2013/0185(COD) | [ParlTrack]

Proposal for a directive
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 15 #

Proposal for a directive
Recital 5 a (new)

(5a) Effective means for consumers and undertakings to obtain damages will deter undertakings from committing infringements and will ensure greater compliance with the Union competition rules. Accordingly, in the interests of enhancing public enforcement of competition rules in the Union, cost- effective, timely and efficient compensation of victims of breaches of those rules should be encouraged. To that end, compensation of victims following a consensual dispute resolution process should be considered to be a mitigating factor by the competition authorities in the setting of fines. Encouraging consensual compensation of victims should be without prejudice to the need for harmonisation of the rules in the Members States governing actions for damages for infringements of national or Union competition law.

Amendment 16 #

Proposal for a directive
Recital 5 b (new)

(5b) In accordance with recent European Parliament resolutions on Commission Annual Competition Reports, the fines adopted by the Commission, including in relation to undertakings benefiting pursuant to a leniency policy, should take into account any compensation already paid to victims and the parties should be encouraged to reach out-of-court settlements before a final decision on a fine is taken.

Amendment 17 #

Proposal for a directive
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 18 #

Proposal for a directive
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, without prejudice to the kind of interest recognised under national law. 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)

(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 20 #

Proposal for a directive
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 21 #

Proposal for a directive
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, s~~uch statements should be excep~~tatements and documents containing self-incriminating evidence produced for the purposes of applications for leniency and disclosed by the applicant for leniency, should, in principle, be protected from disclosure of evidence.

Amendment 22 #

Proposal for a directive
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, such~~, leniency corporate statements should be excepted from disclosure of evidence.

Amendment 23 #

Proposal for a directive
Recital 20

(20) In addition, an exception to disclosure should apply to any disclosure measure that would unduly interfere with an on-going 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.deleted

Amendment 24 #

Proposal for a directive
Recital 21

(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’).deleted

Amendment 25 #

Proposal for a directive
Recital 23

(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)~~Protection from disclosure 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.

Amendment 26 #

Proposal for a directive
Recital 24

(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 and effectively 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.

Amendment 27 #

Proposal for a directive
Recital 25

(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~~, or endorsing a finding of, an infringement, or no infringement, of Article 101 or 102 of the Treaty in actions for damages relating to the same ~~infringement~~case, regardless of whether or not the action is brought in the Member State of the national competition 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~~competition 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, to the right to an effective remedy and a fair trial and the right of defence pursuant to Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, and to the right to a fair hearing pursuant to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Accordingly, decisions of national competition authorities and competition courts shall be binding provided that there were no manifest errors in the investigation and provided that the rights of the defence were complied with.

Amendment 28 #

Proposal for a directive
Recital 28

(28) Undertakings which cooperate with competition authorities under a leniency programme play a key role in detecting ~~secret cartel infringement~~anticompetitive agreements, decisions or practices 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 29 #

Proposal for a directive
Recital 30

(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.deleted

Amendment 30 #

Proposal for a directive
Recital 31

Amendment 31 #

Proposal for a directive
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. I~~t 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~~n order to prove the existence of passing-on, the indirect purchaser should therefore at least show that the defendant has committed an infringement of competition law, that the infringement resulted in an overcharge ~~paid by~~for the direct purchaser of the ~~infringing undertaking has been passed on to the indirect purchaser, the latter is regarded a~~defendant, that the indirect purchaser purchased the goods or services tha~~ving brought the proof that an overcharge paid by that direct purchaser has been passed on to his level, wh~~t were the subject of the infringement or purchased goods or services derived from or containing the goods or services that were the ~~is able to show prima facie that such passing-on has occurred. It is furthermore appropriate to define under what conditions~~ subject of the infringement, that the indirect purchaser purchased those goods or services from the direct purchaser or from another indirect purchaser ~~is to be regarded as~~ who is directly linked through the supply chavin~~g established such prima facie proof~~ to the defendant and that he purchased those goods or services with an overcharge. 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 32 #

Proposal for a directive
Recital 35

(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 necessarynational courts should be granted the power to establish the existence and estimate the amount of harm taking into account the presentation of evidence ~~to prove~~by the hparmties.

Amendment 33 #

Proposal for a directive
Recital 35

(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 or other hardcore by object infringements, the infringement has caused harm, in particular via a price effect. Depending on the facts of the case this means that the ~~cartel~~hardcore infringement 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.

Amendment 34 #

Proposal for a directive
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. The courts should be assisted in this rather complex task by clear, simple, comprehensible, easily applicable and sufficiently updated guidance issued by the Commission.

Amendment 35 #

Proposal for a directive
Recital 37

(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 regarding collective redress shall respectively apply in the context of collective Alternative Dispute Resolution (ADR) mechanisms. The provisions in this Directive on consensual dispute resolution are therefore meant to facilitate the use of such mechanisms and increase their effectiveness.

Amendment 36 #

Proposal for a directive
Recital 40

(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.~~

Amendment 37 #

Proposal for a directive
Article 2 – paragraph 1

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, without prejudice to any requirement under national law to establish liability.

Amendment 38 #

Proposal for a directive
Article 2 – paragraph 2 a (new)

2a. Member States shall ensure that overcompensation is excluded.

Amendment 39 #

Proposal for a directive
Article 2 – paragraph 3

3. Member States shall ensure that injured parties can effectively exercise their claims for damages and obtain actual enforcement of redress.

Amendment 40 #

Proposal for a directive
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 41 #

Proposal for a directive
Article 4 – paragraph 1 – point 3

3. ‘action for damages’ means an action under national law by which an injured party brings individual or jointly a claim for damages before a national court; it ~~may~~ also covers 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~~;

Amendment 42 #

Proposal for a directive
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 43 #

Proposal for a directive
Article 4 – paragraph 1 – point 13

13. ‘leniency programme’ means a programme on the basis of which a participant in a ~~secret cartel~~n anticompetitive agreement, decision or practice, independently of the other undertakings involved in th~~e cartel~~at agreement, decision or practice, cooperates with an investigation of the competition authority, by voluntarily providing presentations of his knowledge of the ~~cartel~~agreement, decision or practice and his role therein, in return for which the participant receives immunity from any fine to be imposed for the ~~cartel~~agreement, decision or practice or a reduction of such fine;

Amendment 44 #

Proposal for a directive
Article 4 – paragraph 1 – point 14

14. ‘leniency corporate statement’ means an oral or written presentation voluntarily provided by, or on behalf of, an undertaking to a competition authority, at any moment during the procedure, describing the undertaking’s knowledge of a ~~secret cartel~~n anticompetitive agreement, decision or practice 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 including any annexes to this statement; this does not include documents or information that exist irrespective of the proceedings of a competition authority (‘pre-existing information’);

Amendment 45 #

Proposal for a directive
Article 4 – paragraph 1 – point 15

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;deleted

Amendment 46 #

Proposal for a directive
Article 4 – paragraph 1 – point 17

17. ‘consensual settlement’ means an agreement whereby damages are paid following a consensual dispute resolution. including an agreement pursuant to which an undertaking commits to paying damages to the victims of breaches of the competition rules from a secured compensation fund;

Amendment 47 #

Proposal for a directive
Article 5 – paragraph 1 – subparagraph 1

Member States shall ensure that, for the purpose of actions for damages, national courts cannot, in principle, order a party or a third party to disclose leniency statements or any other document containing self-incriminating evidence disclosed by the applicant for leniency. However, where a claimant has presented reasonably available facts and evidence s~~howing plausible grounds for suspecting~~ufficient to support plausibly that he, or those he represents, has suffered harm caused by the defendant’s infringement of the competition ~~law~~rules and that the leniency statement or any other document containing self-incriminating evidence disclosed by the applicant for leniency applicant is indispensable to supporting their claim and contains evidence that cannot be otherwise provided, national courts ~~can~~may order the defendant or a third party to disclose evidence, regardless of whether or not thisat evidence is also included in the file of athe competition authority, subject to the conditions set out in this Chapter. Member States shall ensure that national courts are also able to order the claimant or a third party to disclose evidence on request of the defendant.

Amendment 48 #

Proposal for a directive
Article 5 – paragraph 2 – point a

(a) s~~hown that~~pecified evidence which lies in the control of the other party or a third party and which is relevant in terms of substantiating his claim or defence; ~~and~~

Amendment 49 #

Proposal for a directive
Article 5 – paragraph 2 – point b a (new)

(ba) demonstrated that it is pursuing the request for disclosure of evidence for an identified action for damages that has been introduced before a national court in the Union; and

Amendment 50 #

Proposal for a directive
Article 5 – paragraph 2 – point b b (new)

(bb) demonstrated to the satisfaction of the national court to which the request is made that the evidence obtained will not be used by the requesting party or any party related to it in any other proceedings and that it shall not be made available by the requesting party or any party related to it to any third party except express authorisation of the national court before which the identified action for damages is pending.

Amendment 51 #

Proposal for a directive
Article 5 – paragraph 2 a (new)

2a. Member States shall ensure that national courts may order the disclosure of specified parts of that evidence or categories thereof, circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts.

