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This is a historical view (2014/05/04)

Changes: 2023/08/03docs, events.docs.url, links.National_parliaments.url, committees.associated, 2021/12/18docs.docs.url, procedure.Other_legal_basis, events, events.type, events.docs.url, procedure.Modified_legal_basis, committees.shadows, docs, 2020/01/19committees, events.docs.url, docs.body, 2019/07/06events, procedure.final.url, procedure.dossier_of_the_committee, procedure.Mandatory_consultation_of_other_institutions, other, activities, procedure.subject, commission, docs, otherinst, committees, procedure.Modified_legal_basis, procedure.other_consulted_institutions, council, 2015/11/04activities.docs.celexid, 2015/11/04activities.docs.celexid, links.European_Commission.title, activities.docs.url, 2015/01/07procedure.final.url, procedure.final.title, activities.docs, activities.text, 2014/12/11procedure.final, procedure.stage_reached, activities, 2014/12/04activities, 2014/11/27procedure.stage_reached, activities, 2014/11/14activities.committees.shadows.mepref, committees.shadows.mepref, 2014/11/12procedure.stage_reached, activities, other, 2014/11/09activities.committees.shadows.mepref, committees.rapporteur.mepref, activities.committees.rapporteur.mepref, committees.shadows.mepref, 2014/08/08activities.type, activities.docs, 2014/07/27committees.shadows.group, activities.committees.shadows.group, 2014/07/26committees.shadows.group, activities.committees.shadows.group, 2014/07/25committees.shadows.group, activities.committees.shadows.group, 2014/07/24committees.shadows.group, activities.committees.shadows.group, 2014/07/23committees.shadows.group, activities.committees.shadows.group, 2014/07/22committees.shadows.group, activities.committees.shadows.group, 2014/07/21committees.shadows.group, activities.committees.shadows.group, 2014/07/20committees.shadows.group, activities.committees.shadows.group, 2014/07/19committees.shadows.group, activities.committees.shadows.group, 2014/07/18committees.shadows.group, activities.committees.shadows.group, 2014/07/17committees.shadows.group, activities.committees.shadows.group, 2014/07/16activities.committees.shadows, activities.committees.rapporteur, activities.committees.date, committees.shadows, committees.date, committees.rapporteur, 2014/07/07activities.committees.shadows, activities.committees.rapporteur, activities.committees.date, procedure.Modified_legal_basis, committees.shadows, committees.date, committees.rapporteur, 2014/05/14activities.docs.text, 2014/05/04activities.docs.url

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Provisional agreement between Parliament and Council on final act



2013/0185(COD) Rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the EU
RoleCommitteeRapporteurShadows
Lead ECON SCHWAB Andreas (EPP) SÁNCHEZ PRESEDO Antolín (S&D), IN 'T VELD Sophia (ALDE), EICKHOUT Bas (Verts/ALE), EPPINK Derk Jan (ECR), KLUTE Jürgen (GUE/NGL)
Opinion IMCO SCHMIDT Olle (ALDE)
Opinion ITRE
Opinion JURI RAPKAY Bernhard (S&D)
Lead committee dossier: ECON/7/13019
Legal Basis TFEU 103-p1, TFEU 114

Activites

  • 2014/04/17 Decision by Parliament, 1st reading/single reading
    • T7-0451/2014
  • 2014/04/16 Debate in Parliament
  • 2014/02/04 Committee report tabled for plenary, 1st reading/single reading
    • A7-0089/2014 summary
  • 2014/01/27 Vote in committee, 1st reading/single reading
  • 2013/12/12 Referral to associated committees announced in Parliament
  • #3276
  • 2013/12/03 Council Meeting
    • 3276 summary
  • 2013/07/01 Committee referral announced in Parliament, 1st reading/single reading
  • 2013/06/11 Legislative proposal published
    • COM(2013)0404 summary
    • DG {'url': 'http://ec.europa.eu/dgs/competition/', 'title': 'Competition'}, ALMUNIA Joaquín

Documents

  • Legislative proposal published: COM(2013)0404
  • Debate in Council: 3276
  • Committee report tabled for plenary, 1st reading/single reading: A7-0089/2014
  • Debate in Parliament: Debate in Parliament
  • Decision by Parliament, 1st reading/single reading: T7-0451/2014
AmendmentsDossier
363 2013/0185(COD)
2013/10/18 IMCO 80 amendments...
source: PE-521.778
2013/11/08 ECON 164 amendments...
source: PE-521.623
2013/12/20 JURI 119 amendments...
source: PE-526.199

History

(these mark the time of scraping, not the official date of the change)

activities/7/docs/0/url
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2014-0451
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2014-04-17T00:00:00
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activities/2/docs
  • url: http://register.consilium.europa.eu/content/out?lang=EN&typ=SET&i=SMPL&ROWSPP=25&RESULTSET=1&NRROWS=500&DOC_LANCD=EN&ORDERBY=DOC_DATE+DESC&CONTENTS=3276*&MEET_DATE=03/12/2013 type: Debate in Council title: 3276
activities/2/text
  • The Council agreed on a general approach on a draft directive concerning actions for damages for breaches of antitrust law which aims to facilitate claims by victims of infringements of EU competition rules. It invited the Presidency to start negotiations with the European Parliament on the basis of the general approach with a view to reaching an agreement at first reading.

