In the U.S., private antitrust enforcement plays a large role in the general enforcement scheme of the antitrust laws. Companies that plead guilty or are convicted of price-fixing generally pay fines but not restitution to victims—private litigation is assumed to be sufficient to compensate victims. The threat of treble damages in private actions (both individual and class actions) is significant, and often aggrieved parties can win more in damages than the government is able to recover and fine. And the chance to “detreble” damages by cooperating with plaintiffs can play a large role in a company’s decision to participate in the Antitrust Division’s leniency program.

The effects of such private suits are blunted in the European Union.

Under EU competition law, individual businesses and consumers that suffer harm have the right to file for damages in a national court. The European Court of Justice (ECJ) has even emphasized that these types of suits are an integral part of the EU’s antitrust scheme. Without a right for private damages claims, the practical effects of the EU’s laws prohibiting anticompetitive conduct “would be put at risk,” the court said in a 2001 opinion in Courage Ltd. v Bernard Crehan, a U.K. case. “Indeed,” the court continued, “the existence of such a right strengthens the working of the Community competition rules and discourages agreements or practices, which are frequently covert, which are liable to restrict or distort competition.”

Outside of the U.K., however, most EU member states’ legal frameworks make it “excessively costly and difficult” for victims of schemes to bring actions and obtain redress, the European Commission (EC) said in a June memo.

The EC issued a draft directive on June 11 with the stated twin goals of optimizing the interaction between the public and private enforcement of competition law and ensuring that the victims of anticompetitive schemes can obtain compensation for harm. While treble damages and class certifications aren’t part of the private antitrust scheme in the EU, the directive could make it far easier for parties to collect damages for harm they suffered as a result of antitrust violations. Private antitrust claims are relatively common in the U.K. and, increasingly, in Germany and the Netherlands. If the draft directive is implemented, private antitrust litigation will become more likely across the EU.

“You’re going to start seeing more and more of these large damages suits in Europe—just like here in the U.S., the plaintiffs bar is going to be incentivized to bring them,” says Timothy Cornell, counsel at Clifford Chance in Washington, D.C.

Obstacles and Shortcomings

As far back as in 2005, the EC has identified in numerous reports six main obstacles in antitrust damages actions. Attempts to adapt the system to remove such obstacles date back nearly a decade. All of the obstacles still exist today in most member states, the June proposal asserts. As the proposal outlines, they relate to the following six areas: obtaining the evidence needed to prove a case; the lack of effective collective redress mechanisms; the absence of clear rules on the “passing-on” defense to antitrust claims; the absence of a clear probative value of national competition authority decisions; the possibility to bring an action for damages after a competition authority has found an infringement; and how to quantify antitrust harm.

Additionally, national rules governing private antitrust actions vary widely among the member states, which causes legal uncertainty and can lead to “ineffective private enforcement of the competition rules, especially in cross-border cases,” the proposal says.

Many of the new measures are therefore aimed at addressing the obstacles that still exist in most member states’ legal frameworks and at harmonizing rules and standards across the member states.

For instance, a key measure of the draft directive would give parties in private antitrust actions easier access to evidence—most member states lack clear rules on disclosures in proceedings in national courts. Under the proposal, parties would be able to obtain a court order for specific documents a party needs to prove either its claim or a defense and that might be in the custody of other parties or third parties.

 “Currently, if a potential claimant has a large damages claim against companies alleged to be involved in an illegal price-fixing cartel, it will often seek to anchor jurisdiction in the U.K., the only jurisdiction that allows significant discovery—although it is still much more limited than U.S. discovery,” says Valarie Williams, a partner at Alston & Bird. The measure would thus make it easier for claimants to bring more cases in member states other than the United Kingdom.

The directive would limit disclosure of certain types of evidence held by competition authorities, such as corporate leniency statements and settlement proposals. Other information could be disclosed at certain times, however, such as responses to information requests and the EC’s charge sheet.

Williams says balancing the protection of certain documents and the availability of evidence to parties to civil actions remains a contentious area around which she expects “considerable litigation” if the draft directive is implemented.

Full Proof

Another measure would give probative effect to infringement findings by national competition authorities—in other words, national findings of infringement would constitute “full proof” before civil courts rule that infringements had occurred, as EC antitrust decisions already do.

The directive also establishes that victims have five years to bring a claim starting at the moment they become aware of the infringement, the harm it caused and the identity of the infringer(s). If a competition authority opens an investigation into an infringement, the limitation period is suspended until at least one year after the authority issues a final decision or the proceedings are otherwise terminated, which gives victims a chance to wait until the end of the public proceedings to bring a claim.

Under the proposal, victims can obtain full compensation for the loss they suffered and also for lost profits. The directive also establishes the presumption that cartels cause harm—an idea that can help victims facing difficulties in quantifying their total harm. Further, the directive establishes that any participant to an antitrust infringement should be responsible for the whole harm caused to the victims by the infringement. An infringer would have the chance to obtain from other participants a contribution toward their share of responsibility. (To preserve the incentive for cooperation with competition authorities, this measure wouldn’t apply where infringers cooperated in return for immunity from fines. Cooperating companies would only need to compensate their own purchasers.)

Another key measure looks at the “passing on” of harm—the idea that when a customer of an infringer has to pay increased prices, that customer will pass on such higher costs to their own customers, or indirect customers of the infringer. The proposal attempts to facilitate claims from indirect customers by introducing for them a presumption of harm in certain scenarios. The pass-on defense would generally still exist.

Measured Measures

If the European Parliament and Council approve the draft directive, its implementation will effect great change in the way some member states handle private antitrust actions. However, the changes have been debated for nearly a decade, and stakeholders have had a chance to weigh in on them. Perhaps as a result, they are measured. For example, while the EC has introduced a recommendation to allow collective actions on an opt-in basis only, it is a non-binding complement to the proposed directive. (The U.K. is one of a few member states to begin introducing opt-out class actions.)

“The EC is trying to balance its desire for restitution for victims with a reluctance to encourage what they and most Europeans consider the excesses of U.S.-style litigation,” Williams says. “With this draft directive, the EC seems to have erred on the side of taking a fairly conservative step toward its stated objective of providing recourse for companies who want to pursue such claims.”