Amendment 52 #

Proposal for a directive
Article 5 – paragraph 3 – introductory part

3. Member States shall ensure that national courts limit disclosure of evidence to that which is proportionate and which relates to an action for damages in the Union. In determining whether any disclosure requested by a party is proportionate, national courts shall consider the public interests involved and the legitimate interests of all p~~arties and third~~rivate parties concerned. They shall, in particular, consider:

Amendment 53 #

Proposal for a directive
Article 5 – paragraph 3 – point a a (new)

(aa) the need to safeguard the effectiveness of the public enforcement of competition law, in particular with regard to risks that the disclosure of documents would pose to: (i) leniency programmes operated by competition authorities; (ii) settlement procedures operated by competition authorities; (iii) the internal decision-making procedures within a competition authority and within the European Competition Network;

Amendment 54 #

Proposal for a directive
Article 5 – paragraph 3 – point d a (new)

(da) the need to avoid any abuse of the rights relating to disclosure of evidence provided for in this Chapter, and of the evidence and information obtained thereunder.

Amendment 55 #

Proposal for a directive
Article 5 – paragraph 4

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 within the Union. The interest that undertakings have to avoid actions for damages following an infringement shall not constitute a commercial interest worthy of protection.

Amendment 56 #

Proposal for a directive
Article 5 – paragraph 5 a (new)

5a. Member States shall ensure that competition authorities are heard before a national court orders disclosure under this Article regarding information derived from the files of the competition authority, regardless of whether the information is in the possession of the competition authority or a third party.

Amendment 57 #

Proposal for a directive
Article 5 – paragraph 5 b (new)

5b. Member States shall ensure that interested parties in possession of a leniency statement or any other document containing self-incriminating evidence brought forward by an applicant for leniency are heard before a national court orders disclosure under this Article regarding information derived from the specified documents.

Amendment 58 #

Proposal for a directive
Article 5 – paragraph 6

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 national court.

Amendment 59 #

Proposal for a directive
Article 5 – paragraph 6 a (new)

6a. Member States shall ensure that a natural or legal person or an authority that is affected by a national court order under this Article has the possibility to take proceedings against the decision, including preliminary injunctions. Competition authorities should have the same right following a hearing as described in Article 5(5a).

Amendment 60 #

Proposal for a directive
Article 5 – paragraph 8

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.deleted

Amendment 61 #

Proposal for a directive
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 6 deleted

Amendment 62 #

Proposal for a directive
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 or a third party to disclose ~~any of the following categories of evidence:~~leniency corporate statements.

Amendment 63 #

Proposal for a directive
Article 6 – paragraph 1 – point a

~~(a) leniency corporate statements; an~~deleted

Amendment 64 #

Proposal for a directive
Article 6 – paragraph 1 – point a

(a) ~~leniency corporate statements~~all newly produced incriminating documents provided by a leniency applicant; and

Amendment 65 #

Proposal for a directive
Article 6 – paragraph 1 – point b

~~(b) settlement submissions.~~deleted

Amendment 66 #

Proposal for a directive
Article 7 – paragraph 1

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.deleted

Amendment 67 #

Proposal for a directive
Article 7 – paragraph 2

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.deleted

Amendment 68 #

Proposal for a directive
Article 7 – paragraph 3

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.

Amendment 69 #

Proposal for a directive
Article 8 – paragraph 1 – introductory part

1. Member States shall ensure that national courts ~~can~~effectively impose sanctions on parties, third parties and their legal representatives in the event of:

Amendment 70 #

Proposal for a directive
Article 8 – paragraph 1 – point b – point iii

(iii) the destroying party knew or could reasonably have inferred that the evidence was of relevance to pending or prospective actions for damages brought by it or against it;

Amendment 71 #

Proposal for a directive
Article 9 – paragraph 1

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, to the right to an effective remedy and a fair trial, and the right of defence, pursuant to Articles 47 and 48 of the Charter, and to the right to a fair hearing pursuant to Article 6 of the ECHR. Accordingly, decisions of national competition authorities and competition courts shall be binding provided that there were no manifest errors in the investigation and provided that the rights of the defence were complied with.

Amendment 72 #

Proposal for a directive
Article 10 – paragraph 2 – point ii

(ii) ~~the~~facts qualif~~ication of~~ying such behaviour as an infringement of Union or national competition law;

Amendment 73 #

Hans-Peter MARTIN

Proposal for a directive
Article 10 – paragraph 4

(4) Member States shall ensure that the limitation period for bringing an action for damages is at least five years, and for complex financial products at least ten years.

Amendment 74 #

Proposal for a directive
Article 10 – paragraph 4

4. Member States shall ensure that the limitation period for bringing an action for damages is at least ~~fiv~~three years.

Amendment 75 #

Proposal for a directive
Article 10 – paragraph 5

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~~two years after the infringement decision has become final or the proceedings are otherwise terminated.

Amendment 76 #

Proposal for a directive
Article 10 – paragraph 5

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~~six months after the day on which the infringement decision has become final or the proceedings are otherwise terminated.

Amendment 77 #

Proposal for a directive
Article 10 – paragraph 5 a (new)

5a. Notwithstanding paragraphs 1 to 5 of this Article, actions for damages shall be instituted within 10 years of the events that gave rise to them.

Amendment 78 #

Malcolm HARBOUR

Proposal for a directive
Article 12 – paragraph 1

1. Member States ~~shall ensure that~~may provide for implementing a system, based on judicial case law, where 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~~. T~~, in which case, the burden of proving that the overcharge was passed on shall rest with the defendant.

Amendment 79 #

Proposal for a directive
Article 12 – paragraph 1 a (new)

1a. Member States shall ensure that the national court has the power to estimate which share of that overcharge was passed on.

Amendment 80 #

Proposal for a directive
Article 12 – paragraph 2

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.deleted

Amendment 81 #

Proposal for a directive
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~~in order to prove existence of passing- on, t~~o him occurred where he h~~he indirect purchaser shall at least show~~n that~~ all of the following:

Amendment 82 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point b

~~(b) the infringement resulted in an overcharge for the direct purchaser of the defendant; an~~deleted

Amendment 83 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point c a (new)

(ca) he purchased those goods or services from the direct purchaser or from another indirect purchaser who is directly linked through the supply chain to the defendant; and

Amendment 84 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point c b (new)

(cb) he purchased those goods or services with an overcharge.

Amendment 85 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 2

Member States shall ensure that the court has the power to estimate which share of that overcharge was passed on. The courts should be assisted in this rather complex task by clear, simple, comprehensible, easily applicable and sufficiently updated guidance issued by the Commission.

Amendment 86 #

Proposal for a directive
Article 15 – paragraph 1 a (new)

1a. Article 12 and Article 13 shall not detain Member States from introducing rules which would preclude double payment of compensation for damages when compensation has already been paid either to the direct or indirect purchaser.

Amendment 87 #

Malcolm HARBOUR

Proposal for a directive
Article 16 – paragraph 1

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.deleted

Amendment 88 #

Proposal for a directive
Article 16 – paragraph 1

1. Member States shall ensure that, in the case of a ~~cartel~~hardcore by object infringement, it shall be presumed that the infringement caused harm. The infringing undertaking shall have the right to rebut this presumption.

Amendment 89 #

Proposal for a directive
Article 16 – paragraph 1

1. Member States shall ~~ensure that, in the case of a cartel infringement, it shall be presumed th~~provide that national courts be granted the power to establish the existence, and estimate the ~~infringement caused harm. The infringing undertaking shall have the right to rebut this presumption~~amount, of harm taking into account the presentation of evidence by the parties.

Amendment 90 #

Proposal for a directive
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 the court be granted the power to estimate the amount of harm.~~

Amendment 91 #

Proposal for a directive
Article 17 – paragraph 2 a (new)

2a. Member States shall ensure that competition authorities forming part of the network of public authorities applying the Union competition rules may suspend proceedings where the parties to those proceedings are involved in consensual dispute resolution proceedings concerning a claim for damages. The compensation paid or to be paid to victims pursuant to such proceedings shall be considered to be a mitigating factor when establishing the level of the fine.

Amendment 92 #

Proposal for a directive
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.~~

Amendment 93 #

Proposal for a directive
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 Report shall be accompanied by a coherent post-implementation assessment of the functioning of collective redress and collective ADR mechanisms within the competition sector, with particular evaluation of the essence of widening the application of such mechanisms in other sectors as well or establishing such a mechanism at EU level, to secure effective consumer protection and a balanced operation of the internal market.

source: PE-521.778

2013/11/08 ECON 164 amendments...

Amendment 100 #

Proposal for a directive
Article 2 – paragraph 1

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. from the infringing parties in either a direct or a follow-on private case.

Amendment 101 #

Proposal for a directive
Article 2 – paragraph 1

1. Anyone who has suffered harm caused by an infringement of Union or national competition law shall be able to claim and obtain full compensation for that harm.

Amendment 102 #

Proposal for a directive
Article 2 – paragraph 2

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~~for interest from the time the harm occurred until the compensation in respect of that harm has actually been ~~pai~~satisfied.

