Activities of Klaus-Heiner LEHNE related to 2013/0185(COD)
Legal basis opinions (0)
Amendments (29)
Amendment 36 #
Proposal for a directive
Recital 13
Recital 13
(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.
Amendment 38 #
Proposal for a directive
Recital 14
Recital 14
(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.
Amendment 39 #
Proposal for a directive
Recital 15
Recital 15
(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.
Amendment 43 #
Proposal for a directive
Recital 19
Recital 19
(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, courts should assess whether such statements should be excepted from disclosure of evidence.
Amendment 44 #
Proposal for a directive
Recital 24
Recital 24
Amendment 45 #
Proposal for a directive
Recital 26
Recital 26
(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. Member States should be allowed to maintain or introduce absolute limitation periods that are generally applicable.
Amendment 46 #
Proposal for a directive
Recital 28
Recital 28
(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.
Amendment 48 #
Proposal for a directive
Recital 31
Recital 31
(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.
Amendment 49 #
Proposal for a directive
Recital 41
Recital 41
Amendment 65 #
Proposal for a directive
Article 5 – paragraph 1 – subparagraph 1
Article 5 – paragraph 1 – subparagraph 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.
Amendment 66 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
Amendment 70 #
Proposal for a directive
Article 5 – paragraph 3 – point b a (new)
Article 5 – paragraph 3 – point b a (new)
(ba) the likelihood that the evidence is included in the file of a competition authority;
Amendment 72 #
Proposal for a directive
Article 5 – paragraph 3 – point d
Article 5 – paragraph 3 – point d
Amendment 82 #
Proposal for a directive
Article 5 – paragraph 8
Article 5 – paragraph 8
Amendment 84 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. Member States shall ensure that, for the purpose of actions for damages, national courts cannot at any time order a party orshall in general not order a competition a uthird parority to disclose any of the following categories of evidence:
Amendment 95 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
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 5 (3)to (7) shall apply mutatis mutandis.
Amendment 96 #
Proposal for a directive
Article 7
Article 7
Amendment 100 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
Amendment 105 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
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 proceeding in the event of failure or refusal to comply with any court's dis 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 costsclosure order or order protecting confidential information.
Amendment 107 #
Proposal for a directive
Article 10 – paragraph 2 – introductory part
Article 10 – paragraph 2 – introductory part
2. Member States shall ensure that the limitation period shall not begin to run before the infringement has ceased an injured party knows, or can reasonably be expected to have knowledge of:
Amendment 108 #
Proposal for a directive
Article 10 – paragraph 2 – point ii
Article 10 – paragraph 2 – point ii
Amendment 110 #
Proposal for a directive
Article 10 – paragraph 3
Article 10 – paragraph 3
Amendment 113 #
Proposal for a directive
Article 10 – paragraph 4
Article 10 – paragraph 4
4. Member States shall ensure that the limitation period for bringing an action for damages is at least fivethree years but not longer than 10 years.
Amendment 115 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
Amendment 120 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
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 in general rest with the defendant.
Amendment 122 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – introductory part
Article 13 – paragraph 2 – subparagraph 1 – introductory part
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 at least:
Amendment 129 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point b
Article 13 – paragraph 2 – subparagraph 1 – point b
(b) the infringement resulted in an overcharge for the direct purchaser of the defendant and an overcharge was passed on to him in part or whole; and
Amendment 137 #
Proposal for a directive
Article 17 – paragraph 2 a (new)
Article 17 – paragraph 2 a (new)
2a. Member States shall ensure that competition authorities can suspend proceedings for the duration of the consensual dispute resolution process. Following a consensual settlement, a competition authority shall consider the compensation paid or committed to be paid as a mitigating factor when setting fines.
Amendment 139 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
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.