    The main points of the compromise were as follows:

    Legal basis: the compromise text maintains the dual legal basis as proposed by the Commission.

    Limits on the use of evidence obtained solely through access to the file of a competition authority (Article 7): the wording has been amended in order to allow Member States to protect the documents that have been obtained by a natural or legal person solely through access to the file of a competition authority by either classifying them as inadmissible or by other means, using the tools available under national law.

    Such a provision, while securing the protection of the identified documents, does not predetermine the ways in which Member States shall secure such protection.

    Effect of national decisions (Article 9): the Presidency compromise removes the cross-border binding effect of national decisions and only obliges Member States to accept them as means of evidence, in line with applicable national procedural rules.

    Joint and several liability (Article 11): the objective of the Commission proposal was to strike the right balance between private and public enforcement of competition law.

    The proposal states that it should be avoided that by paying contribution to non-settling co-infringers for damages they paid to non-settling injured parties, the total amount of compensation paid by the settling co-infringers exceeds their relative responsibility for the harm caused by the infringement. It is therefore appropriate that the immunity recipient is liable in principle only to his own direct and indirect purchasers or providers. The immunity recipient should remain fully liable to the injured parties other than his direct or indirect purchasers or providers only where they cannot obtain full compensation from the other infringers.

    The Presidency compromise deletes the sentence, thereby limiting the protection of leniency applicants against civil liability to what is necessary to neutralise the negative effect of actions for damages on leniency programmes and public enforcement.

activities/2/docs
  • url: http://register.consilium.europa.eu/content/out?lang=EN&ff_FT_TEXT=3276&dd_DATE_REUNION=03/12/2013&single_date=03/12/2013 type: Debate in Council title: 3276
activities/2/text
  • The Council agreed on a general approach on a draft directive concerning actions for damages for breaches of antitrust law which aims to facilitate claims by victims of infringements of EU competition rules. It invited the Presidency to start negotiations with the European Parliament on the basis of the general approach with a view to reaching an agreement at first reading.

    The main points of the compromise were as follows:

    Legal basis: the compromise text maintains the dual legal basis as proposed by the Commission.

    Limits on the use of evidence obtained solely through access to the file of a competition authority (Article 7): the wording has been amended in order to allow Member States to protect the documents that have been obtained by a natural or legal person solely through access to the file of a competition authority by either classifying them as inadmissible or by other means, using the tools available under national law.

    Such a provision, while securing the protection of the identified documents, does not predetermine the ways in which Member States shall secure such protection.

    Effect of national decisions (Article 9): the Presidency compromise removes the cross-border binding effect of national decisions and only obliges Member States to accept them as means of evidence, in line with applicable national procedural rules.

    Joint and several liability (Article 11): the objective of the Commission proposal was to strike the right balance between private and public enforcement of competition law.

    The proposal states that it should be avoided that by paying contribution to non-settling co-infringers for damages they paid to non-settling injured parties, the total amount of compensation paid by the settling co-infringers exceeds their relative responsibility for the harm caused by the infringement. It is therefore appropriate that the immunity recipient is liable in principle only to his own direct and indirect purchasers or providers. The immunity recipient should remain fully liable to the injured parties other than his direct or indirect purchasers or providers only where they cannot obtain full compensation from the other infringers.

    The Presidency compromise deletes the sentence, thereby limiting the protection of leniency applicants against civil liability to what is necessary to neutralise the negative effect of actions for damages on leniency programmes and public enforcement.

activities/6/date
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2014-04-16T00:00:00
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2014-04-17T00:00:00
activities/5/docs/0/text
  • The Committee on Economic and Monetary Affairs adopted the report by Andreas SCHWAB (EPP, DE) on the proposal for a directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.

    The Committee on Economic and Monetary Affairs, exercising its prerogatives as an associated committee under Parliament’s Rule 50 of the Rules of Procedure, also gave an opinion on the report.

    The committee recommended that Parliament’s position adopted at first reading following the ordinary legislative procedure should amend the Commission proposal as follows:

    Scope of the Directive: anyone who has suffered harm caused by an infringement of Article 101 or 102 TFEU or of national competition law by an undertaking or by a group of undertakings could effectively exercise the right to claim full compensation for that harm from that undertaking or group.

