm they suffered. This will lead to a
more level playing field for undertakings in the internal market. In addition,
if the likelihood increases that infringers of Articles 101 or 102 of the
Treaty have to bear the costs of their infringement, this will not only shift
the costs away from the victims of the illegal behaviour, but will also be an incentive
for better compliance with the EU competition rules.
To achieve that objective, the Commission
put forward concrete policy proposals in its 2008 White Paper. In the ensuing public
consultation, civil society and institutional stakeholders such as the European
Parliament[13]
and the European Economic and Social Committee[14]
largely welcomed these policy measures and called for specific EU legislation
on antitrust damages actions[15].
1.3.        Existing provisions in the
area of the proposal
–                        
Council Regulation No 1/2003 on the
implementation of the rules on competition laid down in Articles [101] and
[102] of the Treaty
·              
Pursuant to Article 2, the burden of proving an
infringement of Article 101(1) or of Article 102 of the Treaty shall rest on
the party alleging the infringement. Should the defending party claim the
benefit of Article 101(3) of the Treaty, it shall bear the burden of proving
that the conditions of that paragraph are fulfilled. These rules apply both to
public enforcement and to actions for compensation for the harm caused by an
infringement of Article 101 or 102 of the Treaty.
·              
Article 15(1) provides that, in proceedings for
the application of Article 101 or 102 of the Treaty, national courts may ask
the Commission to transmit to them information in its possession. The
Commission Notice on the cooperation between the Commission and the courts of
the EU Member States in the application of Articles 101 and 102 of the Treaty[16] elaborates on the
interpretation and practical application of this provision.
·              
Article 16(1) provides that when national courts
rule on agreements, decisions or practices under Article 101 or Article 102 of
the Treaty which are already the subject of a Commission decision, they cannot
take decisions running counter to the decision adopted by the Commission.
National courts must also avoid giving decisions which would conflict with a
decision contemplated by the Commission in proceedings it has initiated. To
that effect, the national court may assess whether it is necessary to stay the
proceedings pending before it.
–                        
Council Regulation No 44/2001 contains rules on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters[17].
Under the conditions set out in that Regulation, courts of the Member States
have jurisdiction to hear antitrust damages actions, and judgments in such
actions are recognised and enforced in other Member States.
–                        
Council Regulation No 1206/2001 regulates the
cooperation between the courts of different Member States in the taking of
evidence in civil or commercial matters, thus including antitrust damages
actions[18].
–                        
Article 6(3) of Regulation No 864/2007 of the
European Parliament and of the Council contains rules on the law applicable in
antitrust damages actions[19].
–                        
Regulation 861/2007 of the European Parliament
and of the Council[20]
establishes a European procedure for small claims, intended to simplify and
speed up litigation concerning small claims in cross-border cases, and to
reduce costs.
–                        
Directive 2008/52/EC of the European Parliament
and of the Council requires Member States to provide for a possibility to
mediate in all civil and commercial matters, thus including antitrust damages
actions[21].
–                        
Article 15(4) of Commission Regulation No 773/2004[22] determines that documents
obtained through access to the file of the Commission shall only be used for
the purposes of judicial or administrative proceedings for the application of
Articles 101 and 102 of the Treaty. The Commission Notice on access to the file[23] provides for more detailed
rules as regards access to the Commission file and the use of those documents.
–                        
The Commission Notice on immunity from fines and
reduction of fines in cartel cases (the ‘Leniency Notice’)[24] contains rules on the
conditions under which undertakings can cooperate with the Commission in the
framework of its leniency programme in order to obtain immunity from or a
reduction of its fine in a cartel case. In paragraph 33 it determines that
access to corporate statements is only granted to the addressees of a statement
of objections, provided that — together with the legal counsels obtaining access
on their behalf — they do not make any copy by mechanical or electronic means
of any information in the corporate statement and that the information from the
corporate statement is solely used for the purposes mentioned in the Leniency
Notice. Other parties such as complainants are not granted access to corporate
statements. This specific protection of a corporate statement is no longer
justified when the applicant discloses its content to a third party.
Furthermore, the Commission Notice on the conduct of
settlement procedures in view of the adoption of Decisions pursuant to Article
7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (the ‘Settlement
Notice’)[25]
sets out the framework for rewarding cooperation with the Commission in the
conduct of proceedings commenced in view of the application of Article 101 of
the Treaty in cartel cases ('settlement procedure'). Its paragraph 39 contains
rules on the disclosure of settlement submissions to national courts.
2.           RESULTS OF CONSULTATIONS WITH
THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
2.1.        Consultation of interested
parties
Both the 2005 Green Paper and the 2008
White Paper triggered a broad debate among stakeholders, and a large number of
comments were submitted[26].
The public consultations showed broad support for the Commission’s general
approach to enabling antitrust damages actions. Respondents welcomed the
guiding principle of compensation and the consequential choice not to suggest
measures such as US-style class actions, wide pre-trial discovery or multiple
damages, which would pursue primarily an objective of deterrence. There was broad
acknowledgement of the obstacles that prevent effective redress for victims of
infringements of the competition rules. However, different opinions were voiced
as to the substantive measures suggested with a view to remedying the problems.
In 2011, the Commission held a public
consultation on a coherent European approach to collective redress[27]. In the wake of stakeholders' responses
and the position of the European Parliament[28],
the Commission opted for a horizontal approach on this matter rather than the
inclusion of competition-specific provisions on collective redress in the
current proposal. Adopting a horizontal approach allows for common rules on
collective redress for all policy fields in which scattered harm frequently
occurs and in which it is difficult for consumers and SMEs to obtain damages.
As the first step of an horizontal approach on collective redress, the
Commission adopted the Communication 'Towards a European Framework for Collective
Redress'[29]
and a Commission Recommendation on common principles for injunctive and
compensatory collective redress mechanisms in the Member States concerning violations
of rights granted under Union Law.[30]
The Commission also held a public consultation
in 2011 on a draft Guidance Paper on the quantification of antitrust harm[31]. This sets out insights into a
range of methods used to quantify harm in damages actions and explains the
strengths and weaknesses of these methods. Institutional and other stakeholders
generally welcomed the idea of issuing non-binding guidance on quantifying harm
caused by antitrust infringements[32].
2.2.        Collection and use of
external expertise
The Commission commissioned external
studies for the preparation of the 2005 Green Paper[33], for the 2008 White Paper[34] and for the 2011 draft
Guidance Paper on the quantification of antitrust harm[35].
2.3.        Impact assessment
The proposed Directive was preceded by an
Impact Assessment, which built largely on the findings of the Impact Assessment
on the White Paper. In particular, measures that had been excluded in the White
Paper because of their likely ineffectiveness or excessive costs were not
reconsidered.
The impact assessment report[36] focused on four options for a
follow-up initiative aimed at optimising the interaction between public and
private enforcement of the EU competition rules and ensuring a more effective
legal framework for damages actions for infringements of the EU competition
rules across Europe. They ranged from no action at the EU level, through a soft-law
approach, to two options for legally binding EU action.
The preferred option — which is the basis
of this proposal for a Directive — is considered to be the most cost-efficient
way of achieving the set objectives. It takes due account both of the main
comments received during the public consultations over the past eight years and
of more recent legislative and judicial developments at EU and national level.
3.           LEGAL ELEMENTS OF THE
PROPOSAL
3.1.        Legal basis of the
proposal
The choice of a legal basis for a European
measure must be based on objective factors which are amenable to judicial
review. Those include the aim and content of the measure. The current proposal
is based on both Articles 103 and 114 of the Treaty, because it pursues two
equally important goals which are inextricably linked, namely (a) to give
effect to the principles set out in Articles 101 and 102 of the Treaty and (b) to
ensure a more level playing field for undertakings operating in the internal
market, and to make it easier for citizens and businesses to make use of the
rights they derive from the internal market.
Regarding the first objective, the Court
has clarified that the full effectiveness of the EU competition rules and, in
particular, the practical effect of the prohibitions they contain would be put
at risk if it were not open to any person to claim damages for loss caused to
him/her by a contract or conduct liable to restrict or distort competition. It
considered that damages actions strengthen the working of the EU competition
rules and can thus make a significant contribution to maintaining effective
competition in the EU[37].
In seeking to improve the conditions under which injured parties can claim
damages and to optimise the interaction between the public and private
enforcement of Articles 101 and 102 TFEU, the present proposal clearly gives
effect to these provisions. This means that the proposed Directive must be
based on Article 103 of the Treaty.
However, that legal basis in itself does
not suffice, because both the aim and the content of the proposed Directive
transcend this legal basis. Indeed, the aim of the proposed Directive is wider
than giving effect to Articles 101 and 102 TFEU. The current divergence of
national rules governing damages actions for infringements of the EU
competition rules, including the interaction of such actions with the public
enforcement of those rules, has created a markedly uneven playing field in the
internal market. These marked differences were already described in a 2004 comparative
study[38]
and in the 2008 White Paper and its accompanying Impact Assessment. Since then,
these differences have increased due to diverging legislative and judicial
developments in only a limited number of Member States.
One example of divergence is given by the
different national rules applying to access to evidence. With the exception of
a few Member States, the lack of adequate rules on the disclosure of documents
in proceedings before a national court means that victims of a competition law
infringement, who are seeking compensation for the harm suffered, have no
effective access to evidence. Other examples concern national rules on
passing-on (where existing differences have major implications for the ability
of direct/indirect purchasers to effectively claim damages and, in turn, for
the defendant’s chances of avoiding compensation for harm caused), the
probative value of NCA decisions in subsequent damages actions, and national
rules that are relevant to the quantification of antitrust harm (e.g. the
existence of a presumption of harm).
Because of this marked diversity of
national legislations, the rules applicable in some Member States are
considered by claimants to be much more suitable for bringing an antitrust
damages action in those Member States rather than in others. These differences
lead to inequalities and uncertainty concerning the conditions under which
injured parties, both citizens and businesses, can exercise the right to
compensation they derive from the Treaty, and affect the effectiveness of such
right. Indeed, where the jurisdictional rules allow a claimant to bring its
action in one of those ‘favourable’ Member States and where that claimant has
the necessary resources and incentives to do so, it is thus far more likely to
effectively exercise its EU right to compensation than when it cannot do so. As
injured parties with smaller claims and/or fewer resources tend to choose the
forum of their Member State of establishment to claim damages (one reason being
that consumers and smaller businesses in particular cannot afford to choose a
more favourable jurisdiction), the result of the discrepancies between national
rules may be an uneven playing field as regards actions for damages and may
affect competition on the markets in which these injured parties operate.
Similarly, these marked differences mean
that undertakings established and operating in different Member States are
exposed to significantly different levels of risk of being held liable for
infringements of competition law. This uneven enforcement of the EU right of
compensation may result in a competitive advantage for undertakings that have breached
Articles 101 or 102 of the Treaty, but which do not have their headquarters or
are not active in one of the ‘favourable’ Member States. Conversely, uneven
enforcement is a disincentive to the exercise of the rights of establishment
and provision of goods or services in those Member States where the right to
compensation is more effectively enforced. The differences in the liability
regimes may thus negatively affect competition and run a risk of appreciably distorting
the proper functioning of the internal market.
To ensure a more level playing field for
undertakings operating in the internal market and to improve the conditions for
injured parties to exercise the rights they derive from the internal market, it
is therefore appropriate to increase legal certainty and to reduce the
differences between the Member States as to the national rules governing
actions for antitrust damages.
