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15 results

The EU Private Damages Directive - Practical Insights
  • Minutes of the Closed Workshop 2015
  • Edited by Wijckmans Frank
  • Visser Maaike, Jaques Sarah, Noël Evi
  • Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    15 March 2016
  • This book on the EU Private Damages Directive (PDD) offers an in-depth discussion of selected issues of interpretation of the PDD. The Directive sets out certain rules necessary to ensure that anyone who has suffered harm caused by an infringement of competition law by an undertaking or by an association of undertakings, can effectively claim full compensation for that harm from that undertaking or association. Each section corresponds with a chapter of the PDD and commences with a description of the general context within which the specific questions must be placed and understood. The outcome of the actual discussion is then provided in a Q&A format. The chapters are the result of a Closed Workshop organised on 21 May 2015 in Brussels, Belgium and which was attended by a group of competition law specialists from the majority of the EU Member States.

  • Introduction

  • Edited by Wijckmans Frank
  • Visser Maaike, Jaques Sarah, Noël Evi
  • Book:
    The EU Private Damages Directive - Practical Insights
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    15 March 2016, pp 1-2

  • Summary

    These are the Minutes of a Closed Workshop organised on 21 May 2015 in Brussels, Belgium. The Closed Workshop was entirely dedicated to the PDD.

    The Closed Workshop was attended by a group of competition law specialists covering the majority of the Member States. A complete list of the attendees is included in Annex 2 to the Minutes.

    The exchange of views during the Closed Workshop was structured as follows. For each Chapter of the PDD a brief introduction was provided. This was then followed by an in-depth discussion of selected issues of interpretation gathered from the participating practitioners.

    The Minutes adhere to the same structure so that each section of the Minutes corresponds to a chapter of the PDD. Every section commences with a description of the general context within which the specific questions addressed during the Closed Workshop must be placed and understood. The outcome of the actual discussion of the specific questions is then provided in a Q&A format, very much resembling the approach used in the Closed Workshop.

    Given the format of the Closed Workshop, inevitably only selected interpretation issues came up and are addressed in these Minutes. The Minutes therefore do not aim to provide a complete commentary or interpretation guide on the PDD. Furthermore, the Minutes reflect the outcome of a debate and are therefore not intended as legal advice, nor as a reflection of the position of the individual law firms involved or of the Commission on the matters addressed.

    By the same token, given the depth of the discussions that took place during the Closed Workshop we are convinced that the Minutes provide useful and meaningful guidance. The joint effort during the Closed Workshop has resulted in a level of understanding of certain aspects of the PDD that to our knowledge have so far not been published.

    We are grateful to Filip Tuytschaever for reviewing an earlier version of these Minutes.

    We like to thank Eddy De Smijter (DG Competition, Head of Unit, ECN and Private Enforcement), Martin Seegers (Cartel Damage Claims), Ben Bornemann (Cartel Damage Claims) and Anneli Howard (Monckton Chambers) for having shared their personal experience with the issue of private damages actions during the Closed Workshop.

  • Chapter II - Disclosure of Evidence

  • Edited by Wijckmans Frank
  • Visser Maaike, Jaques Sarah, Noël Evi
  • Book:
    The EU Private Damages Directive - Practical Insights
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    15 March 2016, pp 29-46

  • Summary

    GENERAL CONTEXT

    88. Chapter II PDD includes Articles 5–8 PDD and deals with different aspects of the disclosure of evidence.

    89. Claimants that wish to bring an action for damages based on infringements of competition law are confronted with an information asymmetry. The evidence necessary to prove a claim for damages is often held exclusively by the opposing party or a third party61 (recital 14 PDD). The PDD therefore creates meaningful and autonomous competence for national courts to order disclosure of evidence from parties to the proceedings and from third parties.

    90. The PDD seeks to impose minimum disclosure requirements (Article 5(8) PDD) which will apply in the national courts. Article 5(1) PDD provides that national courts must have the power to order the defendant or a third party to disclose relevant evidence which lies “in their control” provided that the claimant has presented a reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages. In order to ensure equality of arms, national courts must also be able to order the claimant or a third party to disclose relevant evidence upon request of the defendant (recital 15 PDD). This will be particularly relevant in cases where the defendant invokes a passing-on defence (Article 13 PDD).