    Right to full compensation: a person who has suffered harm caused by an infringement of Union or national competition law should be able to claim and obtain full compensation for that harm. Full compensation shall not include other damages such as punitive damages or multiple damages, and penalties leading to overcompensation. The total level of fines and damages paid shall not be affected by proceedings on the part of the competition authority that follow on from or precede a private action.

    Disclosure of evidence: Member States should ensure that in a proceeding relating to an action for damages before a national court in the Union upon request of a claimant who has presented a reasoned justification containing available facts and evidence sufficient to support the plausibility of its claim for damages. National courts can order the defendant or a third party to disclose relevant evidence. Member States shall ensure that national courts request the disclosure of evidence from the national competition authority where the defendant does not provide the evidence requested.

    Member States should ensure that: (i) national courts limit disclosure of evidence to that which is proportionate and which relates to an action for damages in the Union; (ii) national courts have the power to order disclosure of evidence containing confidential information where they consider it relevant to the action for damages; (iii) national courts give full effect to applicable legal professional privilege under Union or national law when ordering the disclosure of evidence.

    Interested parties in possession of a document requested for disclosure should be heard before a national court orders disclosure regarding information derived from the specified documents.

    Disclosure of evidence included in the file of a competition authority: it is stipulated that as a general rule, national courts shall not order a party or a third party to disclose either of the following categories of evidence in any form: (a) leniency statements; or (b) settlement submissions.

    Where a claimant has presented reasonably available facts and evidence showing plausibly that certain data or information pertaining to a document included in the file of a competition authority which cannot be otherwise provided is necessary for determining the damage and supporting its claim, national courts, may: (a) access and analyse such a document; (b) hear the interested parties in the possession of it; and (c) order the limited disclosure of the relevant data.

    Limitation periods: the limitation period should begin on the latest date after an injured party knows.

    Joint and several liability: where the undertaking is a small or medium-sized enterprise, has not led or induced the infringement of competition law by other undertakings and has shown that its relative responsibility for the damage caused by the infringement is less than 5 % of the total, that it shall only be liable to its direct and indirect purchasers.

    Suspensive effect of consensual dispute resolution: according to the proposal, Member States shall ensure that national courts seized of an action for damages may suspend proceedings where the parties to those proceedings are involved in consensual dispute resolution concerning the claim covered by that action for damages. Members considered that this suspension should not be longer than one year.

    Following a consensual settlement, a competition authority may consider the compensation paid prior to the decision as a mitigating factor when setting fines.

    Review: the Commission should review this Directive and shall submit a report to the European Parliament and the Council by four years after the date of entry into force of this Directive. Where appropriate, that review should be accompanied by a legislative proposal.

activities/5/docs
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activities/4/committees
  • body: EP shadows: group: S&D name: SÁNCHEZ PRESEDO Antolín group: ALDE name: IN 'T VELD Sophia group: Verts/ALE name: EICKHOUT Bas group: ECR name: EPPINK Derk Jan group: GUE/NGL name: KLUTE Jürgen responsible: True committee: ECON date: 2013-06-18T00:00:00 committee_full: Economic and Monetary Affairs (Associated committee) rapporteur: group: EPP name: SCHWAB Andreas
  • body: EP responsible: False committee: IMCO date: 2013-07-09T00:00:00 committee_full: Internal Market and Consumer Protection rapporteur: group: ALDE name: SCHMIDT Olle
  • body: EP responsible: False committee_full: Industry, Research and Energy committee: ITRE
  • body: EP responsible: False committee: JURI date: 2013-06-19T00:00:00 committee_full: Legal Affairs (Associated committee) rapporteur: group: S&D name: RAPKAY Bernhard
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Rules of Procedure of the European Parliament EP 138
activities/2/docs/0/text
  • The Council agreed on a general approach on a draft directive concerning actions for damages for breaches of antitrust law which aims to facilitate claims by victims of infringements of EU competition rules. It invited the Presidency to start negotiations with the European Parliament on the basis of the general approach with a view to reaching an agreement at first reading.

    The main points of the compromise were as follows:

    Legal basis: the compromise text maintains the dual legal basis as proposed by the Commission.

    Limits on the use of evidence obtained solely through access to the file of a competition authority (Article 7): the wording has been amended in order to allow Member States to protect the documents that have been obtained by a natural or legal person solely through access to the file of a competition authority by either classifying them as inadmissible or by other means, using the tools available under national law.

    Such a provision, while securing the protection of the identified documents, does not predetermine the ways in which Member States shall secure such protection.

    Effect of national decisions (Article 9): the Presidency compromise removes the cross-border binding effect of national decisions and only obliges Member States to accept them as means of evidence, in line with applicable national procedural rules.

    Joint and several liability (Article 11): the objective of the Commission proposal was to strike the right balance between private and public enforcement of competition law.