The extent to which the approximation of
national rules is pursued is not limited to damages actions for breaches of the
EU competition rules, but also of national competition rules when they are
applied in parallel. In particular, when an infringement that has an effect on
trade between Member States also breaches national competition law, actions for
damages based on it must comply with the same standards established for
breaches of EU competition law. 
Approximating national substantive and
procedural rules with the aim of pursuing undistorted competition in the
internal market and enabling citizens and undertakings the full exercise of the
rights and freedoms they derive therefrom is not merely ancillary to the
objective of ensuring effective enforcement of the EU competition rules. This
conclusion results not only from the aims, but also from the specific provisions
of the proposed Directive. The content of the proposed Directive cannot be
fully covered by Article 103 of the Treaty because it also modifies the
applicable national rules concerning the right to claim damages for
infringements of national competition law, even if that is only in respect to
anticompetitive behaviour that has an effect on trade between Member States and
to which EU competition law thus equally applies[39]. It follows that the scope of
the proposed Directive, arising not only from the aims but also from the
contents of the instrument, goes beyond giving effect to Articles 101 and 102
of the Treaty and means that the proposed Directive also has to be based on
Article 114 TFEU.
These interdependent, though distinct, aims
of the proposed Directive cannot be pursued separately, through the adoption of
two different instruments. For instance, it is not feasible to split the
proposed Directive into a first instrument, based on Article 103 TFEU, that
approximates national rules in damages actions for breaches of Articles 101 and
102 TFEU, and a second one, based on Article 114 TFEU, that requires Member
States to apply the same substantive and procedural rules to damages actions
for breaches of national competition law. This choice cannot be made for
substantive and procedural reasons.
From a substantive point of view, the indissociable
link between the two independent objectives underpins the concrete measures
that pursue them. For instance, the exceptions to disclosure and limitations of
liability give full effect to Articles 101 and 102, even in claims based on
breaches of national competition law, when this has been applied in parallel to
the Treaty provisions. Moreover, because of the need for legal certainty and a
level playing field in the internal market, the same rules must apply to
breaches of EU competition rules and of national competition law (where these
are applied in parallel to the EU rules). From a procedural point of view, and
to avoid impairing the institutional balance within the EU legislature, the
only way of achieving uniform rules for the two situations is to adopt a single
legal instrument in the same procedure.
For these reasons, the contents of the
initiative are not split among separate instruments but are addressed jointly in
the proposed Directive, which should thus be based on both Articles 103 and 114
of the Treaty.
3.2.        Subsidiarity principle (Article
5(3) of the Treaty on European Union)
The proposed Directive is in line with the
subsidiarity principle since its objectives cannot be sufficiently achieved by
the Member States, and there is a clear need for, and value in, EU action. A
legally binding act at EU level will be better capable of ensuring that full
effect is given to Articles 101 and 102 of the Treaty through common standards
allowing for effective damages actions across the EU, and that a more level
playing field is established in the internal market.
More specifically, the proposed Directive
can be deemed to comply with the principle of subsidiarity for the following
reasons:
·                        
There is a significant risk that effective
public enforcement by the Commission and NCAs would be jeopardised in the
absence of EU-wide regulation of the interaction between public and private
enforcement, and in particular of a common European rule on information from
the file of a competition authority being available for the purposes of a
damages action. The point can be illustrated most clearly with regard to
information that undertakings have voluntarily given to competition authorities
under their leniency programme. The unpredictability that follows from the fact
that each national court has to decide on an ad hoc basis and according
to the applicable national rules whether or not to grant access to this
leniency-related information cannot be adequately addressed by — potentially
diverging — national legislation. Indeed, since the Commission and the NCAs can
exchange information within the ECN, potential leniency applicants are likely
to take into account the national legislation which offers the lowest level of
protection (for fear that their case may eventually be decided by that NCA).
The perceived level of protection of leniency-related information will thus be
determined by whichever national legislation offers the lowest level of
protection, to the detriment of the applicable rules in other Member States. It
is therefore necessary to establish a standard common to all Member States for the
interaction between public and private enforcement. This can only be done at
the EU level.
·                        
Experience shows that, in the absence of EU
legislation, most Member States do not provide, on their own initiative, for an
effective framework for compensation for victims of infringements of Articles
101 and 102 of the Treaty, as repeatedly required by the Court. Since the
publication of the Commission’s Green and White Papers, only a small number of
Member States have enacted legislation aimed at enabling antitrust damages
actions, and even this is usually limited to specific issues and does not cover
the whole range of measures envisaged by the current proposal. Despite the few
steps taken by some Member States, there is thus still a lack of effective
compensation for victims of infringements of the EU antitrust rules. Only
further incentives at European level can create a legal framework that gives
effective redress and guarantees the right of effective judicial protection as
laid down in Article 47 of the Charter of Fundamental Rights of the European
Union.
·                        
There is currently a marked inequality between
Member States in the level of judicial protection of individual rights
guaranteed by the Treaty; this may cause distortions of competition and of the
proper functioning of the internal market. The result is an evident disparity
in even the content of the entitlement to damages guaranteed by EU law. More
specifically, a claim under the law of one Member State may lead to full
recovery of the claimant’s loss, while a claim for an identical infringement in
another Member State may lead to a significantly lower award or even no award
at all. This inequality increases if — as is the case at present — only some
Member States improve the conditions under which victims of a competition law
infringement can claim compensation for the harm suffered. The trans-national
dimension of Articles 101 and 102 of the Treaty and their intrinsic link to the
functioning of the internal market warrants measures at the EU level.
3.3.        Proportionality principle
(Article 5(4) of the Treaty on European Union)
In terms of proportionality, the proposed
Directive does not go beyond what is necessary to effectively achieve its
objectives, namely to guarantee effective protection of public enforcement of
competition law across the EU, and to guarantee access for victims of
competition law infringements to a truly effective mechanism for obtaining full
compensation for the harm they have suffered, while protecting the legitimate
interests of defendants and third parties.
Under the proposed Directive, those objectives
are also achieved at the lowest possible cost. The potential costs for citizens
and businesses are proportionate to the stated objectives. A first step in this
direction was taken with the White Paper by excluding more radical measures (e.g.
multiple damages, opt-out class actions and wide-ranging discovery rules). The
efforts to strike this balance were broadly welcomed during the public
consultations. The safeguards built into the proposed Directive strengthen this
balance further by reducing potential costs (especially litigation costs)
without jeopardising the right to compensation. Furthermore, certain measures
suggested in the White Paper, such as collective redress and rules on the fault
requirement, have since been discarded for the purposes of this proposal.
Finally, the choice of a Directive as the appropriate instrument is in line
with the principle that there should be as little intervention as possible, so
long as the objectives are achieved.
3.4.        A Directive as the most
appropriate legally binding instrument
The objectives of the present proposal can
best be pursued through a Directive. This is the most appropriate legal
instrument to make the measures work effectively and to facilitate smooth
adaptation into the legal systems of the Member States:
–                        
A Directive requires Member States to achieve
the objectives and implement the measures into their national substantive and
procedural law systems. This approach gives the Member States more freedom when
implementing an EU measure than does a Regulation, in that Member States are
left the choice of the most appropriate means of implementing the measures in
the Directive. This allows Member States to ensure that these new rules are
consistent with their existing substantive and procedural legal framework.
–                        
Furthermore, a Directive is a flexible tool for
introducing common rules in areas of national law that are crucial for the
functioning of the internal market and the effectiveness of damages actions, and
for ensuring adequate guarantees throughout the EU, while leaving room for
individual Member States to go further, should they so wish.
–                        
Finally, a Directive avoids unnecessary action
wherever the domestic provisions in the Member States are already in line with
the proposed measures.
4.           Detailed explanation of
the proposal
4.1.        Scope
and definitions (Chapter I: Articles 1 – 4)
The proposed Directive seeks to improve the
conditions under which compensation can be obtained for harm caused by (a) infringements
of the EU competition rules, and (b) infringements of national competition law
provisions, where the latter are applied by a national competition authority or
a national court in the same case in parallel to the EU competition rules. Such
parallel application has its basis in the way in which Regulation No 1/2003
regulates the relationship between Articles 101 and 102 of the Treaty and
national competition laws. Regulation No 1/2003 provides that where national
competition authorities or national courts apply national competition law to
agreements within the meaning of Article 101 which may affect trade between
Member States, they must also apply Article 101. Similarly, where they apply
national competition law to any abuse prohibited by Article 102, they must also
apply Article 102[40].
In cases where compensation is sought for a violation of both EU and national
competition law, it is appropriate for the same substantive and procedural
rules to apply to those damages actions. Applying diverging rules on civil
liability for a single specific instance of anticompetitive behaviour would not
only make it unworkable for judges to handle the case, it would also imply
legal uncertainty for all parties involved, and it could lead to conflicting
results depending on whether the national court considers the case as an
infringement of EU or of national competition law, thus hampering the effective
application of those rules. The proposed Directive therefore refers to damages
actions for ‘infringements of national or EU competition law’ or jointly ‘infringements
of competition law’, whereby ‘national competition law’ is defined narrowly so
as to cover only cases where it is applied in parallel to EU competition law.
The proposed Directive sets out rules (i)
ensuring that any natural or legal persons harmed by infringements of the
competition rules are granted equivalent protection throughout the Union and
can effectively enforce their EU right to full compensation through damages
actions before national courts; and (ii) optimising the interaction between
such damages actions and the public enforcement of the competition rules.
Article 2 recalls the acquis
communautaire on the EU right to full compensation. The proposed Directive
thus embraces a compensatory approach: its aim is to allow those who have
suffered harm caused by an infringement of the competition rules to obtain
compensation for that harm from the undertaking(s) that infringed the law.
Article 2 also recalls the acquis
communautaire on standing and on the definition of damage to be compensated.
The notion of actual loss referred to in this provision is taken from the
case-law of the Court of Justice, and does not exclude any type of damage
(material or immaterial) that might have been caused by an infringement of the
competition rules.
Article 3 recalls the principles of
effectiveness and equivalence which must be complied with by national rules and
procedures relating to actions for damages.
4.2.        Disclosure of evidence
(Chapter II: Articles 5 – 8)
Establishing an infringement of the
competition rules, quantifying antitrust damages, and establishing causality
between the infringement and the harm suffered typically require a complex
factual and economic analysis. Much of the relevant evidence a claimant will
need to prove his case is in the possession of the defendant or of third
persons and is often not sufficiently known or accessible to the claimants (‘information
asymmetry’). It is widely recognised that the difficulty a claimant encounters
in obtaining all necessary evidence constitutes in many Member States one of
the key obstacles to damages actions in competition cases. In so far as the
burden of proof falls on the (allegedly) infringing undertaking[41], it too may need to have
access to evidence in the hands of the claimant and/or of a third party. The opportunity
to ask the judge to order disclosure of information is therefore available to
both parties to the proceedings.
The disclosure regime in the proposed
Directive builds on the approach adopted in Directive 2004/48/EC on the
enforcement of intellectual property rights[42].
Its aim is to ensure that in all Member States there is a minimum level of
effective access to the evidence needed by claimants and/or defendants to prove
their antitrust damages claim and/or a related defence. At the same time, the proposed
Directive avoids overly broad and costly disclosure obligations that could
create undue burdens for the parties involved and risks of abuses. The
Commission has also paid particular attention to ensuring that the proposal is
compatible with the different legal orders of the Member States. To this end,
the proposal follows the tradition of the great majority of Member States and
relies on the central function of the court seized with an action for damages:
disclosure of evidence held by the opposing party or a third party can only be
ordered by judges and is subject to strict and active judicial control as to
its necessity, scope and proportionality.
