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Member states warned over delay in adoption of cartel-damages law

The European Commission has sent letters of formal notice to member states that failed to fully transpose a law on cartel damages by the deadline of 27 December 2016.16 Feb 2017

Only nine EU countries have fully transposed the directive on antitrust damages actions, the Commission said: Denmark, Finland, Hungary, Italy, Lithuania, Luxembourg, the Netherlands, Slovakia and Sweden.

The directive was adopted in November 2014 to help individuals and companies claim damages if they become victims of infringements of EU antitrust rules. The Commission said at the time that the Court of Justice of the EU has acknowledged the right for victims of antitrust infringements to be compensated for the harm suffered. However, "due to national procedural obstacles and legal uncertainty, only few victims currently obtain compensation".

The directive removes obstacles to compensation for victims of EU antitrust law, the Commission said, and applies to all antitrust damages actions in the member states.

Parties will have easier access to the evidence they need in actions for damages. If a party needs documents that are in the hands of other parties or third parties, it will be able to obtain a court order for the disclosure of those documents, the Commission said.

Disclosure of categories of evidence, "described as precisely and narrowly as possible", will also be allowed. Judges will be expected to ensure that disclosure orders are proportionate and that confidential information is protected, it said.

The final infringement decision of a national competition authority will count as full proof before civil courts in the member state where the infringement occurred, and "at least prima facie evidence" before courts in other member states, the Commission said.

Victims will have at least five years to bring damages claims, starting from the moment when they had the possibility to discover that they suffered harm. This period will be suspended or interrupted if a competition authority starts infringement proceedings, so that victims can decide to wait until the public proceedings are over. Once an infringement decision becomes final, victims will have at least one year to bring damages actions.

The directive also covers 'passing on'. The direct customers of an infringer sometimes offset the increased price they paid by raising the prices they charge to their own, indirect customers. The infringer can reduce the compensation it pays to its own customers by the amount they passed on to the indirect customers, but compensation for that amount is in fact owed to the indirect customers, the Commission said.

"Since it is difficult for indirect customers to prove that they suffered this pass-on, the directive facilitates their claims by establishing a rebuttable presumption that they suffered some level of overcharge harm, to be estimated by the judge," it said.

Victims' compensation should cover all of their losses, including their actual loss, loss of profit and loss of interest.

The directive also established a rebuttable presumption that all cartels cause harm, the Commission said, to counter the difficulties that victims often suffer in proving the harm that was done to them.

"The presumption is based on the finding that more than 90% of cartels cause a price increase. In the very rare cases where a cartel does not cause price increases, infringers can still prove that their cartel did not cause harm," it said.

All participants in a cartel are considered liable for all victims, except those who are given immunity from fines because they have cooperated with the investigation, and smaller businesses who would go bankrupt as a result, the Commission said.

Many member states are in the final stages of transposing the directive, and the Commission will monitor this closely to ensure that the new rules are in place across the EU as soon as possible, it said.

The directive also needs to be transposed in EEA EFTA states Iceland, Liechtenstein and Norway, the Commission said.