    The proposal states that it should be avoided that by paying contribution to non-settling co-infringers for damages they paid to non-settling injured parties, the total amount of compensation paid by the settling co-infringers exceeds their relative responsibility for the harm caused by the infringement. It is therefore appropriate that the immunity recipient is liable in principle only to his own direct and indirect purchasers or providers. The immunity recipient should remain fully liable to the injured parties other than his direct or indirect purchasers or providers only where they cannot obtain full compensation from the other infringers.

    The Presidency compromise deletes the sentence, thereby limiting the protection of leniency applicants against civil liability to what is necessary to neutralise the negative effect of actions for damages on leniency programmes and public enforcement.

activities/0
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2013-06-11T00:00:00
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activities/0/docs/0/text
  • PURPOSE: to facilitate the introduction of damage and interest claims by victims of antitrust violations.

    PROPOSED ACT: Directive of the European Parliament and of the Council.

    ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure and on an equal footing with the Council.

    BACKGROUND: damages claims for breaches of Articles 101 or 102 of the Treaty on the Functioning of the European Union (TFEU) constitute an important area of private enforcement of EU competition law. It follows from the direct effect of the prohibitions laid down in Articles 101 and 102 of the Treaty that any individual can claim compensation for the harm suffered, where there is a causal relationship between that harm and an infringement of the EU competition rules. Injured parties must be able to seek compensation not only for the actual loss suffered but also for the gain of which they have been deprived plus interest.

    The Court of Justice of the European Union has clarified that the full effectiveness of the EU competition rules and, in particular, the practical effect of the prohibitions they contain would be put at risk if it were not open to any person to claim damages for loss caused to him/her by a contract or conduct liable to restrict or distort competition. It considered that damages actions strengthen the working of the EU competition rules and can thus make a significant contribution to maintaining effective competition in the EU.

    While the right to full compensation is guaranteed by the Treaty itself, the practical exercise of this right is often rendered difficult or almost impossible because of the applicable rules and procedures. Despite some recent signs of improvement in a few Member States, to date most victims of infringements of the EU competition rules in practice do not obtain compensation for the harm suffered. Besides these specific substantive obstacles to effective compensation (already identified in the Commission’s 2005 Green Paper), there is a wide diversity as regards the national legal rules governing antitrust damages actions.

    To remedy this situation, the Commission put forward concrete policy proposals in its 2008 White Paper. In the ensuing public consultation, civil society and institutional stakeholders, such as the European Parliament, largely welcomed these policy measures and called for specific EU legislation on antitrust damages actions.

    IMPACT ASSESSMENT: the impact assessment report focused on four options which ranged from no action at the EU level, through a soft-law approach, to two options for legally binding EU action. The preferred option is considered to be the most cost-efficient way of achieving the set objectives.

    LEGAL BASIS: Articles 103 and 114 of the Treaty on the Functioning of the European Union (TFEU).

    CONTENT: this proposal seeks to ensure the effective enforcement of the EU competition rules in particular by ensuring that victims of infringements of the EU competition rules can obtain full compensation for the harm they suffered.

    Scope: the proposed Directive would set out rules ensuring equivalent protection throughout the Union for all natural or legal persons for harm they they have suffered as a result of infringements of the EU competition rules and ensure that their right under EU law to full compensation can be effectively exercised in the national courts.

    Disclosure of evidence: provision is made to ensure that, under certain conditions, the national courts can order the defendant or a third party to disclose the evidence a claimant will need to prove his his antitrust damages claim and/or a related defence.

    National courts should have at their disposal effective measures to protect any business secrets or otherwise confidential information disclosed during the proceedings. Furthermore, disclosure should not be allowed where it would be contrary to certain rights and obligations such as the obligation of professional secrecy.

    Probative effect of national decisions: pursuant to Council Regulation No 1/2003, a Commission decision relating to proceedings under Article 101 or 102 of the Treaty has a probative effect in subsequent actions for damages. It is proposed to give final infringement decisions by national competition authorities (or by a national review court) similar effect.

    Limitation periods: the Commission proposes that the national rules on limitation periods for a damages action: (i) allow victims sufficient time (at least five years) to bring an action after they became aware of the infringement, the harm it caused and the identity of the infringer; (ii) prevent a limitation period from starting to run before the day on which a continuous or repeated infringement ceases.

    Joint and several liability: where several undertakings infringe the competition rules jointly (typically in the case of a cartel), it is appropriate that they be jointly and severally liable for the entire harm caused by the infringement. The new proposal, however, introduces certain modifications with regard to the liability regime of immunity recipients.