National courts
should have at their disposal effective measures to protect any business
secrets or otherwise confidential information disclosed during the proceedings.
Furthermore, disclosure should not be allowed where it
would be contrary to certain rights and obligations such as the obligation of
professional secrecy. Courts must also be able to impose sanctions which are sufficiently deterrent to prevent
destruction of relevant evidence or refusal to comply with a disclosure order.
To prevent that the disclosure of evidence
jeopardises the public enforcement of the competition rules by a competition
authority, the proposed Directive also establishes common EU-wide limits to
disclosure of evidence held in the file of a competition authority:
(a)                   
First, it provides for absolute protection for two
types of documents which are considered to be crucial for the effectiveness of
public enforcement tools. The documents referred to are the leniency corporate
statements and settlement submissions. The disclosure of these documents risks
seriously affecting the effectiveness of the leniency programme and of
settlements procedures. Under the proposed Directive, a national court can
never order disclosure of such documents in an action for damages.
(b)                   
Second, it provides for temporary protection for
documents that the parties have specifically prepared for the purpose of public
enforcement proceedings (e.g. the party’s replies to the authority’s request
for information) or that the competition authority has drawn up in the course
of its proceedings (e.g. a statement of objections). Those documents can be
disclosed for the purpose of an antitrust damages action only after the
competition authority has closed its proceedings.
(c)                   
Apart from limiting the national court’s ability
to order disclosure, the above protective measures should also come into play
if and when the protected documents have been obtained in the context of public
enforcement proceedings (e.g. in the exercise of one of the parties’ right of
defence). Therefore, where one of the parties in the action for damages had
obtained those documents from the file of a competition authority, such
documents are not admissible as evidence in an action for damages (documents of
category (a) above) or are admissible only when the authority has closed its
proceedings (documents of category (b) above).
(d)                   
Documents which fall outside the above
categories can be disclosed by court order at any moment in time. However, when
doing so, national courts should refrain from ordering the disclosure of evidence
by reference to information supplied to a competition authority for the purpose
of its proceedings[43]. While the investigation is on-going, such disclosure could hinder
public enforcement proceedings, since it would reveal what information is in
the file of a competition authority and could thus be used to unravel the
authority’s investigation strategy. However, the selection of pre-existing
documents that are submitted to a competition authority for the purposes of the
proceedings is in itself relevant, as undertakings are invited to supply
targeted evidence in view of their cooperation. The willingness of undertakings
to supply such evidence exhaustively or selectively when cooperating with
competition authorities may be hindered by disclosure requests that identify a
category of documents by reference to their presence in the file of a
competition authority rather than their type, nature or object (e.g. requests
for all documents in the file of a competition authority or all documents
submitted thereto by a party). Therefore, such global disclosure requests for
documents should normally be deemed by the court as disproportionate and not
complying with the requesting party's duty to specify categories of evidence as
precisely and narrowly as possible.
(e)                   
Finally, to prevent documents obtained through
access to a competition authority’s file becoming an object of trade, only the person
who obtained access to the file (or his legal successor in the rights related
to the claim) should be able to use those documents as evidence in an action
for damages.
To achieve coherence regarding the rules on
disclosure and the use of certain documents from the file of a competition
authority, it is necessary to also amend existing rules on the conduct of
Commission's proceedings laid down in Commission Regulation 773/2004[44], notably as regards access to
the Commission's file and use of documents obtained therefrom, and the
explanatory Notices published by the Commission[45]. The Commission intends doing
so once the present Directive is adopted by the European Parliament and
Council.
4.3.        Effect of national
decisions, limitation periods and joint and several liability (Chapter III:
Articles 9 – 11)
4.3.1.     Probative effect of
national decisions
Pursuant to Article 16(1) of Regulation No 1/2003,
a Commission decision relating to proceedings under Article 101 or 102 of the
Treaty has a probative effect in subsequent actions for damages, as a national
court cannot take a decision running counter to such Commission decision[46]. It is appropriate to give
final infringement decisions by national competition authorities (or by a
national review court) similar effect. If an infringement decision has already
been taken and has become final, the possibility for the infringing undertaking
to re-litigate the same issues in subsequent damages actions would be
inefficient, cause legal uncertainty and lead to unnecessary costs for all
parties involved and for the judiciary.
The proposed probative effect of final
infringement decisions of national competition authorities does not entail any
lessening of judicial protection for the undertakings concerned, as
infringement decisions by national competition authorities are still subject to
judicial review. Moreover, throughout the EU, undertakings enjoy a comparable
level of protection of their rights of defence, as enshrined in Article 48(2)
of the EU Charter on Fundamental Rights. Finally, the rights and obligations of
national courts under Article 267 of the Treaty remain unaffected by this rule.
4.3.2.     Limitation periods
To give victims of a competition law
infringement a reasonable opportunity to bring a damages action, while ensuring
an appropriate level of legal certainty for all parties involved, the
Commission proposes that the national rules on limitation periods for a damages
action:
–                        
allow victims sufficient time (at least five
years) to bring an action after they became aware of the infringement, the harm
it caused and the identity of the infringer;
–                        
prevent a limitation period from starting to run
before the day on which a continuous or repeated infringement ceases; and
–                        
in case a competition authority opens
proceedings into a suspected infringement, the limitation period to bring an
action for damages relating to such infringement is suspended until at least one
year after a decision is final or proceedings are otherwise terminated.
4.3.3.     Joint and several liability
Where
several undertakings infringe the competition rules jointly — typically in the
case of a cartel — it is appropriate that they be jointly and severally liable
for the entire harm caused by the infringement. While the proposed Directive
builds on this general rule, it introduces certain modifications with regard to
the liability regime of immunity recipients. The objective of these modifications
is to safeguard the attractiveness of the leniency programmes of the Commission
and of the NCAs, which are key instruments in detecting cartels and thus of
crucial importance for the effective public enforcement of the competition
rules.
Indeed, as
leniency recipients are less likely to appeal an infringement decision, this
decision often becomes final for them earlier than for other members of the
same cartel. This may make leniency recipients the primary targets of damages
actions. To limit the disadvantageous consequences of such exposure, while not
unduly limiting the possibilities for injured parties to obtain full
compensation for the loss suffered, it is proposed to limit the immunity
recipient’s liability, as well as his contribution owed to co-infringers under
joint and several liability, to the harm he caused to his own direct or indirect
purchasers or, in the case of a buying cartel, his direct or indirect
providers. Where a cartel has caused harm only to others than the
customers/providers of the infringing undertakings, the immunity recipient
would be responsible only for his share of the harm caused by the cartel. How
that share is determined (e.g. turnover, market share, role in the cartel, etc.),
is left to the discretion of the Member States, as long as the principles of
effectiveness and equivalence are respected.
The
protection of immunity recipients cannot, however, interfere with the victims’
EU right to full compensation. The proposed limitation on the immunity
recipient’s liability cannot therefore be absolute: the immunity recipient
remains fully liable as a last-resort debtor if the injured parties are unable
to obtain full compensation from the other infringers. To guarantee the effet
utile of this exception, Member States have to make sure that injured
parties can still claim compensation from the immunity recipient at the time they
have become aware that they cannot obtain full compensation from the
co-cartelists. 
4.4.        Passing-on
of overcharges (Chapter IV: Articles 12 – 15)
Persons who have
suffered harm caused by an infringement of the competition rules are entitled
to compensation, regardless of whether they are direct or indirect purchasers. Injured
parties are entitled to compensation for actual loss (overcharge harm) and for
loss of profit. When an injured party has reduced his actual loss by passing it
on, partly or entirely, to his own purchasers, the loss thus passed on no
longer constitutes harm for which the party that passed it on has to be
compensated. However, where a loss is passed on, the price increase by the
direct purchaser is likely to lead to a reduction in the volume sold. That loss
of profit, as well as the actual loss that was not passed on (in the case of
partial passing-on) remains antitrust harm for which the injured party can
claim compensation.
If the harm is
suffered as a result of an infringement relating to a supply to the infringing
undertaking, passing-on could also take place in an upwards direction on the
supply chain. This would, for example, be the case when, as a result of a
buying cartel, the suppliers of the cartelists charge lower prices, and those
suppliers then in turn require lower prices from their own suppliers.
To ensure that only the direct and indirect
purchasers that actually suffered overcharge harm can effectively claim
compensation, the proposed Directive explicitly recognises the possibility for
the infringing undertaking to invoke the passing-on defence.
However, in
situations where the overcharge was passed on to natural or legal persons at
the next level of the supply chain for whom it is legally impossible to claim
compensation, the passing-on defence cannot be invoked. Indirect purchasers may
be faced with the legal impossibility of claiming compensation because of national
rules on causality (including rules on foreseeability and remoteness). Allowing
the passing-on defence when it is legally impossible for the party to whom the
overcharge was allegedly passed on to claim compensation would be unjustified,
since it would mean that the infringing undertaking is unduly freed from
liability for the harm he caused. The burden of proving the passing-on always
lies with the infringing undertaking. In the case of an action for damages
brought by an indirect purchaser, this implies a rebuttable presumption
pursuant to which, subject to certain conditions, a passing-on to that indirect
purchaser occurred. As regards the quantification of the
passing-on, the national court should have the power to estimate which share of
the overcharge has been passed on to the level of indirect purchasers in the
dispute pending before it. Where injured parties from different levels of the
supply chain bring separate actions for damages that are related to the same
competition law infringement, national courts should take due account, as far
as allowed under applicable national or EU law, of parallel or preceding
actions (or judgments resulting from such actions) in order to avoid under- and
over-compensation of the harm caused by that infringement and to foster
consistency between judgments resulting from such linked proceedings. Actions that
are pending before the courts of different Member States may be considered as
related within the meaning of Article 30 of Regulation No 1215/2012[47], meaning that they are so
closely connected that it is expedient to hear and determine them together to
avoid the risk of irreconcilable judgments resulting from separate proceedings.
As a consequence, any court other than the court first seized may stay its
proceedings or decline jurisdiction if the court first seized has jurisdiction
over the actions in question and its law permits the consolidation of the
actions.
Both Regulation
No 1215/2012 and this proposed Directive thus seek to encourage consistency
between judgments resulting from related actions. To achieve that, the proposed
Directive has an even wider scope than Regulation No 1215/2012, as it also
covers the situation of subsequent actions for damages relating to the same
competition law infringement, brought by injured parties at different levels of
the supply chain. These actions can be brought in the same court, in different
courts in the same Member State or in different courts of different Member
States. In all instances, the proposed Directive encourages the consistency of
linked proceedings and judgments.
4.5.        Quantification of harm
(Chapter V: Article 16)
Proving and
quantifying antitrust harm is generally very fact-intensive and costly, as it
may require the application of complex economic models. To assist victims of a
cartel in quantifying the harm caused by the competition law infringement, this
proposed Directive provides for a rebuttable presumption with regard to the
existence of harm resulting from a cartel. Based on the finding that more than
9 out of 10 cartels indeed cause an illegal overcharge[48], this alleviates the injured
party’s difficulties and costs related to proving that the cartel caused higher
prices to be charged than if the cartel had not existed.
The infringing
undertaking could rebut this presumption and use the evidence at its disposal
to prove that the cartel did not cause harm. The burden of proof is thus placed
on the party which already has in its possession the necessary evidence to meet
this burden of proof. The costs of disclosure, which would most likely be
necessary for the injured parties to prove the existence of harm, are thus
avoided.
