How the major EU jurisdictions are doing in introducing enhanced rights for victims of anti-competitive behaviour

As we reported in January, many Member States missed the 27 December 2016 deadline to implement the Damages Directive, which harmonises the rules on “follow-on damages” claims (we understand the European Commission has recently begun to chase up the laggards by sending out a “letter of formal notice”).  Osborne Clarke’s experts from around Europe round up the latest state of play in their jurisdictions below, looking at:

• The current status of follow-on claims: whether the Directive has been implemented yet and, if not, the basis on which follow-on claims can currently be brought;
• The scope of the implementing legislation: whether it can be used just in relation to decisions by the European Commission (or the European courts, where such decision is appealed), and “local” national competition authorities, or also the decisions of those in other Member States; and
• Whether the implementing legislation will bring any changes over and above those required by the Directive.

Belgium (not yet in force)       

Status of competition damages claims and implementation of the Directive

Currently: Follow-on damages claims can be brought, based on art. 1382 of the Belgian Civil Code, which requires a direct causal link between the fault and the damage. Belgian cases have often struggled to meet the causal link criterion.

Implementation: There have been consultation rounds about a preliminary draft bill, but the final draft is still to be submitted to the Council of Ministers before being submitted to the Parliament.

It is expected that the transposing draft bill will be submitted to Parliament in the spring of 2017.  The bill has not yet been published, but the Belgian Commission for Competition has produced its report on the draft.

Which decisions can be used to bring a claim?

The report indicates the current draft bill follows the minimum requirement under the Damages Directive, in that:

• decisions by the European Commission, the Belgian Competition Authority or the Brussels Court of Appeal constitute irrefutable proof of a competition law infringement;
• decisions by other national competition authorities will constitute “prima facie” evidence of a competition law infringement, but will not be binding.

Any additional comments / changes to the regime?

The Commission notes the lack of clarity in the exact content of the rules pertaining to:

• obtaining evidence by consumers;
• the confidentiality of certain types of evidence; and
• the calculation of the amount of “pass-on” for the passing-on defence (the European Commission is required to provide further guidance to the Member States, which has not been done yet).

The Commission has asked the legislator to provide more detail.

The draft bill also includes the addition of follow-on damages claims as a ground for “class actions”.

France (not yet in force)

Status of competition damages claims and implementation of the Directive

Currently: France does not have an established follow-on damages regime, but follow-on claims may be brought, based on article 1382 of the French Civil Code (tort law).

Implementation: The government has issued a draft regulation to modify the Code of Commerce to implement the Directive.  This draft has been subject to a consultation.  The draft has been transmitted to the Council of State for legal assessment.  If the Council issues a favourable opinion the regulation will need to be published in the French Official Journal before coming into effect.  We therefore do not expect the Directive to be implemented for a number of months.  

Which decisions can be used to bring a claim?

The draft regulation follows the minimum requirement under the Damages Directive (see “Belgium” above).

The draft regulation also extends the irrefutable proof of infringement (and the rebuttable presumption of damage) beyond infringements of EU competition law, to infringements that are specific to French competition law (such as abuse of economic dependency, exclusivities in overseas territories and abusively low prices).

Any additional comments / changes to the regime?

The reinforcement of the judge’s power to order the production of documents in the new law will make the use of documents from a case handled by the French Competition Authority to evidence a claim for damages much easier than at present.

Germany (not yet fully in force)

Status of competition damages claims and implementation of the Directive

Currently: Germany is among the more popular jurisdictions for follow-on damages litigation in the EU.  Examples include actions against the members of the international air cargo, the European bleaching chemicals and the German food cartels.

Implementation: The federal government has proposed draft legislation  and the parliamentary hearings will likely conclude in Q1 2017 so that the new regime will likely take effect in Q2 2017.

Which decisions can be used to bring a claim?

Decisions of the European Commission, the German competition authority and national competition authorities of other EU member states already have binding effect on a German court seised with a follow-on damages action.

In this respect German law already goes beyond what the Directive requires.

Any additional comments / changes to the regime?

Information on the cartel to support a follow-on claim could previously be obtained through access to the files of the competition authority.  This will shift to a pre-trial discovery process handled by the courts.

Italy (in force)

Status of competition damages claims and implementation of the Directive

Currently: Italy already has an established competition damages regime.

Implementation: The implementing legislation came into force on 14 January 2017.

Which decisions can be used to bring a claim?

The draft regulation follows the minimum requirement under the Damages Directive (see “Belgium” above).

Any additional comments / changes to the regime?

The legislative decree expressly includes class actions in the scope of the application of the new rules.

It is also worth noting that actions for damages can be brought only before the specialised sections of the courts of Milan, Rome and Naples.  The Court of Milan has been involved in many important damages cases in the past and has therefore developed a significant expertise in this area.

The draft legislation also modifies the general competition law regime, expressly providing the power of the national competition authority to apply articles 101 and 102 of TFEU in parallel with the corresponding national rules (respectively, articles 2 and 3 of law 287/90).

Netherlands (in force)

Status of competition damages claims and implementation of the Directive

Currently: The Netherlands is a popular jurisdiction for follow-on claims, with pending cases including those stemming from EU Decisions on Elevators and Escalators; Air Cargo; Paraffin Wax; Beer; Bitumen; and Cathode Ray Tubes.

Implementation: The new rules (found here) came into force on 10 February 2017.

Spain (not yet in force)

Status of competition damages claims and implementation of the Directive

Currently: at present follow-on claims must be brought on the basis of a non-contractual action according to Article 1902 of the Spanish Civil Code.

Implementation: The Commission of Legislation has drafted a proposal of law to implement the Damages Directive.

There is no date foreseen for the draft to be discussed and voted on by Congress and Senate.

Which decisions can be used to bring a claim?

In addition to the Directive’s minimum requirements (see “Belgium”), the draft proposes that the court that tries the action will also be bound by the decision of a national authority of competence of any Member State or judicial authority that has jurisdiction, which states the infringement of the competence.

UK (England and Wales) (not yet fully in force)

Status of competition damages claims and implementation of the Directive

Currently: England and Wales already has an established and widely-used damages regime.

Implementation: The government has published a draft statutory instrument which is awaiting approval by the relevant parliamentary committee.

Scope: which decisions can be used to bring a claim?

The UK courts already accept both UK and EU decisions as proof of liability in follow-on claims.  The draft legislation will introduce the new directive requirement for the decisions of other Member States’ national competition authorities to be prima facie evidence of liability.

Any additional changes to the regime?

Following the consultation process on implementing the Directive (which we reported in February 2016), it was decided not to follow the “copy-out” approach’, as originally envisaged.  The Government decided, instead, only to legislate in those areas where it believed there were not already sufficient provisions in the UK legislation or common law.

This will include minor changes to the disclosure process which will slightly narrow the current common law position.

What’s next?

There is still some way to go to bring national rules into force across the EU.  It is therefore still too early to tell whether the Directive will achieve its aim of encouraging more follow-on claims by cartel victims, or whether the claims that are brought will continue to be concentrated in the jurisdictions that have traditionally been more popular for this type of claim.  Even in those jurisdictions where the Directive has been implemented, there may need to be a culture shift before the new and enhanced rules are fully effective.

You can also see the full list of EU Member States that have implemented the directive on the Commission’s website.  We will continue to monitor the situation and report on the Directive’s implementation and impact in future articles.