Amendment 103 #

Proposal for a directive
Article 2 – paragraph 2

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.

Amendment 104 #

Proposal for a directive
Article 2 – paragraph 2

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~~, according to the national law provisions regarding the payment of interest, payment of interest in respect of that harm ~~has actually been paid~~.

Amendment 105 #

Proposal for a directive
Article 2 – paragraph 2 a (new)

2a. Punitive damages, multiple damages or other types of damages and sanctions leading to overcompensation are excluded.

Amendment 106 #

Proposal for a directive
Article 2 – paragraph 3

3. Member States shall ensure that all injured parties can proficiently and cost effectively exercise their claims for damages. Member States shall introduce collective redress mechanisms based on defined common principles for the enforcement of Articles 101 and 102 of the Treaty as stipulated in the Commission Recommendation 2013/396/EU.

Amendment 107 #

Proposal for a directive
Article 2 – paragraph 3

3. Member States shall ensure that injured parties, directly or through their representatives can effectively exercise their claims for damages, promote injunctive measures and settle them through consensual dispute resolution.

Amendment 108 #

Arlene McCARTHY

Proposal for a directive
Article 2 – paragraph 3

3. Member States shall ensure that injured parties can effectively exercise their claims for damages and shall make collective redress procedures available for private damages claims.

Amendment 109 #

Proposal for a directive
Article 2 – paragraph 3 a (new)

3a. Member States shall introduce collective redress mechanisms based on defined common principles for the enforcement of Articles 101 and 102 of the Treaty as stipulated in the Commission Recommendation 2013/396/EU.

Amendment 110 #

Proposal for a directive
Article 2 – paragraph 3 a (new)

3a. The total level of fines and damages paid should not be affected by whether the competition authority action follows on from or precedes private action. Competition authorities shall link the total level of fines and damages paid in both of these instances, such as through the deferral of a proportion of the fine when a follow-on action is expected. However, this should neither result in lengthy uncertainty as regards settlement finality for companies, nor affect the right of individuals and undertakings to be compensated for damage suffered.

Amendment 111 #

Proposal for a directive
Article 4 – paragraph 1 – point 2 a (new)

2a. '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 112 #

Proposal for a directive
Article 4 – paragraph 1 – point 2 a (new)

Amendment 113 #

Proposal for a directive
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 provides for this possibilityby which a claim for damages is brought before a national court;

Amendment 114 #

Proposal for a directive
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 provides for this possibilityby which a claim for damages is brought before a national court;

Amendment 115 #

Jean-Paul GAUZÈS

Proposal for a directive
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 provides for this possibility;~~

Amendment 116 #

Proposal for a directive
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 covers actions by which someone act~~ing~~s on behalf of one or more injured parties bringsing a claim for damages before a national court~~, where national law provides for this possibility~~;

Amendment 117 #

Proposal for a directive
Article 4 – paragraph 1 – point 3 a (new)

3a. 'Mass harm situation' means a situation where two or more natural or legal persons claim to have suffered harm causing damages resulting from the same illegal competition activity of one or more natural or legal persons;

Amendment 118 #

Proposal for a directive
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 119 #

Proposal for a directive
Article 4 – paragraph 1 – point 3 b (new)

3b. 'Minor and diffused damages situation' means a mass harm situation where the number of natural or legal persons that have suffered damages directly or indirectly is very extended and the individual amount of the damage discourages a relevant part of injured parties to promote individual claims;

Amendment 120 #

Proposal for a directive
Article 4 – paragraph 1 – point 3 c (new)

3c. 'Cross border cases' means a mass harm situation case where the harmful event that caused damages resulting from the same illegal competition activity occurred in more than one Member State;

Amendment 121 #

Proposal for a directive
Article 4 – paragraph 1 – point 3 d (new)

3d. 'European minor and diffused damages situation' means a situation of cross border minor and diffused damages upon which the Commission is acting under Chapter III of the Regulation 1/2003 "

Amendment 122 #

Proposal for a directive
Article 4 – paragraph 1 – point 4 a (new)

4a. 'Group action' means a claim brought jointly by two or more injured parties or their representatives designed according the law in a mass harm situation;

Amendment 123 #

Proposal for a directive
Article 4 – paragraph 1 – point 5

5. ‘injured party’ means anyone who has ~~a claim for damages~~suffered harm as a result of anti- competitive behaviour;

Amendment 124 #

Proposal for a directive
Article 4 – paragraph 1 – point 9

9. ‘~~review~~competition 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;

Amendment 125 #

Proposal for a directive
Article 4 – paragraph 1 – point 11

11. ‘final’ infringement decision means an infringement decision of a competition authority or ~~review~~competition court that can no longer be reviewed;

Amendment 126 #

Proposal for a directive
Article 4 – paragraph 1 – point 12

12. ‘cartel’ means ~~an agreement and/~~two or more horizontal competitors co~~ncerted practice between two o~~-ordinating their behaviour within a market to earn rents above those possible under mnoremal competit~~ors aimed at~~ion, or co- ordinating their ~~competitive behaviour on the market and/or influencing the relevant parameters of competition~~behaviour within a market to exclude undertakings operating under normal market conditions from gaining market share, through practices such as, inter alia, the fixing or coordination of purchase or selling prices or other trading conditions, abusive licensing practices, 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;

Amendment 127 #

Proposal for a directive
Article 4 – paragraph 1 – point 13

13. ‘'leniency programme’' means a programme concerning the application of Article 101 of the Treaty or the corresponding provision under national law 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;

Amendment 128 #

Proposal for a directive
Article 4 – paragraph 1 – point 14

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’);deleted

Amendment 129 #

Proposal for a directive
Article 4 – paragraph 1 – point 14

14. ‘'leniency corporate statement’' means an oral or, written or any other 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’');

Amendment 130 #

Proposal for a directive
Article 4 – paragraph 1 – point 14

Amendment 131 #

Proposal for a directive
Article 4 – paragraph 1 – point 14

14. ‘leniency corporate statement’ means an oral or written presentation voluntarily provided by, or on behalf of, an ~~undertaking~~applicant to a competition authority, describing the ~~undertaking~~applicant'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’);

Amendment 132 #

Proposal for a directive
Article 4 – paragraph 1 – point 15

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;deleted

Amendment 133 #

Proposal for a directive
Article 4 – paragraph 1 – point 16

16. ‘overcharge’ means ~~any positive difference between the price actually paid and~~when a higher price has been paid due to competition law infringement, calculated by subtracting the price that would have prevailed in the absence of an infringement of competition law from the actual price paid;

Amendment 134 #

Proposal for a directive
Article 4 – paragraph 1 – point 17

17. ‘'consensual settlement’' means an agreement whereby damages are ~~pai~~compensated following a consensual dispute resolution.

Amendment 135 #

Proposal for a directive
Article 4 a (new)

Article 4 a Safeguards 1. Member States shall ensure that the unsuccessful party in an action for damages shall reimburse the reasonable legal costs, which arose for the winning party ('loser pays principle'). 2. Member States shall ensure that the lawyers' remuneration in an action for damages does not create any incentive to litigation that is unnecessary from the point of view of the interest of any of the parties. In particular, contingency fees, conditional fees and any other fees calculated on the basis of the amount of the settlement reached or damages awarded to the claimant, or the payment of which depends on the outcome of the case shall not be allowed.

Amendment 136 #

Proposal for a directive
Article 4 a (new)

Article 4 a Chapter Ib - Cross Border Cases

Amendment 137 #

Proposal for a directive
Article 4 b (new)

Article 4 b Single Forum Member States shall ensure that, where disputes concern natural or legal persons from several Member States in cross border cases, a single forum is not prevented by national rules on admissibility or standing of the foreign claimants or representatives originating from other national legal system.

Amendment 138 #

Proposal for a directive
Article 4 c (new)

Article 4 c Recognition of national representatives 1. Member States shall ensure that in cross border cases any representative designated in advance according the law from other Member State to have standing to bring representative actions shall be permitted to seize the court in the Member State having jurisdiction to consider the mass harm situation.