Apart from the
above presumption, antitrust harm is quantified on the basis of national rules
and procedures. These must, however, be in line with the principles of
equivalence and of effectiveness. The latter, in particular, dictates that the
burden and the level of proof may not render the injured party’s right to
damages practically impossible or excessively difficult. In terms of quantifying
antitrust harm, where the actual situation needs to be compared with a hypothetical
one, this means that judges must be able to estimate the amount of harm. This
increases the likelihood that victims will actually obtain an adequate amount
of compensation for the harm they have suffered.
To make it
easier for national courts to quantify harm, the Commission is also providing
non-binding guidance on this topic in its Communication on quantifying harm in
actions for damages based on breaches of Article 101 or 102 of the Treaty on
the Functioning of the European Union[49].
The Communication is accompanied by a Commission Staff Working Paper taking the
form of a Practical Guide on quantifying harm in actions for damages based on
breaches of EU competition law. This Practical Guide explains the strengths and
weaknesses of various methods and techniques available to quantify antitrust
harm. It also presents and discusses a range of practical examples, which
illustrate the typical effects that infringements of the EU competition rules
tend to have and how the available methods and techniques can be applied in
practice.
4.6.        Consensual
Dispute Resolution (Chapter VI: Articles 17-18)
One of the primary objectives of the
proposed Directive is to enable victims of a competition law infringement to
obtain full compensation for the harm suffered. That objective can be achieved
either through a damages action in court or through a consensual out-of-court
settlement between the parties. To incentivise parties to settle their dispute
consensually, the proposed Directive aims at optimising the balance between
out-of-court settlements and actions for damages.
It therefore contains the following
provisions:
(i)           suspension of limitation periods
for bringing actions for damages as long as the infringing undertaking and the
injured party are engaged in consensual dispute resolution;
(ii)          suspension of pending
proceedings for the duration of consensual dispute resolution;
(iii)          reduction of the settling
injured party’s claim by the settling infringer’s share of harm. For the
remainder of the claim, the settling infringer could only be required to pay
damages if the non-settling co-infringers were unable to fully compensate the
injured party; and
(iv)         damages paid through consensual
settlements to be taken into account when determining the contribution that a
settling infringer needs to pay following a subsequent order to pay damages. In
this context, ‘contribution’ refers to the situation where the settling
infringer was not a defendant in the action for damages, but is asked by
co-infringers who were ordered to pay damages to contribute under the rules of
joint and several liability.
5.           BUDGETARY IMPLICATIONS
The proposed Directive does not have any
budgetary implications.
6.           ADDITIONAL INFORMATION
6.1.        Repeal of existing
legislation
No previous legislative act is repealed
through this present proposal.
6.2.        Review
Article 21 of the proposed Directive
requires the Commission to report to the European Parliament and the Council on
its effects at the latest five years after the deadline for transposition into
national law.
Once the proposed Directive has been
adopted, the Commission will continue to monitor the legal framework for
antitrust damages actions in the Member States, focusing primarily on the
achievement of the two main objectives of the proposed Directive, i.e.
(i)      optimising the interaction between
the public and private enforcement of competition law; and
(ii)     ensuring that victims of
infringements of the EU competition rules can obtain full compensation for the
harm they have suffered.
The Commission will assess whether the
Directive is successful in removing inefficiencies and obstacles preventing
full compensation of victims of antitrust infringements and whether the
interaction between public and private enforcement of competition law is
functioning smoothly, to guarantee the optimal overall enforcement of EU
competition law. As part of this monitoring process, the Commission will
continue its dialogue with all relevant stakeholders.
Finally, an ex-post evaluation as regards
the need for further modifications will be made once the measures put forward
by the Directive are being fully implemented in the Member States, i.e. at
least five years after the deadline for transposition of the Directive.
6.3.        Explanatory documents
The proposed Directive sets out specific
measures to approximate substantive and procedural national rules governing
actions for damages for infringements of the competition law provisions of the
Member States and of the European Union. There are several legal obligations
stemming from the proposed Directive. Its effective transposition will
therefore require that specific and targeted amendments are made to the
relevant national rules. In order for the Commission to monitor the correct
implementation, it is thus not sufficient for Member States to transmit the
text of the implementing provisions, as an overall assessment of the resulting
regime under national law may be necessary. For these reasons, Member States
should also transmit to the Commission explanatory documents showing which
existing or new provisions under national law are meant to implement the
individual measures set out in the proposed Directive.
6.4.        European Economic Area
The proposed Directive relates to the
effective enforcement of Articles 101 and 102 of the Treaty, by optimising the
interaction between the public and private enforcement of these provisions as
well as by improving the conditions under which victims of competition law
infringements can claim damages. The proposed Directive contributes to the
proper functioning of the internal market as it creates a more level playing
field both for the undertakings that infringe the competition rules and for the
victims of this illegal behaviour. Due to these objectives in the fields of
competition and the internal market, which form part of the EEA legal rules, the
proposal is relevant for the EEA.
2013/0185 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
on certain rules governing actions for
damages under national law for infringements of the competition law provisions
of the Member States and of the European Union
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, and in particular Articles 103 and 114
thereof,
Having regard to the proposal from the
European Commission[50],
After transmission of the draft legislative
act to the national Parliaments,
Having regard to the opinion of the
European Economic and Social Committee[51],
Acting in accordance with the ordinary
legislative procedure,
Whereas:
(1)       Articles 101 and 102 of
the Treaty on the Functioning of the European Union (hereinafter referred to as
the Treaty) are a matter of public policy and must be applied effectively
throughout the Union to ensure that competition in the internal market is not
distorted.
(2)       The public enforcement of
those Treaty provisions is carried out by the Commission using the powers provided
by Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation
of the rules on competition laid down in Articles 81 and 82 of the Treaty
establishing the European Community[52]
(hereinafter: Regulation No 1/2003). Public enforcement is also carried out by
national competition authorities, which may take the decisions listed in
Article 5 of Regulation No 1/2003.
(3)       Articles 101 and 102 of
the Treaty produce direct effects in relations between individuals and create,
for the individuals concerned, rights and obligations which national courts
must enforce. National courts thus have an equally essential part to play in
applying the competition rules (private enforcement). When ruling on disputes
between private individuals, they protect subjective rights under Union law,
for example by awarding damages to the victims of infringements. The full
effectiveness of Articles 101 and 102 of the Treaty, and in particular the
practical effect of the prohibitions laid down therein, requires that anyone —
be they an individual, including consumers and undertakings, or a public
authority — can claim compensation before national courts for the harm caused
to them by an infringement of those provisions. This Union right to
compensation applies equally to breaches of Articles 101 and 102 by public
undertakings or undertakings entrusted with special or exclusive rights by
Member States within the meaning of Article 106 of the Treaty.
(4)       The Union right to
compensation for antitrust harm requires each Member State to have procedural rules
ensuring the effective exercise of that right. The need for effective
procedural remedies also follows from the right to effective judicial
protection as laid down in Article 47, first paragraph, of the Charter of
Fundamental Rights of the European Union[53]
and in Article 19(1), second subparagraph of the Treaty on European Union.
(5)       To ensure effective public
and private enforcement of the competition rules, it is necessary to regulate
the way the two forms of enforcement are coordinated, for instance the arrangements
for access to documents held by competition authorities. Such coordination at Union
level will also avoid divergence of applicable rules, which could jeopardise the
proper functioning of the internal market.
(6)       In accordance with Article
26(2) of the Treaty, the internal market comprises an area without internal
frontiers in which the free movement of goods, persons, services and capital is
ensured. There exist marked differences between the rules in the Member States
governing actions for damages for infringements of national or Union competition
law. Those differences lead to uncertainty concerning the conditions under
which injured parties can exercise the right to compensation they derive from
the Treaty, and affect the substantive effectiveness of such right. As injured
parties often choose the forum of their Member State of establishment to claim
damages, the discrepancies between the national rules lead to an uneven playing
field as regards actions for damages and may affect competition on the markets
on which these injured parties, as well as the infringing undertakings,
operate. 
(7)       Undertakings established
and operating in different Member States are subject to procedural rules that
significantly affect the extent to which they can be held liable for
infringements of competition law. This uneven enforcement of the Union right to
compensation may result in a competitive advantage for some undertakings which
have breached Articles 101 or 102 of the Treaty, and a disincentive to the
exercise of the rights of establishment and provision of goods or services in
those Member States where the right to compensation is more effectively
enforced. As such, the differences in the liability regimes applicable in the
Member States may negatively affect both competition and the proper functioning
of the internal market.
(8)       It is therefore necessary
to ensure a more level playing field for undertakings operating in the internal
market and to improve the conditions for consumers to exercise the rights they
derive from the internal market. It is also appropriate to increase legal
certainty and to reduce the differences between the Member States as to the
national rules governing actions for damages for infringements of European
competition law and, when applied in parallel to the latter, national
competition law. An approximation of these rules will also help to prevent the
emergence of wider differences between the Member States’ rules governing
actions for damages in competition cases.
(9)       Article 3(1) of Regulation
(EC) No 1/2003 provides that ‘where the competition authorities of the Member
States or national courts apply national competition law to agreements,
decisions by associations of undertakings or concerted practices within the
meaning of Article [101(1)] of the Treaty which may affect trade between Member
States within the meaning of that provision, they shall also apply Article
[101] of the Treaty to such agreements, decisions or concerted practices. Where
the competition authorities of the Member States or national courts apply
national competition law to any abuse prohibited by Article [102] of the
Treaty, they shall also apply Article [102] of the Treaty.’ In the interest of
the proper functioning of the internal market and with a view to greater legal
certainty and a more level playing field for undertakings and consumers, it is
appropriate that the scope of this Directive should extend to actions for
damages based on the infringement of national competition law where it is
applied pursuant to Article 3(1) of Regulation (EC) No 1/2003. Applying diverging
rules on civil liability for infringements of Articles 101 and 102 of the
Treaty and for infringements of rules of national competition law which must be
applied in the same case and in parallel to Union competition law would
otherwise adversely affect the position of claimants in the same case and the
scope of their claims, and constitute an obstacle to the proper functioning of
the internal market.
(10)     In the absence of Union
law, actions for damages are governed by the national rules and procedures of
the Member States. All national rules governing the exercise of the right to
compensation for harm resulting from an infringement of Article 101 or 102 of
the Treaty, including those concerning aspects not dealt with in this Directive
such as the notion of causal relationship between the infringement and the harm,
must observe the principles of effectiveness and equivalence. This means that
they may not be formulated or applied in a way that makes it excessively
difficult or practically impossible to exercise the right to compensation
guaranteed by the Treaty, and they may not be formulated or applied less
favourably than those applicable to similar domestic actions. 
(11)     This Directive reaffirms
the acquis communautaire on the Union right to compensation for harm
caused by infringements of Union competition law, particularly regarding
standing and the definition of damage, as it has been stated in the case-law of
the Court of Justice of the European Union, and does not pre-empt any further
development thereof. Anyone who has suffered harm caused by an infringement can
claim compensation for the actual loss (damnum emergens), for the gain
of which he has been deprived (loss of profit or lucrum cessans) and
payment of interest accruing from the time the harm occurred until compensation
is paid. This right is recognised for any natural or legal person — consumers,
undertakings and public authorities alike — irrespective of the existence of a
direct contractual relationship with the infringing undertaking, and regardless
of whether or not there has been a prior finding of an infringement by a
competition authority. This Directive should not require Member States to
introduce collective redress mechanisms for the enforcement of Articles 101 and
102 of the Treaty.
