The EU Council Adopted a Directive in Antitrust Damages Actions

The European Council of Ministers has recently adopted the Directive on Antitrust Damages Actions that will help victims of antitrust infringements of EU antitrust law, such as cartels and abuse of dominant market position. The Directive has the object of achieving a more effective enforcement of the EU antitrust rules in all Member States.

The EU Court of Justice has acknowledged the right for victims of antitrust infringements to be compensated for the harm suffered. National procedural obstacles and legal uncertainty have been seen as the main reason, why only few victims of antitrust infringements currently obtain compensation. Damages actions are being regulated by national rules, which vary from one country to another. As a result, the victims’ opportunities to obtain compensation depend on which Member State they happen to live in. The Directive now includes several improvements to secure the rights of victims to gain compensation for the harm caused by an antitrust infringement.

The Directive is based on the principal of full compensation: anyone who has suffered harm caused by an antitrust infringement can claim compensation for actual loss and for loss of profit, plus the payment of interest. National competition authority’s finding that there has been an infringement of competition rules will automatically constitute proof of that infringement before courts of the same Member State in which the infringement occurred. Also, the finding of a cartel creates a strong presumption that the victim has suffered harm. Therefore, the victims of a cartel have to demonstrate only the amount of damages not that the damage itself existed once the competition authority has established the existence of a cartel.

The Directive will give victims, such as citizens and companies, easier access to evidence they need to prove the damage suffered and more time to make their claims. The limitation periods for bringing actions for damages are at least five years. Victims have at least one year to claim damages starting from the moment that the infringement decision by a competition authority has become final. If an infringement has caused price increases and these have been passed on along the distribution chain, those who suffered the harm in the end will be entitled to claim compensation as well. Moreover, national courts can order companies to disclose evidence when victims claim compensation. The courts are however to make sure that confidential information is duly protected.

Member States now have two years to implement the Directive in their legal systems. The Ministry of Employment and Economy is responsible for preparing legislative changes to the Finnish Competition Act.