Amendment 139 #

Proposal for a directive
Article 4 d (new)

Article 4 d Chapter Ic - Group Actions

Amendment 140 #

Proposal for a directive
Article 4 e (new)

Article 4 e Group Actions 1. Member States shall ensure that a representative designed according to the law may claim compensation on behalf of two or more injured parties. 2. Member States shall allow at least Group Actions brought forward in the name and on behalf of natural or legal persons who claim to be exposed to the risk of suffering harm or to have been harmed whereas those persons are not parties to the proceedings by: a) A representative designed by a collective of injured parties formed on the basis of the opt in principle; b) A public authority entitled to claim on behalf the injured parties in cases of minor and diffused damages. 3. Member States may also allow representative entities to bring group actions where the following requirements are met: a) the entity has a non-profit making character b) there is a direct relationship between the main objectives of the entity and the rights granted under Union law that are claimed to have been violated in respect of which the action is brought; and c) the entity has a sufficient capacity in terms of financial resources, human resources, and legal expertise, to represent multiple claimants acting in their best interest. 4. Member States shall ensure that national courts rule on group actions only after that a competition authority has found a violation of Union law. This does not prevent the possibility of injunctive actions or the consensual settlement of disagreements by the group representatives. 5. Member States must ensure that any claimant is free to leave the claimant party at any time before the final judgment is given or the case is otherwise, validly settled, subject to the same conditions that apply to withdrawal in individual actions, without be deprived of the possibility to pursue its claims in another form, it this does not undermine sound administration of justice. 6. Natural or legal persons claiming to have been harmed in the same mass harms situation shall be able to join the claimant party at any time before the judgment is given or the case is otherwise validly settled, if this does not undermine the sound administration of justice. 7. The compensation awarded to natural or legal persons harmed in a mass harm situation, shall not exceed the compensation that would have been awarded, if the claim had been pursued by means of individual actions. In particular, punitive damages or any other formula, leading to overcompensation in favour of the claimant party of the damage suffered, shall be prohibited. 8. Member States shall ensure that the lawyers' remuneration and the method by which it is calculated do not create any incentive to litigation that is unnecessary from the point of view of the interest of any of the parties. Member States shall, in principle, not permit contingency fees which risk creating such an incentive. Where Member States exceptionally allow for contingency fees, they shall provide for appropriate national regulation of those fees in collective redress cases taking into account in particular the right to full compensation of the members of the claimant party. 9. Member States shall establish a national registry of group actions. The national registry shall be available free of charge to any interested person through electronic means and otherwise. Websites publishing the registries shall provide access to comprehensive and objective information on the available methods of obtaining compensation, including out of court methods. The European Commission shall assist the Member States in their endeavour to ensure coherence of the information gathered in the registries and their interoperability.

Amendment 141 #

Proposal for a directive
Article 4 f (new)

Article 4 f Public Representative Actions Member States shall ensure that at least one public authority is entitled to bring forward a group action behalf of natural or legal persons who claim to be exposed to the risk of suffering harm or to have been harmed in a minor and diffused damages situation.

Amendment 142 #

Proposal for a directive
Article 4 g (new)

Article 4 g European Public Representative Action The Commission, at its own initiative or at the request of the Council, the European Parliament, the European Competition Network or the Member States affected, may command an European public representative, that may be designated on ad hoc basis, to bring in close cooperation with the concerned national authorities a group action before a single forum in cases of cross border mass harm and, particularly, of European minor and diffused damages situations. This should be without prejudice to and independently from its role in the public enforcement of Competition policy.

Amendment 143 #

Proposal for a directive
Article 5 – paragraph 1 – subparagraph 1

Member States shall ensure that, where a claimant has presented a reason~~ably~~ed justification containing 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 144 #

Proposal for a directive
Article 5 – paragraph 2 – point a

(a) ~~show~~provided a reasoned justification that evidence in the control of the other party or a third party is relevant in terms of substantiating his claim or defence; and

Amendment 145 #

Proposal for a directive
Article 5 – paragraph 2 – point b

(b) specified in the reasoned justification 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.

Amendment 146 #

Proposal for a directive
Article 5 – paragraph 3

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.deleted

Amendment 147 #

Proposal for a directive
Article 5 – paragraph 3 – point c

(c) whether the evidence to be disclosed contains confidential information, especially concerning any third parties, and the arrangements for protecting such confidential information; ~~and~~

Amendment 148 #

Proposal for a directive
Article 5 – paragraph 3 – point d

(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.; and

Amendment 149 #

Proposal for a directive
Article 5 – paragraph 3 – point d a (new)

(da) the existence of any leniency corporate statements.

Amendment 150 #

Proposal for a directive
Article 5 – paragraph 4

Amendment 151 #

Proposal for a directive
Article 5 – paragraph 4

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.

Amendment 152 #

Proposal for a directive
Article 5 – paragraph 5

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. However, where a claimant has presented reasonably available facts and evidence sufficient to support plausibly that he, or those he represents, has suffered harm caused by the defendant's infringement of competition rules and that documents containing self-incriminating evidence are indispensable to supporting their claim and contains evidence that cannot be otherwise provided, national courts may order the defendant or a third party to disclose evidence. Member states shall ensure that national courts are also able to order the claimant or a third party to disclose evidence on request of the defendant. This provision shall be without prejudice to the rights and obligations of national courts under Council Regulation (EC)1206/2001.

Amendment 153 #

Proposal for a directive
Article 5 – paragraph 5

5. Member States shall ~~take the necessary measures to~~ give full effect to professional legal privileges under national and European law and other rights not to be compelled to disclose evidence.

Amendment 154 #

Proposal for a directive
Article 5 – paragraph 5

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.

Amendment 155 #

Proposal for a directive
Article 5 – paragraph 6

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, except in cases of justified urgency 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.

Amendment 156 #

Arlene McCARTHY

Proposal for a directive
Article 5 – paragraph 7 a (new)

7a. Member States shall ensure that for the purposes of facilitating amicable negotiations, potential claimants are able to obtain evidence regarding quantum of loss from the competition authority and the defendant without any obligation to undertake judicial action.

Amendment 157 #

Proposal for a directive
Article 6 – paragraph 1

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.deleted

Amendment 158 #

Proposal for a directive
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 or a third party to disclose any of the following categories of evidence:~~ , in principle, order a party or a third party to disclose leniency statements or any other document disclosed for the purposes of participating in a leniency programme or in a settlement procedure by the applicant for leniency and submitted to a competition authority or drawn up by the competition authority during its proceedings. However, where a claimant has presented reasonably available facts and evidence sufficient to support plausibly that he, or those he represents, has suffered harm caused by the defendant's infringement of the competition rules and that the leniency statement or any other document disclosed for the purposes of participating in a leniency programme or in a settlement procedure by the applicant for leniency and submitted to a competition authority or drawn up by the competition authority during its proceedings is indispensable to supporting their claim and contains evidence that cannot be otherwise provided, national courts may order the defendant or a third party to disclose evidence, regardless of whether or not that evidence is also included in the file of the competition authority, subject to the conditions set out in this Chapter. Member States shall ensure that national 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.

Amendment 159 #

Proposal for a directive
Article 6 – paragraph 1 – introductory part

1. Member States shall ensure that, for the purpose of actions for damages, national courts cannot ats a~~ny time~~ general requirement order a party or a third party to disclose ~~any of the following categories of evidence:~~leniency corporate statements.

Amendment 160 #

Proposal for a directive
Article 6 – paragraph 1 – point a

~~(a) leniency corporate statements; an~~deleted

Amendment 161 #

Proposal for a directive
Article 6 – paragraph 1 – point a

(a) ~~leniency corporate statements~~all newly produced incriminating documents provided by a leniency applicant; and

Amendment 162 #

Proposal for a directive
Article 6 – paragraph 1 – point a

(a) leniency corporate statements; (without the annexes) of the first leniency applicant; and

Amendment 163 #

Arlene McCARTHY

Proposal for a directive
Article 6 – paragraph 1 – point a

(a) leniency corporate statements (not including the annexes) of the first leniency applicant ; and

Amendment 164 #

Proposal for a directive
Article 6 – paragraph 1 – point a

(a) ~~leniency corporate stateme~~statements from leniency applicants; and

Amendment 165 #

Proposal for a directive
Article 6 – paragraph 1 – point b

~~(b) settlement submissions.~~deleted

Amendment 166 #

Proposal for a directive
Article 6 – paragraph 1 – point b a (new)

(ba) However, where a claimant has presented reasonably available facts and evidence showing plausibly that certain data or information pertaining to any document of such categories which cannot be otherwise provided is indispensable for determining the damage and supporting its claim, national courts, where the pretension of the claimant is well founded prima facie, shall be able to: (a) access and analyse such document; (b) hear the interested parties in the possession of it; and (c) order the limited disclosure of the relevant data or parts of the document concerned which are strictly needed to provide the claimant with the level of information required for that purpose under appropriate conditions which protect the public interest and confidential information.

Amendment 167 #

Proposal for a directive
Article 6 – paragraph 2 – introductory part

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:

Amendment 168 #

Krišjānis KARIŅŠ

Proposal for a directive
Article 6 – paragraph 2 – point b

~~(b) information that was drawn up by a competition authority in the course of its proceedings.~~deleted

Amendment 169 #

Proposal for a directive
Article 6 – paragraph 2 – point b

(b) information that was drawn up by a competition authority in the course of its proceedings and was included in the file of a competition authority.

Amendment 170 #

Proposal for a directive
Article 6 – paragraph 2 – point b a (new)

(ba) settlement submissions and withdrawn offers.

Amendment 171 #

Proposal for a directive
Article 6 – paragraph 3

3. Disclosure of evidence in the file of a competition authority that ~~doe~~is not ~~fall into any of the categories listed in~~covered under paragraphs 1 orand 2 of this Article may be ordered in actions for damages at any time, including evidence that exists irrespective of the proceedings of a competition authority.

Amendment 172 #

Proposal for a directive
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 paragraph~~s 1 or~~ 2 of this Article may be ordered in actions for damages at any time.