    Passing-on of overcharges: injured parties are entitled to compensation for actual loss (overcharge harm) and for loss of profit. To ensure that only the direct and indirect purchasers that actually suffered overcharge harm can effectively claim compensation, the proposed Directive explicitly recognises the possibility for the infringing undertaking to invoke the passing-on defence.

    However, in situations where the overcharge was passed on to natural or legal persons at the next level of the supply chain for whom it is legally impossible to claim compensation, the passing-on defence cannot be invoked.

    Quantification of harm: to assist victims of a cartel in quantifying the harm caused by the competition law infringement, the proposed Directive provides for a rebuttable presumption with regard to the existence of harm resulting from a cartel. The infringing undertaking could rebut this presumption and use the evidence at its disposal to prove that the cartel did not cause harm.

    Consensual Dispute Resolution: to provide an incentive to parties to settle their dispute consensually, the proposed Directive aims at optimising the balance between out-of-court settlements and actions for damages.

    BUDGETARY IMPLICATION: the proposed Directive would have no budgetary implications.

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COM(2013)0404
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name
KLUTE Jürgen
activities/0
date
2013-06-11T00:00:00
docs
body
EC
type
Legislative proposal
commission
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activities/0/body
Old
EP
New
EC
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  • DG: url: http://ec.europa.eu/dgs/competition/ title: Competition Commissioner: ALMUNIA Joaquín
activities/0/date
Old
2013-10-03T00:00:00
New
2013-06-11T00:00:00
activities/0/docs/0
url
http://www.europarl.europa.eu/registre/docs_autres_institutions/commission_europeenne/com/2013/0404/COM_COM(2013)0404_EN.pdf
text

PURPOSE: to facilitate the introduction of damage and interest claims by victims of antitrust violations.

PROPOSED ACT: Directive of the European Parliament and of the Council.

ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure and on an equal footing with the Council.

BACKGROUND: damages claims for breaches of Articles 101 or 102 of the Treaty on the Functioning of the European Union (TFEU) constitute an important area of private enforcement of EU competition law. It follows from the direct effect of the prohibitions laid down in Articles 101 and 102 of the Treaty that any individual can claim compensation for the harm suffered, where there is a causal relationship between that harm and an infringement of the EU competition rules. Injured parties must be able to seek compensation not only for the actual loss suffered but also for the gain of which they have been deprived plus interest.

The Court of Justice of the European Union has clarified that the full effectiveness of the EU competition rules and, in particular, the practical effect of the prohibitions they contain would be put at risk if it were not open to any person to claim damages for loss caused to him/her by a contract or conduct liable to restrict or distort competition. It considered that damages actions strengthen the working of the EU competition rules and can thus make a significant contribution to maintaining effective competition in the EU.

While the right to full compensation is guaranteed by the Treaty itself, the practical exercise of this right is often rendered difficult or almost impossible because of the applicable rules and procedures. Despite some recent signs of improvement in a few Member States, to date most victims of infringements of the EU competition rules in practice do not obtain compensation for the harm suffered. Besides these specific substantive obstacles to effective compensation (already identified in the Commission’s 2005 Green Paper), there is a wide diversity as regards the national legal rules governing antitrust damages actions.

To remedy this situation, the Commission put forward concrete policy proposals in its 2008 White Paper. In the ensuing public consultation, civil society and institutional stakeholders, such as the European Parliament, largely welcomed these policy measures and called for specific EU legislation on antitrust damages actions.

IMPACT ASSESSMENT: the impact assessment report focused on four options which ranged from no action at the EU level, through a soft-law approach, to two options for legally binding EU action. The preferred option is considered to be the most cost-efficient way of achieving the set objectives.

LEGAL BASIS: Articles 103 and 114 of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: this proposal seeks to ensure the effective enforcement of the EU competition rules in particular by ensuring that victims of infringements of the EU competition rules can obtain full compensation for the harm they suffered.

Scope: the proposed Directive would set out rules ensuring equivalent protection throughout the Union for all natural or legal persons for harm they they have suffered as a result of infringements of the EU competition rules and ensure that their right under EU law to full compensation can be effectively exercised in the national courts.

Disclosure of evidence: provision is made to ensure that, under certain conditions, the national courts can order the defendant or a third party to disclose the evidence a claimant will need to prove his his antitrust damages claim and/or a related defence.

National courts should have at their disposal effective measures to protect any business secrets or otherwise confidential information disclosed during the proceedings. Furthermore, disclosure should not be allowed where it would be contrary to certain rights and obligations such as the obligation of professional secrecy.

Probative effect of national decisions: pursuant to Council Regulation No 1/2003, a Commission decision relating to proceedings under Article 101 or 102 of the Treaty has a probative effect in subsequent actions for damages. It is proposed to give final infringement decisions by national competition authorities (or by a national review court) similar effect.