(12)     Actions for damages for
infringements of national or Union competition law typically require a complex
factual and economic analysis. The evidence necessary to prove a claim for
damages is often held exclusively by the opposing party or by third parties,
and is not sufficiently known by and accessible to the claimant. In such
circumstances, strict legal requirements for claimants to assert in detail all
the facts of their case at the beginning of an action and to proffer precisely specified
pieces of supporting evidence can unduly impede the effective exercise of the
right to compensation guaranteed by the Treaty.
(13)     Evidence is an important
element for bringing actions for damages for infringement of national or Union
competition law. However, as antitrust litigation is characterised by an
information asymmetry, it is appropriate to ensure that injured parties are
afforded the right to obtain the disclosure of evidence relevant to their claim,
without it being necessary for them to specify individual items of evidence. In
order to ensure equality of arms, those means should also be available to
defendants in actions for damages, so that they can request the disclosure of
evidence by those injured parties. National courts can also order evidence to
be disclosed by third parties. Where the national court wishes to order
disclosure of evidence by the Commission, the principle of sincere cooperation
between the European Union and the Member States (Article 4(3) TEU) and Article
15(1) of Regulation No 1/2003 as regards requests for information are
applicable.
(14)     Relevant evidence should be
disclosed upon decision of the court and under its strict control, especially as
regards the necessity and proportionality of the disclosure measure. It follows
from the requirement of proportionality that disclosure requests can only be
triggered once an injured party has made it plausible, on the basis of facts
which are reasonably available to him, that the party has suffered harm that
was caused by the defendant. The request for disclosure should refer to categories of evidence which are as precise
and narrow as possible on the basis of reasonably
available facts. 
(15)     The requirement of
proportionality should also be carefully assessed when disclosure risks
unravelling the investigation strategy of a competition authority by revealing
which documents are part of the file or causing a negative bearing on the way
in which companies cooperate with the competition authority. The disclosure
request should therefore not be deemed proportionate when it refers to the
generic disclosure of documents in the file of a competition authority relating
to a certain case, or of documents submitted by a party in the context of a
certain case. Such wide disclosure requests would also not be compatible with
the requesting party's duty to specify categories of evidence as precisely and
narrowly as possible.
(16)     Where the court requests a competent court of another Member State to take evidence
or requests evidence to be taken directly in another Member State, the provisions of Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation
between the courts of the Member States in the taking of evidence in civil or
commercial matters[54]
apply.
(17)     While
relevant evidence containing business secrets or otherwise confidential information should in
principle be available in actions for damages, such confidential information
needs to be appropriately protected. National courts should therefore have at
their disposal a range of measures to protect such confidential information
from being disclosed during the proceedings. These may include the possibility
of hearings in private, restricting the circle of persons entitled to see the
evidence, and instruction of experts to produce
summaries of the information in an aggregated or otherwise non-confidential
form. Measures protecting business secrets and other confidential
information should not practically impede the exercise of the right to
compensation.
(18)     The
effectiveness and consistency of the application of Articles 101 and 102 of the
Treaty by the Commission and the national competition authorities require a
common approach across the Union regarding the interaction of rules on disclosure of evidence and
the way these Articles are enforced by a competition authority. Disclosure of
evidence should not unduly detract from the effectiveness of enforcement of
competition law by a competition authority. The limitations on the disclosure
of evidence should not prevent competition authorities from publishing their
decisions in accordance with applicable Union or national rules.
(19)     Leniency programmes and settlement procedures are important
tools for the public enforcement of Union competition law as they contribute to
the detection, efficient prosecution and sanctioning of the most serious
competition law infringements. Undertakings may be deterred from co-operating
in this context if disclosure of documents they solely produce to this end were
to expose them to civil liability under worse conditions than the co-infringers
that do not co-operate with competition authorities. To ensure that
undertakings are willing to produce voluntary statements acknowledging their
participation in an infringement of Union or national competition law to a competition authority under a
leniency programme or a settlement procedure, such statements should be
excepted from disclosure of evidence. 
(20)     In
addition, an exception to disclosure should apply to any disclosure measure
that would unduly interfere with an ongoing investigation by a competition
authority concerning an infringement of national or Union competition law. Information
that was prepared by a competition authority in the course of its proceedings
for the enforcement of national or Union competition law (such as a Statement
of Objections) or by a party to those proceedings (such as replies to requests
for information of the competition authority) should therefore be disclosable
in actions for damages only after the competition authority has found an
infringement of the national or Union competition rules or has otherwise closed
its proceedings.
(21)     Apart from the evidence
referred to in recitals (19) and(20), national courts should be able to order,
in the context of an action for damages, disclosure of evidence that exists irrespective
of the proceedings of a competition authority (‘pre-existing information’). 
(22)     Any natural or legal person
who obtains evidence through access to the file of a competition authority in
exercising his rights of defence in relation to investigations by a competition
authority can use that evidence for the purposes of an action for damages to
which he is a party. Such use should also be allowed for the natural or legal
person that succeeded in his rights and obligations, including through the
acquisition of his claim. In case the evidence was obtained by a legal person
forming part of a corporate group constituting one undertaking for the
application of Articles 101 and 102 of the Treaty, the use of such evidence is
also allowed for other legal entities belonging to the same undertaking. 
(23)     However, the use referred
to in the previous recital may not unduly detract from the effective enforcement
of competition law by a competition authority. Limitations to disclosure
referred to in recitals (19) and (20) should thus equally apply to the use of
evidence which is obtained solely through access to the file of a competition
authority. Moreover, evidence obtained from a competition authority in the
context of exercise of the rights of defence should not become an object of
trade. The possibility of using evidence that was obtained solely through
access to the file of a competition authority should therefore be limited to
the natural or legal person that exercised his rights of defence and his legal
successors, as mentioned in the previous recital. This limitation does not,
however, prevent a national court from ordering the disclosure of that evidence
under the conditions provided for in this Directive.
(24)     Making a claim for damages,
or the start of an investigation by a competition authority, entails a risk
that the undertakings concerned may destroy or hide evidence that would be
useful in substantiating an injured party’s claim for damages. To prevent the
destruction of relevant evidence and to ensure that court orders requesting
disclosure are complied with, courts should be able to impose sufficiently
deterrent sanctions. Insofar as parties to the proceedings are concerned, the risk
of adverse inferences being drawn in the proceedings for damages can be a particularly
effective sanction and can avoid delays. Sanctions should also be available for
non-compliance with obligations to protect confidential information and for
abusive use of information obtained through disclosure. Similarly, sanctions
should be available if information obtained through access to the file of a
competition authority in the exercise of one’s rights of defence in relation to
investigations of that competition authority is used abusively in actions for
damages. 
(25)     Article 16(1) of Regulation
(EC) No 1/2003 provides that where national courts rule on agreements,
decisions or practices under Article 101 or 102 of the Treaty which are already
the subject of a Commission decision, they cannot take decisions which run counter
to the decision adopted by the Commission. To enhance legal certainty, to avoid
inconsistency in the application of those Treaty provisions, to increase the
effectiveness and procedural efficiency of actions for damages and to foster
the functioning of the internal market for undertakings and consumers, it
should similarly not be possible to call into question a final decision by a
national competition authority or a review court finding an
infringement of Article 101 or 102 of the Treaty in actions for damages
relating to the same infringement, regardless of whether or not the action is
brought in the Member State of the authority or review court. The same should
apply to a decision in which it has been concluded that provisions of national
competition law are infringed in cases where national and Union competition law
are applied in the same case and in parallel. This effect of decisions by
national competition authorities and review courts finding an infringement of
the competition rules should apply to the operative part of the decision and
its supporting recitals. This is without prejudice to the rights and
obligations of national courts under Article 267 of the Treaty.
(26)     National rules on the
beginning, duration, suspension or interruption of limitation periods should
not unduly hamper the bringing of actions for damages. This is particularly
important in respect of actions that build upon the competition authority's or
a review court’s finding of an infringement. To that end, injured parties
should still be able to bring an action for damages after proceedings by a
competition authority, with a view to enforcing national and Union competition
law.
(27)     Where
several undertakings infringe the competition rules jointly (as in the case of
a cartel) it is appropriate to make provision for these joint infringers to be held
jointly and severally liable for the entire harm caused by the infringement.
Amongst themselves, the joint infringers should have the right to obtain
contribution if one of the infringing undertakings has paid more than its
share. The determination of that share as the relative responsibility of a
given infringer and the relevant criteria, such as turnover, market share, or
role in the cartel, is a matter for the applicable national law, while
respecting the principles of effectiveness and equivalence.
(28)     Undertakings which
cooperate with competition authorities under a leniency programme play a key
role in detecting secret cartel infringements and in bringing these
infringements to an end, thereby often mitigating the harm which could have
been caused had the infringement continued. It is therefore appropriate to make
provision for undertakings which have received immunity from fines from a
competition authority under a leniency programme to be protected from undue
exposure to damages claims, bearing in mind that the decision of the
competition authority finding the infringement may become final for the
immunity recipient before it becomes final for other undertakings which have
not received immunity. It is therefore appropriate that the immunity recipient is
relieved in principle from joint and several liability for the entire harm and that
its contribution does not exceed the amount of harm caused to his own direct or
indirect purchasers or, in case of a buying cartel, his direct or indirect
providers. To the extent a cartel has caused harm to others than the
customers/providers of the infringing undertakings, the contribution of the
immunity recipient should not exceed his relative responsibility for the harm
caused by the cartel. This share should be determined in accordance with the
same rules used to determine the contributions among infringing undertakings
(recital (27) above). The immunity recipient should remain fully liable to the
injured parties other than his direct or indirect purchasers or providers only
where they are unable to obtain full compensation from the other infringing
undertakings. 
(29)     Consumers and undertakings which
have been harmed by an infringement of national or Union competition law are
entitled to compensation for the actual loss and for loss of profit. The actual
loss can result from the price difference between what was actually paid and
what would have been paid in the absence of the infringement. When an injured
party has reduced his actual loss by passing it on, entirely or in part, to his
own purchasers, the loss which has been passed on no longer constitutes harm
for which the party that passed it on has to be compensated. It is therefore in
principle appropriate to allow an infringing undertaking to invoke the
passing-on of actual loss as a defence against a claim for damages. It is
appropriate to provide that the infringing undertaking, insofar as it invokes the
passing-on defence, must prove the existence and extent of pass-on of the
overcharge.
(30)     However, in a situation
where the overcharge was passed on to persons who are legally unable to claim
compensation, it is not appropriate to allow the infringing undertaking to invoke
the passing-on defence, as this would render it free of liability for the harm
which it has caused. The court seized of the action should therefore assess, when
the passing-on defence is invoked in a specific case, whether the persons to
whom the overcharge was allegedly passed on are legally able to claim
compensation. While indirect purchasers are entitled to claim compensation,
national rules of causality (including rules on foreseeability and remoteness),
applied in accordance with principles of Union law, may entail that certain
persons (for instance at a level of the supply chain which is remote from the
infringement) are legally unable to claim compensation in a given case. Only
when the court finds that the person to whom the overcharge was allegedly
passed on is legally able to claim compensation will it assess the merits of
the passing-on defence.