Amendment 173 #

Proposal for a directive
Article 6 – paragraph 3 a (new)

(3a) Member States shall ensure that interested parties in possession of a leniency statement or any other document disclosed for the purposes of participating in a leniency programme or in a settlement procedure by the applicant for leniency and submitted to a competition authority or drawn up by the competition authority during its proceedings are heard before a national court orders disclosure under this Article regarding information derived from the specified documents.

Amendment 174 #

Proposal for a directive
Article 7 – paragraph 1

Amendment 175 #

Proposal for a directive
Article 7 – paragraph 1

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.

Amendment 176 #

Proposal for a directive
Article 7 – paragraph 1

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.

Amendment 177 #

Proposal for a directive
Article 7 – paragraph 2

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.

Amendment 178 #

Proposal for a directive
Article 7 – paragraph 2

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.

Amendment 179 #

Proposal for a directive
Article 7 – paragraph 3

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 paragraph~~s 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.

Amendment 180 #

Proposal for a directive
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 181 #

Proposal for a directive
Article 7 a (new)

Article 7 a Member States shall ensure that for the purposes of facilitating amicable negotiations, potential claimants can obtain the evidence regarding quantum of loss from the competition authority or the defendant without the need of starting a judicial action in court.

Amendment 182 #

Proposal for a directive
Article 8 – paragraph 1 – point b – introductory part

(b) the destruction of relevant evidence~~, provided that, at the time of destruction:~~;

Amendment 183 #

Proposal for a directive
Article 8 – paragraph 1 – point b

(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;deleted

Amendment 184 #

Jean-Paul GAUZÈS

Proposal for a directive
Article 9

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~~In the case of final infringement decision by a national competition authority, it shall be presumed that the finding of an infringement is true. This obligation is without prejudice to the rights and obligations under Article 267 of the Treaty, to the right to an effective remedy and a fair trial, and the right of defence, pursuant to Articles 47 and 48 of the Charter, and to the right to a fair hearing pursuant to Article 6 of the ECHR. Accordingly, decisions of national competition authorities and competition courts shall be binding provided that there were no manifest errors in the investigation and provided that the rights of the defence were complied with.

Amendment 185 #

Proposal for a directive
Article 9

Amendment 186 #

Proposal for a directive
Article 10 – paragraph 2

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.deleted

Amendment 187 #

Proposal for a directive
Article 10 – paragraph 2 – introductory part

2. Member States shall ensure that the limitation period shall ~~not~~ begin ~~to run before~~on the latest date after an injured party knows, or can reasonably be expected to have knowledge of:

Amendment 188 #

Proposal for a directive
Article 10 – paragraph 2 – point ii

(ii) the qualification of such behaviour as an infringement of Union or national competition law, such as the result of a public action;

Amendment 189 #

Jean-Pierre AUDY

Proposal for a directive
Article 10 – paragraph 4

4. Member States shall ensure that ~~the~~a harmonised limitation period of five years for bringing an action for damages is ~~at least five years~~introduced throughout the Union.

Amendment 190 #

Proposal for a directive
Article 10 – paragraph 4

4. Member States shall ensure that the limitation period for bringing an action for damages is at least ~~five~~six years.

Amendment 191 #

Proposal for a directive
Article 10 – paragraph 4

4. Member States shall ensure that the limitation period for bringing an action for damages is at least ~~five~~ten years.

Amendment 192 #

Proposal for a directive
Article 10 – paragraph 4 a (new)

4a. Notwithstanding paragraphs 1 to 4 of this Article, actions for damages shall be instituted within 10 years from the date on which the cause of action accrued.

Amendment 193 #

Proposal for a directive
Article 10 – paragraph 5

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, when a case can no longer be appealed or reviewed, or the proceedings are otherwise terminated.

Amendment 194 #

Proposal for a directive
Article 10 – paragraph 5

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 ~~earlie~~last one year after the infringement decision has become final or the proceedings are otherwise terminated.

Amendment 195 #

Proposal for a directive
Article 11 – paragraph 1

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. Where the undertaking is a SME and has not led or induced the infringement by other undertaking of the competition law and has shown that its participation in the total damage caused is inferior to the 5%, it shall only be liable to its injured parties.

Amendment 196 #

Jean-Paul GAUZÈS

Proposal for a directive
Article 11 – paragraph 1

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 fully compensate for the harm ~~in full, and the injured party may require full compensation from any of them until he has been fully compensated~~caused to its direct and indirect customers.

Amendment 197 #

Proposal for a directive
Article 11 – paragraph 2

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.deleted

Amendment 198 #

Proposal for a directive
Article 11 – paragraph 2

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 una~~it is not reasonably possible to obtain ~~full~~appropriate compensation from the other undertakings that were involved in the same infringement of competition law.

Amendment 199 #

Proposal for a directive
Article 11 – paragraph 2

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.

Amendment 200 #

Proposal for a directive
Article 11 – paragraph 3

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.

Amendment 201 #

Proposal for a directive
Article 11 – paragraph 4

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.deleted

Amendment 202 #

Proposal for a directive
Article 12 – paragraph 1

Amendment 203 #

Proposal for a directive
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. TWithout prejudice to the commercial presumption that price increases are passed on down the supply chain, the burden of proving that the overcharge was passed on shall rest with the defendant who may reasonably require disclosures from the claimant.

Amendment 204 #

Proposal for a directive
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 rest with the defendant which shall not be required to pay twice for the same harm.

Amendment 205 #

Proposal for a directive
Article 13 – paragraph 1

1. Member States shall ensure that, ~~where in an action for damages the existence of a claim for damages~~parties which have suffered damage caused by an infringement orf the ~~amount of compensation to be awarded depend~~competition rules are entitled to compensation, regardless onf 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~~they are direct or indirect purchasers.

Amendment 206 #

Proposal for a directive
Article 13 – paragraph 1

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, without prejudice to the commercial presumption that price increases are passed on down the supply chain, the burden of proving the existence and scope of such pass-on shall rest with the claimant who may reasonably require disclosures from the defendant.

Amendment 207 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1

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.deleted

Amendment 208 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point a

(a) the defendant has inflicted, planned or committed an infringement of competition law;

Amendment 209 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point b

(b) the infringement resulted in an overcharge for ~~the direct purchase~~distortion in the market as so for the purchaser or competitor of the defendant; and

Amendment 210 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point b

(b) the infringement resulted in an overcharge for ~~the direct purchase~~any purchaser or distortion to any competitor of the defendant; and

Amendment 211 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point c

(c) he purchased the goods or services from a direct purchaser 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.

Amendment 212 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point c a (new)

(ca) the whole or part of the overcharge was passed on to him.

Amendment 213 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 2

Member States shall ensure that the court has the power to estimate which share of thate overcharge was passed on to the indirect purchaser.

Amendment 214 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 3

This par~~agraph~~ticle 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.

Amendment 215 #

Proposal for a directive
Article 14 – paragraph 1

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, actual loss, and interest from the time the harm occurred until the compensation in respect of that harm has been paid.

Amendment 216 #

Proposal for a directive
Article 14 – paragraph 1

1. The rules laid down in this Chapter shall be without prejudice to the right of any injured party that are likely to have suffered harm to claim compensation for loss of profits.

Amendment 217 #

Krišjānis KARIŅŠ

Proposal for a directive
Article 15 – paragraph 1 – introductory part

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 may take ~~due~~into account of

Amendment 218 #

Proposal for a directive
Article 15 – paragraph 1 – point b a (new)

(ba) any relevant results from public competition cases which help to fulfil the criteria in paragraph 2 of Article 13.

Amendment 219 #

Proposal for a directive
Article 16 – paragraph 1

Amendment 220 #

Proposal for a directive
Article 16 – paragraph 1

1. Member States shall ensure that, in the case of a cartel infringement, it shall be presumed that the infringement caused harm within the market. The infringing undertaking shall have the right to rebut this presumption.

Amendment 221 #

Proposal for a directive
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 222 #

Proposal for a directive
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 the court be granted the power to estimate the amount of harm if the claimant is unable to directly prove the amount of harm suffered.

Amendment 223 #

Proposal for a directive
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 the court be granted the power to estimate the amount of harm. Where requested, NCAs shall provide guidance on quantifying the harm.

Amendment 224 #

Proposal for a directive
Article 17 – paragraph 2 a (new)

2a. Member States shall ensure when competition authorities approve the settlement for compensation or take the results of consensual dispute resolution into account, the quantification of damage and the identification of victims are included into their investigation.

Amendment 225 #

Proposal for a directive
Article 17 a (new)

Article 17 a Consensual dispute resolution Member States shall ensure that attempts are made to facilitate the parties reaching a fair and early settlement through consensual dispute resolution, with such an attempt being mandatory in the case of follow-on actions. Any such obligation, however, should not entail an undue prolongation of proceedings, nor promote the unfair settlement of claims.

Amendment 226 #

Proposal for a directive
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 52 years after the date set as the deadline for transposition of this Directive.] Where appropriate the review shall be accompanied by a legislative proposal which might inter alia consider that early voluntary compensations and agreements to compensate damages caused to injuries parties before a decision on the existence of an infringement is adopted and timely communicated to the competition authority that follows a procedure according the Regulation (CE) 1/200 may constitute a mitigating circumstance in the imposition of public sanctions under competition law.