Limitation periods: the Commission proposes that the national rules on limitation periods for a damages action: (i) allow victims sufficient time (at least five years) to bring an action after they became aware of the infringement, the harm it caused and the identity of the infringer; (ii) prevent a limitation period from starting to run before the day on which a continuous or repeated infringement ceases.

Joint and several liability: where several undertakings infringe the competition rules jointly (typically in the case of a cartel), it is appropriate that they be jointly and severally liable for the entire harm caused by the infringement. The new proposal, however, introduces certain modifications with regard to the liability regime of immunity recipients.

Passing-on of overcharges: injured parties are entitled to compensation for actual loss (overcharge harm) and for loss of profit. To ensure that only the direct and indirect purchasers that actually suffered overcharge harm can effectively claim compensation, the proposed Directive explicitly recognises the possibility for the infringing undertaking to invoke the passing-on defence.

However, in situations where the overcharge was passed on to natural or legal persons at the next level of the supply chain for whom it is legally impossible to claim compensation, the passing-on defence cannot be invoked.

Quantification of harm: to assist victims of a cartel in quantifying the harm caused by the competition law infringement, the proposed Directive provides for a rebuttable presumption with regard to the existence of harm resulting from a cartel. The infringing undertaking could rebut this presumption and use the evidence at its disposal to prove that the cartel did not cause harm.

Consensual Dispute Resolution: to provide an incentive to parties to settle their dispute consensually, the proposed Directive aims at optimising the balance between out-of-court settlements and actions for damages.

BUDGETARY IMPLICATION: the proposed Directive would have no budgetary implications.

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Legislative proposal published
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PE516.968
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SWD(2013)0203
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EC
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  • DG: url: http://ec.europa.eu/dgs/competition/ title: Competition Commissioner: ALMUNIA Joaquín
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2013-10-03T00:00:00
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2013-06-11T00:00:00
activities/0/docs/0
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http://www.europarl.europa.eu/registre/docs_autres_institutions/commission_europeenne/com/2013/0404/COM_COM(2013)0404_EN.pdf
text

PURPOSE: to facilitate the introduction of damage and interest claims by victims of antitrust violations.

PROPOSED ACT: Directive of the European Parliament and of the Council.

ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure and on an equal footing with the Council.

BACKGROUND: damages claims for breaches of Articles 101 or 102 of the Treaty on the Functioning of the European Union (TFEU) constitute an important area of private enforcement of EU competition law. It follows from the direct effect of the prohibitions laid down in Articles 101 and 102 of the Treaty that any individual can claim compensation for the harm suffered, where there is a causal relationship between that harm and an infringement of the EU competition rules. Injured parties must be able to seek compensation not only for the actual loss suffered but also for the gain of which they have been deprived plus interest.

The Court of Justice of the European Union has clarified that the full effectiveness of the EU competition rules and, in particular, the practical effect of the prohibitions they contain would be put at risk if it were not open to any person to claim damages for loss caused to him/her by a contract or conduct liable to restrict or distort competition. It considered that damages actions strengthen the working of the EU competition rules and can thus make a significant contribution to maintaining effective competition in the EU.

While the right to full compensation is guaranteed by the Treaty itself, the practical exercise of this right is often rendered difficult or almost impossible because of the applicable rules and procedures. Despite some recent signs of improvement in a few Member States, to date most victims of infringements of the EU competition rules in practice do not obtain compensation for the harm suffered. Besides these specific substantive obstacles to effective compensation (already identified in the Commission’s 2005 Green Paper), there is a wide diversity as regards the national legal rules governing antitrust damages actions.

To remedy this situation, the Commission put forward concrete policy proposals in its 2008 White Paper. In the ensuing public consultation, civil society and institutional stakeholders, such as the European Parliament, largely welcomed these policy measures and called for specific EU legislation on antitrust damages actions.

IMPACT ASSESSMENT: the impact assessment report focused on four options which ranged from no action at the EU level, through a soft-law approach, to two options for legally binding EU action. The preferred option is considered to be the most cost-efficient way of achieving the set objectives.

LEGAL BASIS: Articles 103 and 114 of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: this proposal seeks to ensure the effective enforcement of the EU competition rules in particular by ensuring that victims of infringements of the EU competition rules can obtain full compensation for the harm they suffered.

Scope: the proposed Directive would set out rules ensuring equivalent protection throughout the Union for all natural or legal persons for harm they they have suffered as a result of infringements of the EU competition rules and ensure that their right under EU law to full compensation can be effectively exercised in the national courts.

Disclosure of evidence: provision is made to ensure that, under certain conditions, the national courts can order the defendant or a third party to disclose the evidence a claimant will need to prove his his antitrust damages claim and/or a related defence.

National courts should have at their disposal effective measures to protect any business secrets or otherwise confidential information disclosed during the proceedings. Furthermore, disclosure should not be allowed where it would be contrary to certain rights and obligations such as the obligation of professional secrecy.