(31)     Consumers or undertakings
to whom actual loss has been passed on have suffered harm that has been caused
by an infringement of national or Union competition law. While such harm should
be compensated by the infringing undertaking, it may be particularly difficult
for consumers or undertakings that did not themselves make any purchase from
the infringing undertaking to prove the scope of that harm. It is therefore
appropriate to provide that, where the existence of a claim for damages or the
amount to be awarded depends on whether or to what degree an overcharge paid by
the direct purchaser of the infringing undertaking has been passed on to the
indirect purchaser, the latter is regarded as having brought the proof that an
overcharge paid by that direct purchaser has been passed on to his level, where
he is able to show prima facie that such passing-on has occurred. It is
furthermore appropriate to define under what conditions the indirect purchaser is
to be regarded as having established such prima facie proof. As regards
the quantification of passing-on, the national court should have the power to
estimate which share of the overcharge has been passed on to the level of
indirect purchasers in the dispute pending before it. The infringing
undertaking should be allowed to bring proof showing that the actual loss has
not been passed on or has not been passed on entirely.
(32)     Infringements of
competition law often concern the conditions and the price under which goods or
services are sold and lead to an overcharge and other harm for the customers of
the infringing undertakings. The infringement may also concern supplies to the
infringing undertaking (for example in the case of a buyer’s cartel). The rules
of this Directive and in particular the rules on pass-on should apply
accordingly.
(33)     Actions for damages can be
brought both by injured parties that have purchased goods or services from the
infringing undertaking and by purchasers further down the supply chain. In the
interest of consistency between judgments resulting from such related
proceedings and hence to avoid the harm caused by the infringement of national
or Union competition law not being fully compensated or the infringing
undertaking being required to pay damages to compensate for harm that has not
been suffered, national courts should take due account, as far as allowed under
Union and national law, of any related action and of the resulting judgment,
particularly where it finds that passing-on has been proven. This should be
without prejudice to the fundamental rights of defence and to an effective
remedy and a fair trial of those who were not parties to these judicial
proceedings. Any such actions pending before the courts of different Member
States may be considered as related within the meaning of Article 30 of
Regulation No 1215/2012. Under this provision, national courts other than the
one first seized may stay proceedings or, under certain circumstances, decline
jurisdiction.
(34)     An injured party who has
proven having suffered harm as a result of a competition law infringement still
needs to prove the extent of the harm in order to obtain damages. Quantifying
antitrust harm is a very fact-intensive process and may require the application
of complex economic models. This is often very costly and causes difficulties
for injured parties in terms of obtaining the necessary data to substantiate
their claims. As such, the quantification of antitrust harm can constitute a
substantial barrier preventing injured parties from obtaining compensatory
damages for harm suffered.
(35)     To remedy the information
asymmetry and some of the difficulties associated with quantifying antitrust
harm, and to ensure the effectiveness of claims for damages, it is appropriate
to presume that in the case of a cartel infringement, the infringement has caused
harm, in particular via a price effect. Depending on the facts of the case this
means that the cartel has caused a rise in price, or prevented a lowering of
prices which would otherwise have occurred but for the infringement. The infringing
undertaking should be free to rebut such presumption. It is appropriate to
limit this rebuttable presumption to cartels, given the secret nature of a
cartel, which increases the said information asymmetry and makes it more
difficult for the injured party to obtain the necessary evidence to prove the harm.
(36)     In the absence of Union
rules on the quantification of harm caused by a competition law infringement,
it is for the domestic legal system of each Member State and for the national
courts to determine what requirements the injured party has to meet when
proving the amount of the harm suffered, how precisely he has to prove that
amount, the methods that can be used in quantifying the amount and the
consequences of not being able to fully meet the set requirements. However,
these domestic requirements should not be less favourable than those governing
similar domestic actions (principle of equivalence), nor should they render the
exercise of the Union right to damages practically impossible or excessively
difficult (principle of effectiveness). Regard should be had in this respect to
any information asymmetries between the parties and to the fact that quantifying
the harm means assessing how the market in question would have evolved had
there been no infringement. This assessment implies a comparison with a
situation which is by definition hypothetical and can thus never be made with
complete accuracy. It is therefore appropriate to give national courts the
power to estimate the amount of the harm caused by the competition law
infringement.
(37)     Injured parties and
infringing undertakings should be encouraged to agree on compensating the harm
caused by a competition law infringement through consensual dispute resolution
mechanisms, such as out-of-court settlements, arbitration and mediation. Where
possible, such consensual dispute resolution should cover as many injured
parties and infringing undertakings as possible. The provisions in this
Directive on consensual dispute resolution are therefore meant to facilitate
the use of such mechanisms and increase their effectiveness.
(38)     Limitation periods for
bringing an action for damages could be such that they prevent injured parties
and infringing undertakings from having sufficient time to come to an agreement
on the compensation to be paid. In order to provide both with a genuine opportunity
to engage in consensual dispute resolution before bringing proceedings before
the national court, the limitation period thus needs to be suspended for the
duration of the consensual dispute resolution process.
(39)     Furthermore, when parties
decide to engage in consensual dispute resolution after an action for damages
has been brought before the national court for the same claim, that court may
suspend the proceedings before it for the duration of the consensual dispute resolution
process. When considering whether to suspend the proceedings, the national court
should take into account the interest in an expeditious procedure.
(40)     To encourage consensual
settlements, an infringing undertaking that pays damages through consensual
dispute resolution should not be placed in a worse position vis-à-vis its
co-infringers than it would be in without the consensual settlement. This might
happen if a settling infringer, even after a consensual settlement, continued
to be fully jointly and severally liable for the harm caused by the
infringement. A settling infringer should in principle therefore not contribute
to his non-settling co-infringers when the latter have paid damages to the
injured party with whom the first infringer had previously settled. The
correlate to this non-contribution rule is that the claim of the injured party
is reduced by the settling infringer’s share of the harm caused to him. This
share should be determined in accordance with the same rules used to determine
the contributions among infringing undertakings (recital (27) above). Without
such reduction, the non-settling infringers would be unduly affected by the
settlement to which they were not a party. The settling co-infringer will still
have to pay damages where that is the only possibility for the injured party to
obtain full compensation.
(41)     When settling co-infringers
are asked to contribute to damages subsequently paid by non-settling
co-infringers, the national court should take account of the damages already
paid under the consensual settlement, bearing in mind that not all
co-infringers are necessarily equally involved in the full substantive,
temporal and geographical scope of the infringement.
(42)     This Directive respects
fundamental rights and observes the principles recognised in the Charter of
Fundamental Rights of the European Union.
(43)     As it would be impossible,
with a disparity of policy choices and legal rules at national level concerning
the Union right to compensation in actions for damages for infringement of the
Union competition rules, to ensure the full effect of Articles 101 and 102 of
the Treaty, and to ensure the proper functioning of the internal market for
undertakings and consumers, these objectives cannot be sufficiently achieved by
the Member States, and can therefore, by reason of the requisite effectiveness
and consistency in the application of Articles 101 and 102 of the Treaty, be
better achieved at Union level. The European Parliament and the Council
therefore adopt this Directive, in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty on European Union. In
accordance with the principle of proportionality, as set out in that Article,
this Directive does not go beyond what is necessary in order to achieve those
objectives.
(44)     In accordance with the
Joint Political Declaration of Member States and the Commission on explanatory
documents of 28 September 2011[55],
Member States have undertaken to accompany, in justified cases, the
notification of their transposition measures with one or more documents
explaining the relationship between the components of a directive and the
corresponding parts of national transposition instruments. With regard to this
Directive, the legislator considers the transmission of such documents to be
justified. 
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
SCOPE AND DEFINITIONS
Article 1
Scope of the Directive
1.           This Directive sets out certain
rules necessary to ensure that anyone who has suffered harm caused by an
infringement of Article 101 or 102 of the Treaty or of national competition law,
can effectively exercise the right to full compensation for that harm. It also
sets out rules fostering undistorted competition in the internal market and removing
obstacles to its proper functioning by ensuring equivalent protection
throughout the Union for anyone who has suffered such harm. 
2.           This Directive also sets
out rules for the coordination between enforcement of the competition rules by
competition authorities and enforcement of those rules in damages actions
before national courts.
Article 2
Right to full compensation
1.           Anyone who has suffered
harm caused by an infringement of Union or national competition law shall be
able to claim full compensation for that harm. 
2.           Full compensation shall
place anyone who has suffered harm in the position in which that person would have been had the
infringement not been committed. It shall therefore
include compensation for actual loss and for loss of profit, and payment of
interest from the time the harm occurred until the compensation in respect of
that harm has actually been paid.
3.           Member States shall ensure
that injured parties can effectively exercise their claims for damages. 
Article 3
Principles of effectiveness and
equivalence
Member States shall ensure that all
national rules and procedures relating to actions for damages are designed and
applied in such a way as to ensure that any injured party can effectively
exercise the Union right to full compensation for harm caused by an infringement
of competition law. Any national rules and procedures relating to actions for
damages resulting from infringements of Article 101 or 102 of the Treaty shall
not be less favourable to the injured parties than those governing similar
domestic actions.
Article 4
Definitions
For the purposes of this Directive, the
following definitions shall apply:
1.           ‘infringement of
competition law’ means an infringement of Article 101 or 102 of the Treaty or
of national competition law within the meaning of paragraph 2;
2.           ‘national competition law’
means provisions of national law that predominantly pursue the same objective
as Articles 101 and 102 of the Treaty and that are applied to the same case and
in parallel to Union competition law pursuant to Article 3(1) of Regulation
(EC) No 1/2003; 
3.           ‘action for damages’ means
an action under national law by which an injured party brings a claim for
damages before a national court; it may also cover actions by which someone
acting on behalf of one or more injured parties brings a claim for damages
before a national court, where national law provides for this possibility;
4.           ‘claim for damages’ means
a claim for compensation of harm caused by an infringement of competition law;
5.           ‘injured party’ means
anyone who has a claim for damages;
6.           ‘national competition
authority’ means an authority designated by a Member State pursuant to Article
35 of Regulation (EC) No 1/2003 as being responsible for the application of
Articles 101 and 102 of the Treaty;
7.           ‘competition authority’
means the Commission or a national competition authority;
8.           ‘national court’ or ‘court’
means any court or tribunal of a Member State within the meaning of Article 267
of the Treaty;
9.           ‘review court’ means a
national court that is empowered to review decisions of a national competition
authority, in which context it may also have the power to find an infringement
of Article 101 or 102 of the Treaty;
10.         ‘infringement decision’
means a decision of a competition authority or review court that finds an infringement
of competition law;
11.         ‘final’ infringement
decision means an infringement decision of a competition authority or review
court that can no longer be reviewed;
12.         ‘cartel’ means an agreement
and/or concerted practice between two or more competitors aimed at coordinating
their competitive behaviour on the market and/or influencing the relevant
parameters of competition, through practices such as the fixing or coordination
of purchase or selling prices or other trading conditions, the allocation of
production or sales quotas, the sharing of markets and customers, including
bid-rigging, restrictions of imports or exports and/or anti-competitive actions
against other competitors;
13.         ‘leniency programme’ means
a programme on the basis of which a participant in a secret cartel,
independently of the other undertakings involved in the cartel, cooperates with
an investigation of the competition authority, by voluntarily providing presentations
of his knowledge of the cartel and his role therein, in return for which the
participant receives immunity from any fine to be imposed for the cartel or a
reduction of such fine;
14.         ‘leniency corporate
statement’ means an oral or written presentation voluntarily provided by, or on
behalf of, an undertaking to a competition authority, describing the
undertaking’s knowledge of a secret cartel and its role therein, which was
drawn up specifically for submission to the authority with a view to obtaining
immunity or a reduction of fines under a leniency programme concerning the
application of Article 101 of the Treaty or the corresponding provision under
national law; this does not include documents or information that exist
irrespective of the proceedings of a competition authority (‘pre-existing
information’);
15.         ‘settlement submission’
means a presentation voluntarily provided by, or on behalf of, an undertaking
to a competition authority describing the undertaking’s acknowledgement of its
participation in an infringement of Article 101 of the Treaty or a corresponding
provision under national law and its liability for this infringement, which was
drawn up specifically as a formal request for the authority to apply an
expedited procedure;
16.         ‘overcharge’ means any
positive difference between the price actually paid and the price that would
have prevailed in the absence of an infringement of competition law;
17.         ‘consensual settlement’
means an agreement whereby damages are paid following a consensual dispute
resolution.
