CD: Could you provide some background on the implementation of the EU Damages Directive? What developments across the EU competition litigation landscape led to the introduction of the Directive?

Kelly: The European Commission has been reviewing antitrust damages actions since at least 2003, when it commissioned a report comparing the status of damages regimes between EU Member States. This report concluded that there was “astonishing diversity” between the regimes of different Member States and “total underdevelopment” in general. The Commission subsequently published green and white policy papers on the issue, and commissioned a further report on making damages actions more effective, but did not publish its proposal for a directive until June 2013. The Directive passed its final legislative hurdle on 10 November 2014, when it was adopted by the European Council, and has to be implemented in Member States through domestic legislation by 27 December 2016.

Woolich: The Directive is a response to an impression that rules on antitrust damages actions in the EU were too diverse between Member States and that, in a number of Member States, the rules included unnecessary obstacles to successful claims being brought. In a sense it was the lack of development across the EU landscape that led to the introduction of the Damages Directive. The effective and consistent enforcement of antitrust law across the EU is considered to be very important to the development of the EU’s single market, especially as certain breaches of antitrust law, such as the division of national markets between competitors, have the potential to seriously harm its development. While the threat of large regulatory fines may be an effective deterrent against anticompetitive behaviour, the recitals to the Directive make it clear that private enforcement is intended as an equally effective deterrent.

Oct-Dec 2016 issue

Holman Fenwick Willan