Probative effect of national decisions: pursuant to Council Regulation No 1/2003, a Commission decision relating to proceedings under Article 101 or 102 of the Treaty has a probative effect in subsequent actions for damages. It is proposed to give final infringement decisions by national competition authorities (or by a national review court) similar effect.

Limitation periods: the Commission proposes that the national rules on limitation periods for a damages action: (i) allow victims sufficient time (at least five years) to bring an action after they became aware of the infringement, the harm it caused and the identity of the infringer; (ii) prevent a limitation period from starting to run before the day on which a continuous or repeated infringement ceases.

Joint and several liability: where several undertakings infringe the competition rules jointly (typically in the case of a cartel), it is appropriate that they be jointly and severally liable for the entire harm caused by the infringement. The new proposal, however, introduces certain modifications with regard to the liability regime of immunity recipients.

Passing-on of overcharges: injured parties are entitled to compensation for actual loss (overcharge harm) and for loss of profit. To ensure that only the direct and indirect purchasers that actually suffered overcharge harm can effectively claim compensation, the proposed Directive explicitly recognises the possibility for the infringing undertaking to invoke the passing-on defence.

However, in situations where the overcharge was passed on to natural or legal persons at the next level of the supply chain for whom it is legally impossible to claim compensation, the passing-on defence cannot be invoked.

Quantification of harm: to assist victims of a cartel in quantifying the harm caused by the competition law infringement, the proposed Directive provides for a rebuttable presumption with regard to the existence of harm resulting from a cartel. The infringing undertaking could rebut this presumption and use the evidence at its disposal to prove that the cartel did not cause harm.

Consensual Dispute Resolution: to provide an incentive to parties to settle their dispute consensually, the proposed Directive aims at optimising the balance between out-of-court settlements and actions for damages.

BUDGETARY IMPLICATION: the proposed Directive would have no budgetary implications.

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COM(2013)0404
type
Legislative proposal published
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CELEX:52013PC0404:EN
activities/0/docs/1/title
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PE516.968
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SWD(2013)0203
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Old
Committee draft report
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Document attached to the procedure
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activities/0/docs/2
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SWD(2013)0204
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IN 'T VELD Sophia
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EICKHOUT Bas
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2013-07-09T00:00:00
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  • group: ALDE name: SCHMIDT Olle
committees/1/date
2013-07-09T00:00:00
committees/1/rapporteur
  • group: ALDE name: SCHMIDT Olle
activities/0/docs/0/text
  • PURPOSE: to facilitate the introduction of damage and interest claims by victims of antitrust violations.

    PROPOSED ACT: Directive of the European Parliament and of the Council.

    ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure and on an equal footing with the Council.

    BACKGROUND: damages claims for breaches of Articles 101 or 102 of the Treaty on the Functioning of the European Union (TFEU) constitute an important area of private enforcement of EU competition law. It follows from the direct effect of the prohibitions laid down in Articles 101 and 102 of the Treaty that any individual can claim compensation for the harm suffered, where there is a causal relationship between that harm and an infringement of the EU competition rules. Injured parties must be able to seek compensation not only for the actual loss suffered but also for the gain of which they have been deprived plus interest.

    The Court of Justice of the European Union has clarified that the full effectiveness of the EU competition rules and, in particular, the practical effect of the prohibitions they contain would be put at risk if it were not open to any person to claim damages for loss caused to him/her by a contract or conduct liable to restrict or distort competition. It considered that damages actions strengthen the working of the EU competition rules and can thus make a significant contribution to maintaining effective competition in the EU.

    While the right to full compensation is guaranteed by the Treaty itself, the practical exercise of this right is often rendered difficult or almost impossible because of the applicable rules and procedures. Despite some recent signs of improvement in a few Member States, to date most victims of infringements of the EU competition rules in practice do not obtain compensation for the harm suffered. Besides these specific substantive obstacles to effective compensation (already identified in the Commission’s 2005 Green Paper), there is a wide diversity as regards the national legal rules governing antitrust damages actions.

    To remedy this situation, the Commission put forward concrete policy proposals in its 2008 White Paper. In the ensuing public consultation, civil society and institutional stakeholders, such as the European Parliament, largely welcomed these policy measures and called for specific EU legislation on antitrust damages actions.

    IMPACT ASSESSMENT: the impact assessment report focused on four options which ranged from no action at the EU level, through a soft-law approach, to two options for legally binding EU action. The preferred option is considered to be the most cost-efficient way of achieving the set objectives.

    LEGAL BASIS: Articles 103 and 114 of the Treaty on the Functioning of the European Union (TFEU).

    CONTENT: this proposal seeks to ensure the effective enforcement of the EU competition rules in particular by ensuring that victims of infringements of the EU competition rules can obtain full compensation for the harm they suffered.

