Media Briefing Note: Better Compensation for Victims of Competition Law

LONDON, 11 June 2013 – Today the European Commission (EC) has adopted a set of proposals in an attempt to make it easier for victims of competition law breaches to bring claims for compensation.

The EC aims to encourage potential claimants to seek compensation, which will act as a further deterrent to competition law violations alongside the significant regulatory fines that can be imposed by EU and national competition authorities.

The new proposals are the culmination of 10 years' work by the EC and they set out minimum standards in various areas in an attempt to harmonise rules across the EU and remove procedural obstacles to private damages claims.

While seeking to encourage potential claimants to seek redress, the Commission is also concerned that claims will not deter whistleblowers from coming forward, as they are a very important part of the enforcement regime.  The provisions therefore include steps to protect whistleblowers to some extent from damages claims and from disclosure of certain documents they provide to the authorities.

The key elements of the draft Directive are:

•    Providing a minimum level of access to evidence, in particular the disclosure of documents.  This will be a significant change in some EU Member States

•    Providing certain protections for whistleblowers from damages actions and from disclosure of specified documents provided as part of their reporting the wrongful conduct to the authorities

•    Providing that claimants can rely on decisions made by competition authorities of other member states

•    Lengthening the time limits within which potential claimants must bring their claims and ensuring they are unified across the EU

•    Providing that it will be presumed in some cases that victims have suffered a loss and that rules for quantifying the loss should not be unduly difficult for the claimant

•    Clarifying the joint and several nature of co-infringers' liability

•    Clarifying the availability of the "passing-on" defence

After the measures have been adopted by the European Parliament and the EU Council of Ministers, EU Member States will have two years to implement them in their national laws.

Separately, the Commission today published a recommendation that EU member states should implement collective redress procedures, or class actions, for various claims including competition claims.

Nicholas Heaton, of Hogan Lovells Antitrust/Litigation practice, said:

"Some Member States will already have national laws in place that comply with the new requirements.  However, the draft Directive does provide for significant developments, for example requiring disclosure of documents and extending time limits for claims.

"Coupled with the Commission's recommendation today that Member States introduce collective claims, or class actions, the proposals will undoubtedly encourage more claims. The Commission has also acted to protect the information provided by whistleblowers. This clarification will be welcome."


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