On 17 April 2014, the EU Parliament adopted a text of the Directive 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 Directive). The Directive is aimed at facilitating private enforcement of European competition law by eliminating complications that infringement victims currently face when considering compensation claims. Member States will have two years from the Directive coming into force to implement it in their respective legal systems. It is to be expected that these changes will result in a significant rise of damages claims being pursued before national state courts. Furthermore, the preference for arbitration when it comes to large scale cross-border disputes is undeniable. As such, an equivalent rise of EU competition follow-on claims being submitted to arbitration would appear natural.

Under the current regime, only a fraction of antitrust infringements are followed by civil actions. The Commission estimates that in the last seven years only 25 percent of infringement decisions have resulted in damages claims. This means that a vast majority of parties who have suffered a loss as a result of a violation of European competition law fail to enforce their right to compensation. Certain victims may be unaware of the violation in the first place. In addition, some victims may have suffered minimal or no loss as a result of the violation. In any event, as things stand at present, a number of obstacles prevent victims from pursuing a claim against infringers. Apart from the general costs and risks inherent in legal proceedings, there are also complications specific to tort claims arising out of violations of EU competition law. These include, but are not limited to, the inaccessibility of evidence, the lack of harmonisation between the Member States’ respective legal systems in respect of crucial issues such as limitation periods, nature and scope of damages, passing-on defence and evidentiary value of previous liability decisions. In this context, the Directive offers new prospects of recovery for victims of antitrust infringements.

Jul-Sep 2014 issue

Bryan Cave