CHAPTER II
DISCLOSURE OF EVIDENCE
Article 5
Disclosure of evidence
1.           Member States shall ensure
that, where a claimant has presented reasonably available facts and evidence
showing plausible grounds for suspecting that he, or those he represents, has suffered
harm caused by the defendant’s infringement of competition law, national courts
can order the defendant or a third party to disclose evidence, regardless of
whether or not this evidence is also included in the file of a competition
authority, subject to the conditions set out in this Chapter. Member States
shall ensure that courts are also able to order the claimant or a third party
to disclose evidence on request of the defendant.
This provision is without prejudice to the
rights and obligations of national courts under Council Regulation (EC) No 1206/2001.
2.           Member States shall ensure
that national courts order the disclosure of evidence referred to in paragraph
1 where the party requesting disclosure has
(a)         
shown that evidence in the control of the other
party or a third party is relevant in terms of substantiating his claim or
defence; and
(b)         
specified either pieces of this evidence or
categories of this evidence defined as precisely and narrowly as he can on the
basis of reasonably available facts.
3.           Member States shall ensure
that national courts limit disclosure of evidence to that which is
proportionate. In determining whether any disclosure requested by a party is
proportionate, national courts shall consider the legitimate interests of all
parties and third parties concerned. They shall, in particular, consider:
(a)         
the likelihood that the alleged infringement of
competition law occurred;
(b)         
the scope and cost of disclosure, especially for
any third parties concerned;
(c)         
whether the evidence to be disclosed contains
confidential information, especially concerning any third parties, and the arrangements
for protecting such confidential information; and 
(d)         
in cases where the infringement is being or has
been investigated by a competition authority, whether the request has been
formulated specifically with regard to the nature, object or content of such
documents rather than by a non-specific request concerning documents submitted
to a competition authority or held in the file of such competition authority. 
4.           Member States shall ensure
that national courts have at their disposal effective measures to protect
confidential information from improper use to the greatest extent possible whilst
also ensuring that relevant evidence containing such information is available
in the action for damages.
5.           Member States shall take
the necessary measures to give full effect to legal privileges and other rights
not to be compelled to disclose evidence.
6.           Member States shall ensure
that, to the extent that their courts have powers to order disclosure without
hearing the person from whom disclosure is sought, no penalty for
non-compliance with such an order may be imposed until the addressee of such an
order has been heard by the court.
7.           Evidence shall include all
types of evidence admissible before the national court seised, in particular
documents and all other objects containing information, irrespective of the
medium on which the information is stored.
8.           Without prejudice to the
obligation laid down in paragraph 4 and the limits laid down in Article 6, this
Article shall not prevent the Member States from maintaining or introducing
rules which would lead to wider disclosure of evidence.
Article 6
Limits on the disclosure of
evidence from the file of a competition authority
1.           Member States shall ensure
that, for the purpose of actions for damages, national courts cannot at any
time order a party or a third party to disclose any of the following categories
of evidence:
(a)         
leniency corporate statements; and
(b)         
settlement submissions.
2.           Member States shall ensure
that, for the purpose of actions for damages, national courts can order the
disclosure of the following categories of evidence only after a competition
authority has closed its proceedings or taken a decision referred to in Article
5 of Regulation No 1/2003 or in Chapter III of Regulation No 1/2003:
(a)         
information that was prepared by a natural or
legal person specifically for the proceedings of a competition authority; 
(b)         
information that was drawn up by a competition
authority in the course of its proceedings.
3.           Disclosure of evidence in
the file of a competition authority that does not fall into any of the
categories listed in paragraphs 1 or 2 of this Article may be ordered in
actions for damages at any time. 
Article 7
Limits on the use of evidence
obtained solely through access to the file of a competition authority
1.           Member States shall ensure
that evidence falling into one of the categories listed in Article 6(1) which is
obtained by a natural or legal person solely through access to the file of a
competition authority in exercise of his rights of defence under Article 27 of
Regulation No 1/2003 or corresponding provisions of national law is not
admissible in actions for damages.
2.           Member States shall ensure
that evidence falling within one of the categories listed in Article 6,
paragraph 2 which is obtained by a natural or legal person solely through
access to the file of a competition authority in exercise of his rights of
defence under Article 27 of Regulation No 1/2003 or corresponding provisions of
national law is not admissible in actions for damages until that competition
authority has closed its proceedings or taken a decision referred to in Article
5 of Regulation No 1/2003 or in Chapter III of Regulation No 1/2003.
3.           Member States shall ensure
that evidence which is obtained by a natural or legal person solely through
access to the file of a competition authority in exercise of his rights of
defence under Article 27 of Regulation No 1/2003 or corresponding provisions of
national law, and which is not inadmissible pursuant to paragraphs 1 or 2 of
this Article, can only be used in an action for damages by that person or by
the natural or legal person that succeeded in his rights, including the person
that acquired his claim.
Article 8
Sanctions
1.           Member States shall ensure
that national courts can impose sanctions on parties, third parties and their
legal representatives in the event of:
(a)         
failure or refusal to comply with any court’s
disclosure order;
(b)         
the destruction of relevant evidence, provided
that, at the time of destruction:
(i)      the destroying party was or had been
a party to the proceedings of a competition authority in relation to the
conduct underlying the action for damages; or
(ii)      the destroying party knew or should reasonably
have known that an action for damages had been brought before the national
court and that the evidence was of relevance in substantiating either the claim
for damages or a defence against it; or
(iii)     the destroying party knew that the
evidence was of relevance to pending or prospective actions for damages brought
by it or against it;
(c)         
failure or refusal to comply with the
obligations imposed by a court order protecting confidential information; or
(d)         
abuse of the rights relating to disclosure of
evidence provided for in this Chapter, and of the evidence and information
obtained thereunder.
2.           Member States shall ensure
that the sanctions that can be imposed by national courts are effective,
proportionate and dissuasive. The sanctions available to national courts shall
include, insofar as the behaviour of a party to damages action proceedings is
concerned, the possibility to draw adverse inferences, such as presuming the
relevant issue to be proven or dismissing claims and defences in whole or in
part, and the possibility to order the payment of costs.
CHAPTER III
EFFECT OF NATIONAL DECISIONS, LIMITATION
PERIODS, JOINT AND SEVERAL LIABILITY
Article 9
Effect of national decisions
Member States
shall ensure that, where national courts rule, in actions for damages under
Article 101 or 102 of the Treaty or under national competition law, on
agreements, decisions or practices which are already the subject of a final
infringement decision by a national competition authority or by a review court,
those courts cannot take decisions running counter to such finding of an
infringement. This obligation is without prejudice to the rights and
obligations under Article 267 of the Treaty.
Article 10
Limitation periods
1.           Member States shall lay
down the rules applicable to limitation periods for bringing actions for
damages in accordance with this Article. Those rules shall determine when the
limitation period begins to run, the duration of the period and the
circumstances under which the period can be interrupted or suspended. 
2.           Member States shall ensure
that the limitation period shall not begin to run before an injured party
knows, or can reasonably be expected to have knowledge of:
(i)      the behaviour constituting the
infringement;
(ii)     the qualification of such behaviour as
an infringement of Union or national competition law;
(iii)     the fact that the infringement
caused harm to him; and
(iv)    the identity of the infringer who
caused such harm.
3.           Member States shall ensure
that the limitation period does not begin to run before the day on which a
continuous or repeated infringement ceases.
4.           Member States shall ensure
that the limitation period for bringing an action for damages is at least five
years. 
5.           Member States shall ensure
that the limitation period is suspended if a competition authority takes action
for the purpose of the investigation or proceedings in respect of an
infringement to which the action for damages relates. The suspension shall end
at the earliest one year after the infringement decision has become final or
the proceedings are otherwise terminated.
Article 11
Joint and several liability
1.           Member States shall ensure
that undertakings which have infringed competition law through joint behaviour
are jointly and severally liable for the damage caused by the infringement:
each of the infringing undertakings is bound to compensate for the harm in full,
and the injured party may require full compensation from any of them until he has
been fully compensated. 
2.           Member States shall ensure
that an undertaking which has been granted immunity from fines by a competition
authority under a leniency programme shall be liable to injured parties other
than its direct or indirect purchasers or providers only when such injured
parties show that they are unable to obtain full compensation from the other
undertakings that were involved in the same infringement of competition law. 
3.           Member States shall ensure
that an infringing undertaking may recover a contribution from any other
infringing undertaking, the amount of which shall be determined in the light of
their relative responsibility for the harm caused by the infringement. The
amount of contribution of an undertaking which has been granted immunity from
fines by a competition authority under a leniency programme shall not exceed
the amount of the harm it caused to its own direct or indirect purchasers or
providers.
4.           Member States shall ensure
that, to the extent the infringement caused harm to injured parties other than
the direct or indirect purchasers or providers of the infringing undertakings,
the amount of contribution of the immunity recipient shall be determined in the
light of its relative responsibility for that harm.
CHAPTER IV
PASSING-ON OF OVERCHARGES
Article 12
Passing-on defence
1.           Member States shall ensure
that the defendant in an action for damages can invoke as a defence against a
claim for damages the fact that the claimant passed on the whole or part of the
overcharge resulting from the infringement. The burden of proving that the
overcharge was passed on shall rest with the defendant.
2.           Insofar as the overcharge
has been passed on to persons at the next level of the supply chain for whom it
is legally impossible to claim compensation for their harm, the defendant shall
not be able to invoke the defence referred to in the preceding paragraph.
Article 13
Indirect purchasers
1.           Member States shall ensure
that, where in an action for damages the existence of a claim for damages or
the amount of compensation to be awarded depends on whether — or to what degree
— an overcharge was passed on to the claimant, the burden of proving the
existence and scope of such pass-on shall rest with the claimant.
2.           In the situation referred
to in paragraph 1 of this Article, the indirect purchaser shall be deemed to
have proven that a passing-on to him occurred where he has shown that:
(a)         
the defendant has committed an infringement of
competition law;
(b)         
the infringement resulted in an overcharge for
the direct purchaser of the defendant; and
(c)         
he purchased the goods or services that were the
subject of the infringement, or purchased goods or services derived from or
containing the goods or services that were the subject of the infringement.
Member States shall ensure that the court has
the power to estimate which share of that overcharge was passed on. 
This paragraph shall be without prejudice to
the infringer's right to show that the overcharge was not, or not entirely,
passed on to the indirect purchaser.
Article 14
Loss of profits and infringement
at supply level
1.           The rules laid down in
this Chapter shall be without prejudice to the right of an injured party to
claim compensation for loss of profits.
2.           Member States shall ensure
that the rules laid down in this Chapter apply accordingly where the
infringement of competition law relates to supply to the infringing
undertaking.
Article 15
Actions for damages by claimants from different levels in the supply chain
1.           Member States shall ensure
that, in assessing whether the burden of proof resulting from the application
of Article 13 is satisfied, national courts seized of an action for damages
take due account of
(a)         
actions for damages that are related to the same
infringement of competition law, but are brought by claimants from other levels
in the supply chain; or
(b)         
judgments resulting from such actions.