Amendment 227 #

Proposal for a directive
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.

Amendment 228 #

Proposal for a directive
Article 21 – title

Entry into force and Transition Rule for pending cases

Amendment 229 #

Proposal for a directive
Article 21 – paragraph 1 a (new)

The provisions adopted by the Member States for the implementation of the Directive shall not apply to claims for damages that are the object of litigation matters pending before the national court of a Member State prior to the entry into force of the Directive.

Amendment 66 #

Proposal for a directive
Recital 3

(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 in either a direct or a follow-on case. 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.

Amendment 67 #

Proposal for a directive
Recital 4 a (new)

(4a) Actions for damages are only one element of an effective system of private enforcement of breaches of competition law and are accompanied by non-court based avenues of redress, such as consensual dispute resolution or public enforcement decisions that incentivise parties to provide compensation.

Amendment 68 #

Proposal for a directive
Recital 4 a (new)

Amendment 69 #

Elena BĂSESCU

Proposal for a directive
Recital 5

(5) To ensure effective public and private enforcement of the competition rules, it is necessary to regulate in a coherent manner, 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.

Amendment 70 #

Proposal for a directive
Recital 5

(5) To ensure effective p~~ublic and p~~rivate enforcement actions under civil law and effective public enforcement by competition authorities, both tools are required to interact to ensure maximum effectiveness of the competition rules~~, i~~. 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.

Amendment 71 #

Proposal for a directive
Recital 5 a (new)

(5a) Effective means for consumers and undertakings to obtain damages will ensure greater compliance with the Union competition rules. Accordingly, in the interests of enhancing public enforcement of competition rules in the Union, cost- effective, timely and efficient compensation of victims of breaches of those rules should be encouraged. To that end, compensation of victims following a consensual dispute resolution process should be considered to be a mitigating factor by the competition authorities in the setting of fines. Encouraging consensual compensation of victims should be without prejudice to the need for harmonisation of the rules in the Members States governing actions for damages for infringements of national or Union competition law.

Amendment 72 #

Proposal for a directive
Recital 5 a (new)

(5a) Mass and dispersed damages, information asymmetries and other problems encountered in prosecuting damages claims occur in EC competition law. To mitigate these, competition torts should be treated consistently with other torts insofar as possible, paying regard to particular complexities and difficulties associated with competition law enforcement, especially as regards stand- alone damages actions. Furthermore, the disclosure provisions of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights and the Second Venice Resolution of European Patent Judges adopted on 4 November 2006 fit well with the requirements of competition actions. In the interests of individuals and SMEs, procedural complexity should be avoided.

Amendment 73 #

Elena BĂSESCU

Proposal for a directive
Recital 6

Amendment 74 #

Proposal for a directive
Recital 6

(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 actual effect of competition infringements on the business sector inflicted and the conditions under which injured parties can exercise the right to compensation they derive from the Treaty, and affect the substantive effectiveness of such rights. AsThe additional information asymmetry and the difficulties associated with quantifying antitrust harm 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, distort competition and reducing consumer confident as regards actions for damages and may affect competition on the markets on which these injured parties, as well as the infringing undertakings, operate. The lack of common unified and horizontal legal principles on redress to assure that the companies whom breaches the competition law and hold a profit on such activities at the cost of law abiding businesses, are not the ones to continue to benefit from the lack of legal consistency within the Union.

Amendment 75 #

Proposal for a directive
Recital 8

(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 to prevent a further lack of consumer confidence due to the current difficulties in obtaining compensation for the harm they have suffered.

Amendment 76 #

Proposal for a directive
Recital 8

(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 and an obligation for the Member States to introduce collective redress mechanisms based on defined common principles will also help to prevent the emergence of wider differences between the Member States' rules governing actions for damages in competition cases.

Amendment 77 #

Proposal for a directive
Recital 10

(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, precious 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.

Amendment 78 #

Proposal for a directive
Recital 11

Amendment 79 #

Proposal for a directive
Recital 11

Amendment 80 #

Proposal for a directive
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~~ requires Member States to introduce collective redress mechanisms for the enforcement of Articles 101 and 102 of the Treaty based on defined common principles as stipulated in the Commission Recommendation 2013/396/EU.

Amendment 81 #

Proposal for a directive
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. Punitive damages or other types of damages and sanctions leading to overcompensation are excluded. Compensation for a loss of a chance shall not be considered as such damages leading to overcompensation. 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
Recital 11 a (new)

(11a) Achieving a 'once-and-for-all' settlement for defendants is desirable with a view to reducing uncertainty and an exaggerated economic effect that might impact on employees, suppliers, subcontractors and other innocent parties.

Amendment 83 #

Proposal for a directive
Recital 11 a (new)

(11a) SMEs and consumers suffer damage because of legal ineffectiveness due to lack of cost effective enforcement of Article 101 and 102 of the Treaty. This imbalance gives opportunity for large companies to exploit their size and financial positions in the internal market towards SMEs. The collective redress procedures for access to justice, especially for SMEs and consumers, are a vital factor to enforce legal rights. The aims of the proposed directive may not be fully reached if collective redress is not available to SMEs and consumers to initiate legal procedures for damages for competition law infringements; the Commission shall launch a study assessing how Member States apply collective redress procedures to private damage claims for the enforcement of infringements to Articles 101 and 102 of the Treaty.

Amendment 84 #

Proposal for a directive
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 85 #

Proposal for a directive
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~~provided a reasoned justification, 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~~is defined as precisely and narrowly as possible on the basis of reasonably available facts.

Amendment 86 #

Proposal for a directive
Recital 17

(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, redacting that confidential information, 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.

Amendment 87 #

Proposal for a directive
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, such statements should be excepted from disclosure of evidence.deleted

Amendment 88 #

Proposal for a directive
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, such statements should be excepted from disclosure of evidence.deleted

Amendment 89 #

Proposal for a directive
Recital 20

(20) ~~In addition,~~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 cooperate with a competition authority under a leniency programme or a settlement procedure 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.

Amendment 90 #

Proposal for a directive
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 91 #

Proposal for a directive
Recital 21 a (new)

(21a) Where a claimant has presented reasonably available facts and evidence sufficient to support plausibly that he has suffered harm caused by the defendant's infringement of the competition rules and that the leniency statement or any other document disclosed for the purposes of participating in a leniency programme or in a settlement procedure by the applicant for leniency and submitted to a competition authority or drawn up by the competition authority during its proceedings is indispensable to supporting their claim and contains evidence that cannot be otherwise provided, national courts may order the defendant or a third party to disclose evidence, regardless of whether or not that evidence is also included in the file of the competition authority, subject to a set of conditions.

Amendment 92 #

Proposal for a directive
Recital 25

(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. To this regard, the European Commission should ensure a consistent application of EU competition law by providing in a transparent manner within the framework of the European Competition Network ('ECN') strong guidance to the national competition authorities as regards their decisions. This is without prejudice to the rights and obligations of national courts under Article 267 of the Treaty.

Amendment 93 #

Proposal for a directive
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, while also respecting that it is normal business practice to pass on overcharges down the supply chain. 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 94 #

Proposal for a directive
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 95 #

Proposal for a directive
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. Member States shall ensure that where requested, NCAs will provide guidance on quantifying the harm.

Amendment 96 #

Elena BĂSESCU

Proposal for a directive
Recital 37

(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, and shall not discourage in any way, the parties from reaching settlements.

Amendment 97 #

Proposal for a directive
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 98 #

Proposal for a directive
Recital 44 a (new)

(44a) Considering that the Directive will substantially change the laws of many Member States on civil litigation, in particular as regards the disclosure of evidence, an appropriate transitional regime should be established in order to deal with litigation matters already pending prior to the entry into force of the Directive. The laws of the Member States adopted to implement the Directive should therefore only apply to matters brought before a national court after the date of the entry into force of this Directive.

Amendment 99 #

Proposal for a directive
Article 1 – paragraph 1

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 by an undertaking or group of undertakings, can effectively exercise the right to claim full compensation for that harm from those infringing parties. 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.

source: PE-521.623

2013/12/20 JURI 119 amendments...

Amendment 100 #

Proposal for a directive
Article 8 – paragraph 1

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.deleted

Amendment 101 #

Proposal for a directive
Article 8 – paragraph 1 – point b – introductory part

(b) the destruction of relevant evidence~~, provided that, at the time of destruction:~~;

Amendment 102 #

Proposal for a directive
Article 8 – paragraph 1 – point b – point i

~~(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~~deleted

Amendment 103 #

Proposal for a directive
Article 8 – paragraph 1 – point b – point ii

(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; ordeleted

Amendment 104 #

Proposal for a directive
Article 8 – paragraph 1 – point b – point iii

~~(iii) the destroying party knew that the evidence was of relevance to pending or prospective actions for damages brought by it or against it;~~deleted

Amendment 105 #

Proposal for a directive
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 106 #

Proposal for a directive
Article 10 – paragraph 2 – introductory part

2. Member States shall ensure that the limitation period shall ~~not~~ begin ~~to run before~~on the latest date after an injured party knows, or can reasonably be expected to have knowledge of:

Amendment 107 #

Proposal for a directive
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

~~(ii) the qualification of such behaviour as an infringement of Union or national competition law;~~deleted

Amendment 109 #

Proposal for a directive
Article 10 – paragraph 2 – point ii

(ii) the qualification of such behaviour as an infringement of Union or national competition law, such as the result of a public action;

Amendment 110 #

Proposal for a directive
Article 10 – paragraph 3

~~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.~~deleted

Amendment 111 #

Proposal for a directive
Article 10 – paragraph 4

4. Member States shall ensure that the limitation period for bringing an action for damages is at least ~~five~~ten years.

