On 11 June 2013, the European Commission published a proposal for a directive for competition law infringements (the "Directive"). The Directive intends to streamline damages actions across the Member States, given the current uncertainty and lack of uniformity, according to the European Commission. The following summarizes the main provisions in the proposed Directive.
Disclosure of evidence: The Directive proposes three categories for the treatment of evidence under a request for disclosure. First, the disclosure of evidence that will be granted absolute protection can never be ordered for an action for damages. This evidence includes the leniency corporate statements and the settlement submissions. Second, the evidence under temporary protection can only be disclosed after the competition authority has closed its proceedings. This category encompasses documents that parties and the competition authorities have prepared for the enforcement proceedings. In the third category falls all other evidence that is not in the previous two categories. The proposed Directive seeks to allow the evidence in the third category to be disclosed at any moment in time, subject to a number of restrictions that will, for example, prevent the thwarting of on-going investigations. The Directive proposes setting sanctions for parties that destroy evidence or refuse to comply with disclosure. The national courts will determine the appropriate sanctions such as the ability to draw adverse inferences.
Probative value of national decisions: The Directive will give probative value to decisions by national competition authorities or review courts in order to facilitate a subsequent action for damages. This probative value is already given to the final decisions of the Commission and the judgements of the Courts of the Union.
Limitation periods: The Directive imposes a minimum period in which an action can be brought to five years after the victim can reasonably be expected to have knowledge of the behaviour constituting the infringement, the harm and the identity of the infringer. In addition, the limitation period will be suspended for the duration of an investigation and appeal, and for one year thereafter.
Joint and several liability: The Commission intends to limit the liability for immunity applicants. The liability will be reduced to the damage caused to direct or indirect customers of the immunity applicant. However, the immunity applicant will remain a "last resort debtor" and may be held fully liable if the injured party will not be able to obtain full compensation from other infringers.
Passing-on of overcharges: If the claimant is a direct customer who has passed on charges to the indirect customers, then those charges will not be included in the calculation of actual loss under this Directive. This "passing-on defence" should be a valid defence according to the Commission, with the burden of proof placed on the defendant. However, if it is "legally impossible" for indirect customers to claim damages, passing-on is not a valid defence under this proposal. In actions of indirect customers, the burden of proof that overcharges have been passed-on is on the indirect customer. Nevertheless, the Commission proposes a presumption that overcharges have been passed on if certain conditions are met. Courts should take account of claims by other parties in the distribution chain to prevent overcompensation and may stay the proceedings to this effect.
Quantification of harm: The Directive proposes establishing a rebuttable presumption that harm was caused by the infringer's actions. It will then be up to the defendant to prove that there was no harm caused by the infringement.
Consensual dispute resolution: The Directive proposes a suspension of limitation periods during the consensual dispute resolution negotiations and a reduction of liability for the settling infringer to the actual "share of the harm" it caused. However, this reduction of liability will become unavailable if the victim is unable to recover full damages from the other non-settling co-infringers.
The proposed Directive is a draft; it may undergo substantial changes in the legislative and adoption processes, which could take another eighteen months. Once the final text is approved, Member States will have up to two years to implement its provisions.