2.           This Article shall be without
prejudice to the rights and obligations of national courts under Article 30 of
Regulation (EU) No 1215/2012.
CHAPTER V
QUANTIFICATION OF HARM
Article 16
Quantification of harm
1.           Member States shall ensure
that, in the case of a cartel infringement, it shall be presumed that the
infringement caused harm. The infringing undertaking shall have the right to
rebut this presumption.
2.           Member States shall ensure
that the burden and the level of proof and of fact-pleading required for the
quantification of harm does not render the exercise of the injured party’s
right to damages practically impossible or excessively difficult. Member States
shall provide that the court be granted the power to estimate the amount of
harm.
CHAPTER VI
CONSENSUAL DISPUTE RESOLUTION
Article 17
Suspensive effect of consensual
dispute resolution
1.           Member States shall ensure
that the limitation period for bringing an action for damages is suspended for
the duration of the consensual dispute resolution process. The suspension of
the limitation period shall apply only with regard to those parties that are or
were involved in the consensual dispute resolution.
2.           Member States shall ensure
that national courts seized of an action for damages may suspend proceedings where
the parties to those proceedings are involved in consensual dispute resolution
concerning the claim covered by that action for damages.
Article 18
Effect of consensual settlements
on subsequent actions for damages
1.           Member States shall ensure
that, following a consensual settlement, the claim of the settling injured
party is reduced by the settling co-infringer’s share of the harm that the
infringement inflicted upon the injured party. Non-settling co-infringers
cannot recover contribution from the settling co-infringer for the remaining
claim. Only when the non-settling co-infringers are not able to pay the damages
that correspond to the remaining claim can the settling co-infringer be held to
pay damages to the settling injured party.
2.           When determining the
contribution of each co-infringer, national courts shall take due account of
any prior consensual settlement involving the relevant co-infringer.
CHAPTERVII
FINAL
PROVISIONS
Article 19
Review
The Commission shall review this Directive
and report to the European Parliament and the Council by [...] at the latest [to
be calculated as 5 years after the date set as the deadline for transposition
of this Directive.]
Article 20
Transposition
1.           Member States shall bring
into force the laws, regulations and administrative provisions necessary to
comply with this Directive by [to be calculated as 2 years after the date of
adoption of this Directive] at the latest. They shall forthwith
communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they
shall contain a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. Member States shall
determine how such reference is to be made.
2.           Member States shall
communicate to the Commission the text of the main provisions of national law
which they adopt in the field covered by this Directive.
Article 21
Entry into force
This Directive shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union.
Article 22
Addressees
This
Directive is addressed to the Member States.
Done at Strasbourg,
For the European Parliament                       For
the Council
LEGISLATIVE FINANCIAL STATEMENT
This
proposal has no impact on the EU budget.
[1]               Council Regulation (EC) No 1/2003 of 16 December 2002
on the implementation of the rules on competition laid down in Articles 81 and
82 of the Treaty, OJ L 1, 4.1.2003, p. 1. With effect from 1 December 2009,
Articles 81 and 82 of the EC Treaty have become Articles 101 and 102 of the
Treaty. Their substance has not been changed.
[2]               Articles 4 and 5 of Regulation No 1/2003,
respectively.
[3]               Article 23 of Regulation No 1/2003.
[4]               Article 6 of Regulation No 1/2003; see also Case
127/73, BRT v. SABAM, [1974] ECR 51, paragraph 16; Case C-282/95 P, Guérin
Automobiles v Commission, [1997] ECR I-1503, paragraph 39.
[5]               See Case C-453/99, Courage and Crehan, [2001]
ECR I-6297; Joined Cases C-295/04 to C-298/04, Manfredi, [2006] ECR
I-6619; Case C-360/09, Pfleiderer AG v Bundeskartellamt, [2011] ECR
I-5161; and Case C-199/11 European Community v. Otis NV and others,
[2012] ECR I-0000.
[6]               Manfredi, see fn 5, paragraph 95.
[7]               Case C-360/09, Pfleiderer AG v Bundeskartellamt,
[2011] ECR I-5161.
[8]               COM(2008) 165 final; see also Commission Staff
Working Paper annexed to the White Paper, SEC(2008) 404.
[9]               Public consultation ‘Towards a coherent European
approach to collective redress’, see http://ec.europa.eu/competition/consultations/2011_collective_redress/index_en.html.
[10]             Resolution of the Meeting of the Heads of the European
Competition Authorities of 23 May 2012, Protection of leniency material in the
context of civil damages actions, available at: http://ec.europa.eu/competition/ecn/leniency_material_protection_en.pdf.
[11]             See the European Parliament resolutions 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
and on the Annual Report on EU Competition Policy (2011/2094(INI))
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2012-31.
[12]             COM(2005) 672final; see also Commission Staff Working
Paper annexed to the Green Paper, SEC(2005) 1732.
[13]             European Parliament Resolution of 26 March 2009 on the
White Paper on damages actions for breach of the EC antitrust rules
(2008/2154(INI)).

[14]             European
Economic and Social Committee Opinion of 25 March 2009 on the White
Paper on damages actions for breach of the EC antitrust rules, OJ C 228, 22.09.2009, p. 40.

[15]             See European Parliament Resolution of 2 February 2012
on the Annual Report on EU Competition Policy (2011/2094(INI)).
[16]             OJ C 101, 27.4.2004, p. 54.
[17]             Council Regulation (EC) No 44/2001 of 22 December 2000
on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters, OJ L 12, 16.1.2001, p. 1. This Regulation has been recently
replaced by Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction
and the recognition and enforcement of judgments in civil and commercial
matters, OJ L 351, 20.12.2012, p. 1, which for the most part will enter
into force on 10 January 2015.
[18]             Council Regulation (EC) No 1206/2001 of 28 May 2001 on
cooperation between the courts of the Member States in the taking of evidence
in civil or commercial matters, OJ L 174, 27.6.2001, p. 1.
[19]             Regulation (EC) No 864/2007 of the European Parliament
and of the Council of 11 July 2007 on the law applicable to non-contractual
obligations (Rome II), OJ L 199, 31.7.2007, p. 40.
[20]             Regulation
(EC) No 861/2007 of the European Parliament and of the Council of 11 July
2007 establishing a European Small Claims Procedure, OJ L 199, 31.07.2007, p. 1.
[21]             Directive 2008/52/EC of the European Parliament and of
the Council of 21 May 2008 on certain aspects of mediation in civil and
commercial matters, OJ L 136, 24.5.2008, p. 3.
[22]             Commission Regulation (EC) No 773/2004 of 7 April 2004
relating to the conduct of proceedings by the Commission pursuant to Articles
81 and 82 of the EC Treaty, OJ L 123/18, 27.4.2004, p. 18.
[23]             Commission Notice on the rules for access to the
Commission file in cases pursuant to Articles 81 and 82 of the EC Treaty,
Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No
139/2004, OJ C 325/07, 22.12.2005, p. 7.
[24]             Commission Notice on immunity from fines and reduction
of fines in cartel cases, OJ C 298, 08.12.2006, p. 17.
[25]             OJ 2008/C 167/1.
[26]             The
written comments received by the Commission during the public consultation can
be accessed here: http://ec.europa.eu/competition/antitrust/actionsdamages/green_paper_comments.html
(Green Paper consultation) and here: http://ec.europa.eu/competition/antitrust/actionsdamages/white_paper_comments.html
(White Paper consultation).
[27]             See
fn. 9 above.
[28]             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.
[29]             Communication from the Commission to the European
Parliament, the Council, the European Economic and Social Committee and the
Committee of the Regions, Towards a European Horizontal Framework for
Collective Redress, COM(2013) 401 final.
[30]             Commission Recommendation on common principles for
injunctive and compensatory collective redress mechanisms in the Member States
concerning violations of rights granted under Union Law, C(2013) 3539 final. 
[31]             Public
consultation on a Draft Guidance Paper − Quantifying harm in actions for
damages based on breaches of Article 101 or 102 of the Treaty, accessible at: http://ec.europa.eu/competition/consultations/2011_actions_damages/index_en.html.
[32]             The submissions received under the public consultation
are available at: http://ec.europa.eu/competition/consultations/2011_actions_damages/index_en.html#contributions.
[33]             ‘Study on the conditions of claims for damages in case
of infringement of EC competition rules’, accessible at: http://ec.europa.eu/competition/antitrust/actionsdamages/study.html.
[34]             ‘Making
antitrust damages actions more effective in the EU: welfare impact and
potential scenarios’, accessible at: http://ec.europa.eu/competition/antitrust/actionsdamages/files_white_paper/impact_study.pdf.
[35]             ‘Quantifying
antitrust damages — Towards non-binding guidance for courts’, accessible at: http://ec.europa.eu/competition/antitrust/actionsdamages/quantification_study.pdf.
[36]             Commission Staff Working Document, Impact Assessment
Report, Damages actions for breach of the EU antitrust rules, Strasbourg
11-6-2013, SWD(2013) 203 final. 
[37]             See fn. 5 above.
[38]             See fn. 33 above. 
[39]             See further under section 4.1 below.
[40]             Article 3(1) of Regulation No 1/2003. 
[41]             e.g. with regard to the passing-on defence, see section
4.4 below.
[42]             Directive 2004/48/EC of the European Parliament and of
the Council of 29 April 2004 on the enforcement of intellectual property
rights, OJ L 157, 30.04.2004, p. 45.
[43]             Obviously, the same limitation applies when national
courts order the disclosure of documents of category (b) above, once a
competition authority has closed its proceedings.
[44]             Commission Regulation (EC) No 773/2004 of 7 April 2004
relating to the conduct of proceedings by the Commission pursuant to Articles
81 and 82 of the EC Treaty, OJ L123, 27.04.2004, p. 18.
[45]             Commission Notice on the cooperation between the
Commission and the courts of the EU Member States in the application of
Articles 81 and 82 EC, OJ C101, 27.4.2004, p. 54; Commission Notice on the
rules for access to the Commission file in cases pursuant to Articles 81 and 82
of the EC Treaty, Articles 53, 54 and 57 of the EEA Agreement and Council
Regulation (EC) No 139/2004, OJ C 325, 22.12.2005, p. 7; and Commission Notice
on the conduct of settlement procedures in view of the adoption of Decisions
pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in
cartel cases, OJ C 167, 2.7.2008, p. 1.
[46]             Case C-199/11 European Community v Otis and others,
[2012] ECR I-0000.
[47]             Regulation (EU) No 1215/2012 of the European Parliament
and of the Council of 12 December 2012 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters, OJ L 351, 20.12.2012,
p. 1.
[48]             ‘Quantifying antitrust damages — Towards non-binding
guidance for courts’, accessible at: http://ec.europa.eu/competition/antitrust/actionsdamages/quantification_study.pdf,
p. 91.
[49]             Communication from the Commission on quantifying harm
in actions for damages based on breaches of Article 101 or 102 of the Treaty on
the Functioning of the European Union, C(2013) 3440.
[50]             OJ C , , p. .
[51]             OJ C , , p. .
[52]             OJ L 1, 4.1.2003, p. 1. With effect from 1 December
2009, Articles 81 and 82 of the EC Treaty have become respectively Articles 101
and 102 TFEU. The two sets of provisions are identical in substance. 
[53]             OJ C 326, 26.10.2012, p. 391.
[54]             OJ L 174, 27.6.2001, p. 1.
[55]             OJ C 369, 17.12.2011, p. 14.