    Scope: the proposed Directive would set out rules ensuring equivalent protection throughout the Union for all natural or legal persons for harm they they have suffered as a result of infringements of the EU competition rules and ensure that their right under EU law to full compensation can be effectively exercised in the national courts.

    Disclosure of evidence: provision is made to ensure that, under certain conditions, the national courts can order the defendant or a third party to disclose the evidence a claimant will need to prove his his antitrust damages claim and/or a related defence.

    National courts should have at their disposal effective measures to protect any business secrets or otherwise confidential information disclosed during the proceedings. Furthermore, disclosure should not be allowed where it would be contrary to certain rights and obligations such as the obligation of professional secrecy.

    Probative effect of national decisions: pursuant to Council Regulation No 1/2003, a Commission decision relating to proceedings under Article 101 or 102 of the Treaty has a probative effect in subsequent actions for damages. It is proposed to give final infringement decisions by national competition authorities (or by a national review court) similar effect.

    Limitation periods: the Commission proposes that the national rules on limitation periods for a damages action: (i) allow victims sufficient time (at least five years) to bring an action after they became aware of the infringement, the harm it caused and the identity of the infringer; (ii) prevent a limitation period from starting to run before the day on which a continuous or repeated infringement ceases.

    Joint and several liability: where several undertakings infringe the competition rules jointly (typically in the case of a cartel), it is appropriate that they be jointly and severally liable for the entire harm caused by the infringement. The new proposal, however, introduces certain modifications with regard to the liability regime of immunity recipients.

    Passing-on of overcharges: injured parties are entitled to compensation for actual loss (overcharge harm) and for loss of profit. To ensure that only the direct and indirect purchasers that actually suffered overcharge harm can effectively claim compensation, the proposed Directive explicitly recognises the possibility for the infringing undertaking to invoke the passing-on defence.

    However, in situations where the overcharge was passed on to natural or legal persons at the next level of the supply chain for whom it is legally impossible to claim compensation, the passing-on defence cannot be invoked.

    Quantification of harm: to assist victims of a cartel in quantifying the harm caused by the competition law infringement, the proposed Directive provides for a rebuttable presumption with regard to the existence of harm resulting from a cartel. The infringing undertaking could rebut this presumption and use the evidence at its disposal to prove that the cartel did not cause harm.

    Consensual Dispute Resolution: to provide an incentive to parties to settle their dispute consensually, the proposed Directive aims at optimising the balance between out-of-court settlements and actions for damages.

    BUDGETARY IMPLICATION: the proposed Directive would have no budgetary implications.

activities/1/committees/0/date
2013-06-18T00:00:00
activities/1/committees/0/rapporteur
  • group: EPP name: SCHWAB Andreas
committees/0/date
2013-06-18T00:00:00
committees/0/rapporteur
  • group: EPP name: SCHWAB Andreas
activities/1/committees/0/shadows
  • group: ECR name: EPPINK Derk Jan
committees/0/shadows
  • group: ECR name: EPPINK Derk Jan
activities/0/docs/3
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http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SWD:2013:0270:FIN:EN:PDF
type
Document attached to the procedure
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SWD(2013)0270
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date
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4de187d40fb8127435bdc258
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TAYLOR Rebecca
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RAPKAY Bernhard
procedure/dossier_of_the_committee
ECON/7/13019
procedure/stage_reached
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New
Awaiting committee decision
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Commissioner
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  • group: ALDE name: TAYLOR Rebecca
activities
  • date: 2013-06-11T00:00:00 docs: url: http://www.europarl.europa.eu/registre/docs_autres_institutions/commission_europeenne/com/2013/0404/COM_COM(2013)0404_EN.pdf type: Legislative proposal published title: COM(2013)0404 url: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SWD:2013:0203:FIN:EN:PDF type: Document attached to the procedure title: SWD(2013)0203 url: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SWD:2013:0204:FIN:EN:PDF type: Document attached to the procedure title: SWD(2013)0204 type: Legislative proposal body: EC commission:
committees
  • body: EP responsible: True committee_full: Economic and Monetary Affairs committee: ECON
  • body: EP responsible: False committee_full: Internal Market and Consumer Protection committee: IMCO
  • body: EP responsible: False committee_full: Industry, Research and Energy committee: ITRE
  • body: EP responsible: False committee_full: Legal Affairs committee: JURI
links
National parliaments
European Commission
other
    procedure
    reference
    2013/0185(COD)
    Mandatory consultation of other institutions
    Economic and Social Committee
    instrument
    Directive
    legal_basis
    stage_reached
    Preparatory phase in Parliament
    subtype
    Legislation
    title
    Rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the EU
    type
    COD - Ordinary legislative procedure (ex-codecision procedure)
    subject