    91. National courts must be able to order disclosure of “specified items of evidence “ or “relevant categories of evidence “ circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts set out in the reasoned justification.63 Furthermore, disclosure of evidence under Article 5 PDD must be proportionate. Particular attention should be paid to preventing “fishing expeditions “ (i.e. non-specific or overly broad searches for information unlikely to be of relevance to the parties to the proceedings) (recital 23 PDD).64 National courts must have effective measures at their disposal to protect the disclosure of confidential information (Article 5(4) PDD). Legal privilege must also be respected (Article 5(6) PDD).

  • Chapter I - Subject-Matter, Scope and Definitions

  • Edited by Wijckmans Frank
  • Visser Maaike, Jaques Sarah, Noël Evi
  • Book:
    The EU Private Damages Directive - Practical Insights
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    15 March 2016, pp 3-28

  • Summary

    GENERAL CONTEXT

    1. Chapter I PDD contains provisions on the subject-matter, scope and definitions used in the PDD (Articles 1–4 PDD).

    2. The subject-matter of the PDD is the private enforcement of Articles 101 and 102 TFEU.2 Articles 101 and 102 TFEU produce direct effects in relationships between individuals and create, for the individuals concerned, rights and obligations which can be enforced before the national courts (private enforcement).

    3. Private enforcement must be distinguished from public enforcement. Public enforcement is regulated by Regulation 1/2003,4 which contains provisions governing the powers of enforcement of the Commission, the NCAs5 and the EU Courts in relation to Articles 101 and 102 TFEU. It is acknowledged in the case law of the EU Courts that private and public enforcement interact with each other and that private enforcement “strengthens the working of the Community competition rules by deterring anticompetitive conduct as well as fully compensating those who have suffered harm as a result of the conduct”.

    4. Prior to the adoption of the PDD, it was felt that private enforcement was underdeveloped and that private proceedings were uncertain and ineffective in the EU.7 The PDD therefore seeks to ensure “a more level playing field for undertakings operating in the internal market and to improve the conditions for consumers to exercise the rights they derive from the internal market (…) and to reduce the differences between the Member States as to the national rules governing actions for damages for [competition law infringements]” (recital 9 PDD).

    5. The subject-matter and scope of the PDD are addressed in Article 1 PDD. Article 1(1) PDD is the central provision. The provision relies on certain defined terms and familiar competition law concepts. This triggers the immediate question whether these concepts must, for the purposes of private enforcement under the PDD, be given the same meaning as in the public enforcement of competition law.

  • Chapter III - Effect of National Decisions, Limitation Periods, Joint and Several Liability

  • Edited by Wijckmans Frank
  • Visser Maaike, Jaques Sarah, Noël Evi
  • Book:
    The EU Private Damages Directive - Practical Insights
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    15 March 2016, pp 47-58

  • Summary

    GENERAL CONTEXT

    147. Chapter III PDD introduces measures aimed at assisting injured parties to claim and obtain full compensation for the harm suffered due to a competition law infringement. The relevant provisions are Articles 9–11 PDD.

    148. Article 9 PDD establishes the effect of final infringement decisions adopted by NCAs or national review courts in the framework of subsequent actions for damages before national courts. The following definitions in Article 2 PDD are relevant for the purposes of this provision:

  • – An “infringement decision “ means “a decision of a competition authority or review court that finds an infringement of competition law” (Article 2(11) PDD).

  • – A “final infringement decision “ means “an infringement decision that cannot be, or that can no longer be, appealed by ordinary means” (Article 2(12) PDD).

  • – An “NCA “ is defined as “an authority designated by a Member State pursuant to Article 35 of Regulation (EC) No 1/2003, as being responsible for the application of Articles 101 and 102 TFEU” (Article 2(7) PDD).

  • – A “review court “ is defined as “a national court that is empowered by ordinary means of appeal to review decisions of a national competition authority or to review judgments pronouncing on those decisions, irrespective of whether that court itself has the power to find an infringement of competition law” (Article 2(10) PDD).

  • – A “national court “ means “a court or tribunal of a Member State within the meaning of Article 267 TFEU” (Article 2(9) PDD).

    • 149. Article 10 PDD sets minimum requirements for Member States with regard to limitation periods for bringing actions for damages.

    150. Article 11 PDD establishes the principle of joint and several liability, allowing an injured party to require compensation from any of the infringing undertakings until it has received full compensation. The principle of joint and several liability may cause an infringing undertaking to contribute more than its share in the harm. Article 11 PDD therefore also addresses the right to obtain contribution from co-infringing undertakings.