However, until very recently very few claims for damages have been brought. In addition, although the right to claim damages is universal, the procedures in Member States for doing so vary widely. The European Commission wishes to see more damages claims to support the enforcement of competition law. It wishes to remove any obstacles in the way of bringing claims and to create a greater degree of uniformity across the EU. The Commission, therefore, published in December 2005 a Green Paper setting out for consultation various options for reform of private antitrust damages claims.
The Commission recognises that neither it nor the competition authorities of Member States have sufficient resources to investigate any but the most significant infringements of competition law. This is a significant weakness in the current enforcement regime. The Commission intends that in the future damages claims brought in national courts by businesses and consumers will help fill this gap by playing an important enforcement role and will act as a deterrent to infringers. If this approach is to be successful, the Commission has to encourage many more damages claims. In particular, it must encourage "stand alone" claims that do not rely on a prior infringement decision of a competition authority. The Green Paper identifies the main obstacles currently deterring claimants in the various different jurisdictions of the EU from bringing claims. It then sets out a range of policy options, each aimed at overcoming these obstacles and encouraging more claims.
Many of the options for reform outlined in the Green Paper (for example allowing the recovery of double damages and reversing the burden of proof in some instances) would involve far reaching changes in procedural and substantive law of Member States. Reform will, therefore, take time and a good deal of political will on the part of Member States. The Green Paper is, however, an important and timely reminder to business that antitrust damages claims are possible now and are being made more frequently. Some of the options for reform in the Green Paper replicate the current position in England (eg wide disclosure obligations), showing that some European jurisdictions are more fertile ground for claims than others. Businesses operating in Europe need to assess now the opportunities and risks that antitrust damages claims represent. They should consider whether they have been a victim of any anti-competitive behaviour, and whether they may have a claim for damages. They should also consider whether their business practices taken in isolation or together with the activities of others could amount to an infringement. If this is possible, there may be steps they can take to minimise their exposure, both to public enforcement and private claims. Businesses, especially those operating in markets with particular competition compliance issues, should also consider the potential impact of some of the options for reform set out in the Green Paper.
Please click here to review the main options for reform.
If you would like to speak to someone about the risks and opportunities created by antitrust damages claims or the potential impact of these potential reforms please contact Susan Bright / Nicholas Heaton / Matthew Levitt, members of the Competition Dispute Resolution Team.
Contact information
Susan Bright
Nicholas Heaton
Matthew Levitt