The Commission’s Draft Directive on Damages: an end in sight?

The harmonisation of member states’ damages laws relating to EU competition law, and increasing the ease with which such actions can be brought, have long been on the European Commission’s agenda. At present, competition law infringements result in private actions for damages in only 25 per cent of cases and these are concentrated in the UK, Germany and the Netherlands. Previous Commission studies identified a number of specific obstacles to successful actions including an inability to obtain the evidence needed to prove a case, the lack of effective collective redress mechanisms and the absence of a clear probative value of National Competition Authority (NCA) decisions. In addition, the Commission found that national legal rules governing antitrust damages actions are diverse and that such diversity was growing.

In June 2013, the Commission published a draft directive on damages actions for breaches of EU competition law (2013/0185 [COD]). Commissioner Almunia actively sought the involvement of European Parliament in the legislative process by asserting a dual legal basis for the draft directive under articles 103 and 114 of the Treaty on the Functioning of the EU (TFEU) (which addresses competition law and the establishment and functioning of the internal market respectively). However, lawyers working for the Council of the EU (also involved in the legislative process) have questioned the legal basis of the directive as it relates only to competition policy and they consider therefore that Parliament should not play a formal role in the legislative process. Following discussions in the Permanent Representative Committee, it has been decided to retain the dual legal basis. However, there remain concerns that a challenge to the legal basis of the directive could still materialise after the text has been approved.

In addition to the above procedural issue, Parliament and the Council have proposed significant reforms to the Commission’s draft. In December 2013, the Council published its ‘general approach’, which will form the basis for subsequent discussions between lawmakers…

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