Amendment 112 #

Proposal for a directive
Article 10 – paragraph 4

4. Member States shall ensure that the limitation period for bringing an action for damages is at least ~~five~~six years.

Amendment 113 #

Proposal for a directive
Article 10 – paragraph 4

4. Member States shall ensure that the limitation period for bringing an action for damages is at least ~~five~~three years but not longer than 10 years.

Amendment 114 #

Proposal for a directive
Article 10 – paragraph 5

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, when a case can no longer be appealed or reviewed, or the proceedings are otherwise terminated.

Amendment 115 #

Proposal for a directive
Article 11 – paragraph 2

Amendment 116 #

Proposal for a directive
Article 11 – paragraph 2

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 otwher ~~than its direct or indirect purchasers or providers only when~~e 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.

Amendment 117 #

Proposal for a directive
Article 11 – paragraph 2

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.

Amendment 118 #

Proposal for a directive
Article 11 – paragraph 2

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 una~~it is not reasonably possible to obtain ~~full~~appropriate compensation from the other undertakings that were involved in the same infringement of competition law.

Amendment 119 #

Proposal for a directive
Article 12 – paragraph 1

Amendment 120 #

Rebecca TAYLOR, Sharon BOWLES

Proposal for a directive
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 121 #

Proposal for a directive
Article 13 – paragraph 1

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 claimin line with the commercial presumption that price increases are passed on down the supply chain, the claimant can benefit from a legal presumption of pass-on under the conditions of paragraph 2. In order to prove these the claimant may reasonably require disclosures from the defendant.

Amendment 122 #

Rebecca TAYLOR, Sharon BOWLES

Proposal for a directive
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 123 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – introductory part

~~In the situation referred to in paragraph 1 of this Article, t~~The indirect purchaser shall be deemed to have proven that a passing- on to him occurred where he has shown that:

Amendment 124 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point a

(a) the defendant has inflicted, planned or committed an infringement of competition law;

Amendment 125 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point a

(a) the defendant has inflicted or committed an infringement of competition law;

Amendment 126 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point b

(b) the infringement resulted in an overcharge for ~~the direct~~any purchaser of the defendant or in a distortion to any competitor; and

Amendment 127 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point b

(b) the infringement resulted in an overcharge for the direct purchaser or in a distortion to any competitor of the defendant; and

Amendment 128 #

Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point b

(b) the infringement resulted in an ~~overcharge~~distortion in the market that resulted in an overcharge or a loss as so for the ~~direct~~ purchaser or competitor of the defendant; and

Amendment 129 #

Proposal for a directive
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 130 #

Proposal for a directive
Article 14 – paragraph 1

1. The rules laid down in this Chapter shall be without prejudice to the right of any injured party that have suffered harm to claim compensation for loss of profits.

Amendment 131 #

Proposal for a directive
Article 14 – paragraph 1

Amendment 132 #

Proposal for a directive
Article 15 – paragraph 1 – point b a (new)

(ba) any relevant results from public competition cases which help to fulfil the criteria in paragraph 2 of Article 13.

Amendment 133 #

Proposal for a directive
Article 16 – paragraph 1

Amendment 134 #

Proposal for a directive
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 the court be granted the power to estimate the amount of harm if the claimant is unable to directly prove the amount of harm suffered.

Amendment 135 #

Proposal for a directive
Article 17 – paragraph 2 – point 1 (new)

(1) The suspension referred to in paragraph 2 of this Article may not, in any case, have a duration exceeding one year.

Amendment 136 #

Proposal for a directive
Article 17 – paragraph 2 a (new)

2a. Member States shall ensure that when competition authorities approve the settlement for compensation or take the results of consensual dispute resolution into account, the quantification of damage and the identification of victims are included into their investigation.

Amendment 137 #

Proposal for a directive
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 138 #

Proposal for a directive
Article 17 a (new)

Article 17a Consensual dispute resolution Member States shall ensure that attempts are made to facilitate the parties reaching a fair and early settlement through consensual dispute resolution, with such an attempt being mandatory in the case of follow-on actions. Any such obligation, however, should not entail an undue prolongation of proceedings, nor promote the unfair settlement of claims.

Amendment 139 #

Proposal for a directive
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.~~

Amendment 140 #

Proposal for a directive
Article 19 – paragraph 1

Amendment 141 #

Proposal for a directive
Article 20 – paragraph 1 – subparagraph 1

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [to be calculated as 2one years after the date of adoption of this Directive] at the latest. They shall forthwith communicate to the Commission the text of those provisions.

Amendment 23 #

Proposal for a directive
Recital 3

Amendment 24 #

Proposal for a directive
Recital 4

(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 Union53 and in Article 19(1), second subparagraph of the Treaty on European Union. ~~__________________ 53~~Member States should ensure effective legal protection in the fields covered by Union law __________________ 53 OJ C 326, 26.10.2012, p. 391. OJ C 326, 26.10.2012, p. 391.

Amendment 25 #

Proposal for a directive
Recital 4 a (new)

Amendment 26 #

Bernhard RAPKAY

Proposal for a directive
Recital 4 a (new)

(4a) Whereas Member States should be encouraged to maintain or introduce collective redress schemes for the purpose of strengthening the claimants' possibilities to bring actions for damages for infringement of competition law, common rules are required at Union level in order to allow damaged parties in all Member States to avail themselves of such schemes in order to ensure greater equality of arms between the parties to the dispute. In order to preserve the consumers' right of choice and avoid abusive use, such schemes should comply with the framework set out by European Commission Recommendation 2013/396/EU.

Amendment 27 #

Proposal for a directive
Recital 5

Amendment 28 #

Proposal for a directive
Recital 5 a (new)

Amendment 29 #

Proposal for a directive
Recital 6

Amendment 30 #

Proposal for a directive
Recital 8

(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 and an obligation for the Member States to introduce collective redress mechanisms based on defined common principles will also help to prevent the emergence of wider differences between the Member States' rules governing actions for damages in competition cases.

Amendment 31 #

Proposal for a directive
Recital 8

(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 to prevent further lack of consumer's confident in the internal market due to the current difficulties in obtaining compensation for the harm they have suffered.

Amendment 32 #

Proposal for a directive
Recital 11

Amendment 33 #

Proposal for a directive
Recital 11

Amendment 34 #

Proposal for a directive
Recital 11 a (new)

(11a) SMEs and consumers suffer damage because of legal ineffectiveness due to lack of cost effective enforcement of Article 101 and 102 of the Treaty. This imbalance gives opportunity for large companies to exploit their size and financial positions in the internal market towards SMEs. The collective redress procedures for access to justice, especially for SMEs and consumers, are vital factors in order to preserve consumers' right of choice and avoid abusive acts, to enforce legal rights. The aims of the proposed directive may not be fully reached if collective redress is not available to SMEs and consumers to initiate legal procedures for damages for competition law infringements; the Commission shall launch a study assessing how Member States apply collective redress procedures to private damage claims for the enforcement of infringements to Articles 101 and 102 of the Treaty. Member States should ensure that all injured parties proficiently and cost effective can exercise their claims for damages. This includes assessing the possibilities of making collective redress procedures available for private damages claims.

Amendment 35 #

Proposal for a directive
Recital 11 a (new)

Amendment 36 #

Proposal for a directive
Recital 13

Amendment 37 #

Proposal for a directive
Recital 14

Amendment 38 #

Proposal for a directive
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

(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 40 #

Proposal for a directive
Recital 17

Amendment 41 #

Proposal for a directive
Recital 17 a (new)

(17a) When applying for leniency or settlement procedure, an undertaking needs to have an unequivocal upfront legal certainty that its self-incriminating corporate statements are not revealed to third parties. Victims should be given access to any other information useful to prove their claims. The protection of self- incriminating corporate statements ensures undertakings continue cooperating with public authorities, thus enabling them to pursue more cartels and therefore empowering victims to gain redress.

Amendment 42 #

Proposal for a directive
Recital 19

(19) Leniency programmes and settlement procedures ~~are important~~can be some of the tools for the public enforcement of Union competition law asif 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 and if they contribute in having companies preliminary to report suspicions of possible own breach to prevent infringements of ~~Union or nat~~the Unionals competition law ~~to a competition authority under a leniency programme or a settlement procedure, such statements should be excepted from disclosure of evidence~~.

