European Commission - White Paper: Damages Actions for Breach of the EC Antitrust Rules

This contribution represents the comments of the Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich (Germany), on the DG Competition White Paper of April 2008 on damages actions for breach of the EC antitrust rules. The White Paper forms part of the European Commission’s strategy of enhancing private enforcement of European competition law through damage claims. The White Paper was preceded by several comparative reports and a by Green Paper. It is likely that it will form the basis for future policy instruments in the field of private enforcement. The present contribution discusses some recurring issues of private antitrust enforcement in Europe. It proceeds to analyse eight specific legal issues that the White Paper had put forward for public comment: standing of indirect purchasers and collective redress; access to evidence; binding effect, across Member States’ borders, of decisions adopted by national competition authorities; the fault requirement as a prerequisite to civil liability; definition and quantification of damages; the passing-on defence; limitation periods; costs of damages actions; and, finally, the interaction between leniency programs and actions for damages. The paper advocates excluding the passing-on defence, and instead implementing a separate mechanism for dividing the overcharge between purchasers on different levels of the distribution chain. Overall, we welcome the proposal to give private damage claims a more prominent role as an instrument for enforcing the competition rules in Europe. Nevertheless, the enforcement of the widely harmonised European competition rules by means of national rules on civil procedure might create tensions with traditional legal principles in some Member States.