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Europe's new Directive on antitrust damagesProfessor Kevin A. Diehl *

Subject: Competition law. Other related subjects: Civil evidence. Civil procedure.Damages. Dispute resolution. European UnionKeywords: Alternative dispute resolution; Cartels; Damages; Disclosure; EU law; Joint andseveral lia ilit!; "imitation periods; Passing on; Private enforcementLegislation: Directive #$%&'%$& on actions for damages under national law for infringementsof the competition law provisions (#$%&) J "+&,'%

*G.C.L.R. 34 Introductionn -ovem er # / #$%&/ the EU Parliament and Council enacted the Directive on Antitrust

Damages. 0n enacting this Directive/ the odies sought to olster arts %$% and %$# of the1reat! on the 2unctioning of the EU 312EU4. 5ecause differences in procedural rules andlia ilit! among EU countries can create im alances in the internal mar6et/ the legislatorsrelied in part of arts %$+ and %%& 12EU to legislate these changes. 1he main provisionsesta lish easier access to evidence/ final infringement decisions with more widespreadprecedential authorit!/ limitation periods/ re utta le presumptions for indirect customers inpassing7on situations/ full compensation for victims/ re utta le presumptions of cartelscreating harm/ and 8oint and several lia ilit! on infringers.

Background1he Directive emerged from the June #$%+ Commission proposal to the Parliament andCouncil. % After legislators reviewed the proposal and offered amendments/ discussionmeetings occurred in 2e ruar! #$%& with the o 8ective of reaching compromise. 1heParliament and countries9 governments reached final compromise in :arch #$%&. 1heParliament formall! ac uiesced to the final compromise te

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Evidentiary penaltiesimilarl!/ to encourage continued cooperation with competition authorities/ courts should not

re uire disclosure of lenienc! re uests or settlements unless voluntar! and self7incriminating.As to the defendants/ courts should have penalties availa le to penalise for the *G.C.L.R.35 destruction of evidence. 1he ris6 of adverse inferences would e an effective deterrent ondefendants. As to the plaintiff/ failure to continue maintaining the confidentialit! ofinformation or a use of disclosed information should similarl! face penalties.

Precedential aut ority Efficienc! should e encouraged. 2indings of infringement under art.%$% or %$# 12EU shouldnot re uire further litigation on the proofs as damages causes of action are filed. 2orinstance/ in actions in countries other than the final infringement ruling countr!/ this findingshould nonetheless e prima facie evidence. n the other hand/ national competitionauthorities9 decisions should not interfere with national courts9 rights under art.# B 12EU.

!tatute of limitations time1he limitations time should not start efore competition authorit! infringement proceedingscease or efore the potential plaintiff 6nows or reasona l! can e e

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1he Directive encourages alternative dispute resolution. 2irst/ it permits the statute oflimitations to stop running during such proceedings. econd/ the Directive allows nationalcourts to suspend proceedings for the resolution to proceed. 2inall!/ settling infringers shouldnot e pursued for all the damages under 8oint and several lia ilit! unless the other infringerscannot full! compensate the plaintiffs for the rest of the damages. >owever/ even thise

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sa!s that there should in no wa! e overcompensation. 1hus/ the emphasis is more onrestoring the victims to the place the! should have een than on punishing the infringers asthe deterrent. Discovering competition infringements is far more difficult than man! othercauses of action/ which the Directive even ac6nowledges on man! occasions. 1hus/ imposingpunitive damages for the infringements noticed seems important to deter the others whootherwise could continue undetected. =ithout even permitting nations to impose punitive

damages as no overcompensation is allowed/ the Directive does not move far enough.Again/ the EU fear that more litigation than necessar! could result seems to underlie thechoice not to move more completel! toward the U model of private antitrust enforcement.>owever/ as this paper has previousl! stated/ detecting competition violations is more difficultthan for man! other causes of action. As such/ private antitrust litigation/ even with still morelenient rules for plaintiffs in the U / falls far short of the num er of causes of action forsecurities fraud violation/ derivative actions/ etc. =hile these implications could seem to eplaintiff friendl!/ readers should strongl! consider that client companies are far more li6el! to

e victims in competition infringement actions than in an! other t!pes of usiness litigation/such as the securities fraud/ derivative actions/ etc./ previousl! mentioned.

Conclusion1he main provisions esta lish easier access to evidence/ final infringement decisions withmore widespread precedential authorit!/ limitation periods/ re utta le presumptions forindirect customers in passing7on situations/ full compensation for victims/ re utta lepresumptions of cartels creating harm/ and 8oint and several lia ilit! on infringers. =hileman! of the new provisions to help victims of competition infringement do offer moreeffective assistance than what e