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Filip Kubik European Commission, DG Competition Brno, 12 November 2008 PowerPoint Presentation
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Filip Kubik European Commission, DG Competition Brno, 12 November 2008

Filip Kubik European Commission, DG Competition Brno, 12 November 2008

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Filip Kubik European Commission, DG Competition Brno, 12 November 2008

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  1. White Paper on Damages Actions for Breach of Articles 81 and 82 EC Filip Kubik European Commission, DG Competition Brno, 12 November 2008

  2. Background • ECJ in Courage v Crehan (2001): - full effectiveness of Article 81 requires thatany individual can claim damages • Ashurst study (2004): - astonishing diversity and total underdevelopment • Greenpaper (2005) • Whitepaper (April 2008)

  3. General approach • Compensation as primary objective • Effective legal framework for victims to exercise their rights under the Treaty • Preserving strong public enforcement • Balanced measures based on European legal cultures and traditions • Legal certainty and more level playing field

  4. Specific issues • Damages • Passing-on of overcharges • Standing: indirect purchasers and collective redress • Access to evidence: inter partes disclosure • Binding effect of NCA decisions • Fault requirement • Limitation periods • Costs of damages actions • Interaction between leniency programmes and actions for damages

  5. Indirect purchasers Objective: • To ensure compensation for all categories of victims (Courage 2001, Manfredi 2006) • Including indirect purchasers, i.e.: • victims further down the distribution chain→ need for rules on passing-on of overcharges • victims with scattered and small (individual) damage→ need for collective redress

  6. Passing-on Proposed measures: • To allow the passing-on defence while putting the burden on the defendant • To lighten the victim’s burden by a rebuttable presumption that the overcharge was entirely passed on • To avoid under- or over-compensation in case of joint, parallel or consecutive actions

  7. Collective redress Issues: • Follow-on or Stand-alone • Opt-in or Opt-out • Strict opt-in often does not work, e.g.: • Replica football shirts (Which?) • Mobile phone charges (Que Choisir) • Opt-out involves risks and is often viewed negatively in Europe (fear of US style class actions)

  8. Collective redress Proposed measures: • Opt-in collective action • combining individual damages claims into a single action • Representative action • brought by qualified entities on behalf of a group of victims

  9. Representative action Qualified entities: • designated in advance to bring representative actions • certified ad hoc to bring a representative action on behalf of its members in relation to a specific infringement Key issues: • criteria to be fulfilled by qualified entities • identified/identifiable victims • information obligation • right not to be represented • distribution of damages

  10. Access to Evidence Objective: • addressing the information asymmetry inherent in most antitrust cases • preventing that victims do not start, or do not win, a case simply because they had no access to the facts

  11. Access to evidence Proposed measures: • Inter partes disclosure based on fact-pleading and strict judicial control • Claimants must show a plausible case • Disclosure measure must be necessary and proportionate in scope • Effective sanctions for refusal to disclose or destruction of evidence

  12. After the White Paper • Public consultation until 15 July 2008 • over 170 submissions • Large agreement on • existence of obstacles to compensation • something needs to done • compensation as primary objective • need for balanced & European measures • Divergent views on • features of specific measures • who should tackle the issues • Follow-up & timing