Amendment 43 #

Proposal for a directive
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

(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.deleted

Amendment 45 #

Proposal for a directive
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

(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 47 #

Proposal for a directive
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, while also respecting that it is normal business practice to pass on overcharges down the supply chain. 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 48 #

Proposal for a directive
Recital 31

Amendment 49 #

Proposal for a directive
Recital 41

(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.deleted

Amendment 50 #

Proposal for a directive
Article 1 – paragraph 1

Amendment 51 #

Proposal for a directive
Article 2 – paragraph 1

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 from the infringing parties in either a direct or a follow-on private case.

Amendment 52 #

Proposal for a directive
Article 2 – paragraph 3

3. Member States shall ensure that all injured parties can proficiently and costs effectively exercise their claims for damages. Member States shall introduce collective redress mechanisms based on defined common principles for the enforcement of Articles 101 and 102 of the Treaty as stipulated in the Commission Recommendation 2013/396/EU. Member States shall ensure that all injured parties proficiently and cost effective can exercise their claims for damages. This includes assessing the possibilities of making collective redress procedures available for private damages claims.

Amendment 53 #

Proposal for a directive
Article 2 – paragraph 3 a (new)

Amendment 54 #

Proposal for a directive
Article 4 – paragraph 1 – point 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; This definition does not apply to national laws which impose criminal sanctions on natural persons except to the extent that such sanctions are the means whereby competition rules applying to undertakings are enforced.

Amendment 55 #

Proposal for a directive
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 provides for this possibility~~;

Amendment 56 #

Proposal for a directive
Article 4 – paragraph 1 – point 3

3. ‘'action for damages’' means an action ~~under national law by which an injured party brings~~by which a claim for damages is brought before a national court~~; it may also cover actions by which~~ or 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;

Amendment 57 #

Proposal for a directive
Article 4 – paragraph 1 – point 3 a (new)

Amendment 58 #

Proposal for a directive
Article 4 – paragraph 1 – point 5

5. ‘injured party’ means anyone who has ~~a claim for damages~~suffered harm as a result of anti- competitive behaviour;

Amendment 59 #

Proposal for a directive
Article 4 – paragraph 1 – point 12

12. ‘'cartel’' means ~~an agreement and/or concerted practice between two o~~two or more horizontal competitors co-ordinating their behaviour within a market to earn rents above those possible under mnoremal competit~~ors aimed at~~ion, or co- ordinating their ~~competitive behaviour on the market and/or influencing the relevant parameters of competition~~behaviour within a market to exclude undertakings operating under normal market conditions from gaining market share, through practices such as, inter alia, the fixing or coordination of purchase or selling prices or other trading conditions, abusive licensing practices, 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;

Amendment 60 #

Proposal for a directive
Article 4 – paragraph 1 – point 14

Amendment 61 #

Proposal for a directive
Article 4 – paragraph 1 – point 16

16. ‘'overcharge’' means ~~any positive difference between the price actually paid and~~when a higher price has been paid due to competition law infringement, calculated by subtracting the price that would have prevailed in the absence of an infringement of competition law from the actual price paid;

Amendment 62 #

Proposal for a directive
Article 5 – paragraph 1 – subparagraph 1

Member States shall ensure that, where a claimant has presented reasonably available facts ~~and~~or 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, the defendant or a third party to disclose reasonably available facts or evidence on request of ~~the defendant~~such a claim.

Amendment 63 #

Proposal for a directive
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 c~~ and in accordance with the provisions of Article 2 of this Directive. Member States shall ensure that the national courts request the disclosure of evidence from the national competition authority where the defendant does not provide the evidence requested. Courts are also able to order the claimant or a third party to disclose evidence on request of the defendant.

Amendment 64 #

Proposal for a directive
Article 5 – paragraph 1 – subparagraph 1

Amendment 65 #

Proposal for a directive
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

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.deleted

Amendment 67 #

Proposal for a directive
Article 5 – paragraph 2 – point a

(a) ~~show~~provided a reasoned justification that evidence in the control of the other party or a third party is relevant in terms of substantiating his claim or defence; and

Amendment 68 #

Proposal for a directive
Article 5 – paragraph 2 – point b

(b) specified in the reasoned justification 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.

Amendment 69 #

Proposal for a directive
Article 5 – paragraph 3 – introductory part

3. Member States shall ensure that national courts limit disclosure of evidence to that which is proportionate and necessary for the purpose of estimating the harm caused, pursuant to Article 2 of this Directive. 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:

Amendment 70 #

Proposal for a directive
Article 5 – paragraph 3 – point b a (new)

(ba) the likelihood that the evidence is included in the file of a competition authority;

Amendment 71 #

Proposal for a directive
Article 5 – paragraph 3 – point c

(c) whether the evidence to be disclosed contains confidential information, especially concerning any third parties, and the arrangements for protecting such confidential information; ~~and~~

Amendment 72 #

Proposal for a directive
Article 5 – paragraph 3 – point d

Amendment 73 #

Proposal for a directive
Article 5 – paragraph 3 – point d

(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.

Amendment 74 #

Proposal for a directive
Article 5 – paragraph 3 – point d

Amendment 75 #

Proposal for a directive
Article 5 – paragraph 3 – point d a (new)

(da) the existence of any leniency corporate statements.

Amendment 76 #

Proposal for a directive
Article 5 – paragraph 4

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 to the extent possible is available in the action for damages.

Amendment 77 #

Proposal for a directive
Article 5 – paragraph 5

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. However, where a claimant has presented reasonably available facts and evidence sufficient to support plausibly that he, or those he represents, has suffered harm caused by the defendant's infringement of competition rules and that documents containing self-incriminating evidence are indispensable to supporting their claim and contains evidence that cannot be otherwise provided, national courts may order the defendant or a third party to disclose evidence. Member states shall ensure that national courts are also able to order the claimant or a third party to disclose evidence on request of the defendant. This provision shall be without prejudice to the rights and obligations of national courts under Council Regulation (EC)1206/2001.

Amendment 78 #

Proposal for a directive
Article 5 – paragraph 5

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 in accordance to national law.

Amendment 79 #

Proposal for a directive
Article 5 – paragraph 6

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 provided with the possibility to be heard by the court.

Amendment 80 #

Proposal for a directive
Article 5 – paragraph 6

6. Member States shall ensure that, ~~to the extent that their courts have powers to~~before ordering disclosure ~~without~~, the national courts hear~~ing~~ 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~~.

Amendment 81 #

Proposal for a directive
Article 5 – paragraph 7

7. Evidence shall include all types of evidence admissible before the national court seiszed, ~~in particular documents and all other objects containing information, irrespective of the medium on which the information is stored~~with the exception of leniency corporate statements.

Amendment 82 #

Proposal for a directive
Article 5 – paragraph 8

Amendment 83 #

Proposal for a directive
Article 6 – paragraph 1 – introductory part

Amendment 84 #

Proposal for a directive
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 or~~shall in general not order a competition a uth~~ird par~~ority to disclose any of the following categories of evidence:

Amendment 85 #

Proposal for a directive
Article 6 – paragraph 1 – point a

~~(a) leniency corporate statements; an~~deleted

Amendment 86 #

Proposal for a directive
Article 6 – paragraph 1 – point a

(a) leniency corporate statements of the first leniency applicant; and

Amendment 87 #

Proposal for a directive
Article 6 – paragraph 1 – point a

(a) leniency corporate statements at least of the first leniency applicant, excluding annexes; and

Amendment 88 #

Proposal for a directive
Article 6 – paragraph 1 – point b

~~(b) settlement submissions.~~deleted

Amendment 89 #

Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1 (new)

internal documents of the national competition authority, correspondence between the Commission and the national competition authorities or between the latter within the European Competition Network;

Amendment 90 #

Proposal for a directive
Article 6 – paragraph 2 – introductory part

Amendment 91 #

Proposal for a directive
Article 6 – paragraph 2 – point b a (new)

(ba) settlement submissions and withdrawn offers.

Amendment 92 #

Proposal for a directive
Article 6 – paragraph 3

3. Disclosure of evidence in the file of a competition authority that ~~doe~~is not ~~fall into any of the categories listed in~~covered under paragraphs 1 or 2 of this Article may be ordered in actions for damages at any time, including evidence that exists irrespective of the proceedings of a competition authority.

Amendment 93 #

Proposal for a directive
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~~only after the statement of objections (or other equivalent national competition authority document); disclosure shall be without prejudice to the power of the national competition authority to defer access, for reasons relating to the investigations, until the end of the antitrust proceedings.

Amendment 94 #

Proposal for a directive
Article 6 – paragraph 3

Amendment 95 #

Proposal for a directive
Article 6 – paragraph 3

Amendment 96 #

Proposal for a directive
Article 7

Limits on the use of evidence obtained 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 personArticle 7 deleted 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.

Amendment 97 #

Proposal for a directive
Article 7 – paragraph 1

Amendment 98 #

Proposal for a directive
Article 7 – paragraph 1 a (new)

1a. Member States shall ensure that for the purposes of facilitating amicable negotiations, potential claimants can obtain the evidence regarding quantum of loss from the competition authority or the defendant without the need of starting a judicial action in court.

Amendment 99 #