19 Amendments of Olle SCHMIDT related to 2013/0185(COD)
Amendment 14 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) Respective of the prerogative of Member States to introduce different collective redress schemes, Member States should be encouraged, when setting up such scheme, to introduce an opt-in system and to refrain from foreseeing the use of a contingency fee, third party funding and the possibility to award punitive damages.
Amendment 17 #
Proposal for a directive
Recital 11
Recital 11
(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.
Amendment 19 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) The correct enforcement of competition law and the effective exercise by both business and consumers of their right to compensation are tightly interwoven and key in achieving competitive growth. A European right to collective redress will, in this regard, contribute to the completion of the internal market and the development of a genuine area of freedom, security and justice.
Amendment 30 #
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 40 #
Proposal for a directive
Article 4 – paragraph 1 – point 3
Article 4 – paragraph 1 – point 3
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 shall provides for this possibility especially in regards to collective redress;
Amendment 42 #
Proposal for a directive
Article 4 – paragraph 1 – point 3 a (new)
Article 4 – paragraph 1 – point 3 a (new)
3a. ‘collective redress’ means: (i) a legal mechanism that ensures a possibility to claim cessation of illegal behaviour collectively by two or more natural or legal persons or by an entity entitled to bring a representative action (injunctive collective redress); (ii) a legal mechanism that ensures a possibility to claim compensation collectively by two or more natural or legal persons claiming to have been harmed in a mass harm situation or by an entity entitled to bring a representative action (compensatory collective redress);
Amendment 64 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) leniency corporate statementsall newly produced incriminating documents provided by a leniency applicant; and
Amendment 68 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) Respective of the prerogative of Member States to introduce different collective redress schemes, Member States should be encouraged, when setting up such scheme, to introduce an opt-in system and to refrain from foreseeing the use of a contingency fee, third party funding and the possibility to award punitive damages.
Amendment 78 #
Proposal for a directive
Recital 11
Recital 11
(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.
Amendment 82 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point b
Article 13 – paragraph 2 – subparagraph 1 – point b
Amendment 84 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) The correct enforcement of competition law and the effective exercise by both businesses and consumers of their right to compensation are tightly interwoven and key in achieving competitive growth. A European right to collective redress will, in this regard, contribute to the completion of the internal market and the development of a genuine area of freedom, security and justice.
Amendment 90 #
Proposal for a directive
Recital 21 a (new)
Recital 21 a (new)
(21a) To ensure that individuals have the incentive to come forward and help competition authorities in their work against cartels, the protection of individuals coming forward with information must be explicitly included in the directive. However, only personal data and information linked to personal data should be included in the information that national courts cannot at any time order a party or third party to disclose.
Amendment 94 #
Proposal for a directive
Recital 36
Recital 36
(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. In this estimation emphasise shall be given to the injured party's estimation of the harm.
Amendment 97 #
Proposal for a directive
Recital 41 a (new)
Recital 41 a (new)
(41a) The costs of legal procedures should not deter claimants from bringing well- founded actions in front of national courts. Therefore Members States should take appropriate measures to arrange for injured parties to access finance for a damage claim. This can be done through a fund, financed from fines paid by infringers, supporting claimants financially in order to get an indicative verdict of the action for damages.
Amendment 118 #
Proposal for a directive
Article 4 – paragraph 1 – point 3 a (new)
Article 4 – paragraph 1 – point 3 a (new)
3a. 'collective redress' means: (i) a legal mechanism that ensures a possibility to claim cessation of illegal behaviour collectively by two or more natural or legal persons or by an entity entitled to bring a representative action (injunctive collective redress); (ii) a legal mechanism that ensures a possibility to claim compensation collectively by two or more natural or legal persons claiming to have been harmed in a mass harm situation or by an entity entitled to bring a representative action (compensatory collective redress);
Amendment 161 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) leniency corporate statementsall newly produced incriminating documents provided by a leniency applicant; and
Amendment 180 #
Proposal for a directive
Article 7 a (new)
Article 7 a (new)
Article 7 a Protection of whistle-blowers 1. Any person who has reasonable grounds to believe that a company has committed or intends to commit an offence under this Union competition law, may notify a competition authority of the particulars of the matter and may request that his or her identity be kept confidential with respect to the notification. 2. The competition authority shall keep confidential the identity of a person who has notified the competition authority and to whom an assurance of confidentiality has been provided by any person who performs duties or functions in the administration or enforcement of Union competition law.
Amendment 221 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
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 on the basis of the injured party's estimation the court be granted the power to estimate the amount of harm.
Amendment 227 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
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.] The review shall include a post-implementation assessment of the functioning of collective redress and collective ADR mechanisms within competition law enforcement and compensation for harm suffered from competition law infringement. The report shall explicitly evaluate the possibility of widening the applications of collective redress and collective ADR mechanisms to other sectors at EU level to ensure effective consumer protection and a functioning internal market.