European proposals on competition law damages

DG Competition consultation (12 pages, PDF plus 99 pages, PDF and 67 pages, PDF) on proposals to introduce additional procedures for victims of breaches of competition law to obtain compensatory damages.

Proposals for representative actions by “qualified entities” look similar to what is in place in the UK under the Enterprise Act 2002. There would also be an opt-in collective action without the need to involve a representative body.

On passing-on, the paper proposes that:

Defendants should be entitled to invoke the passing-on defence against a claim for compensation of the overcharge. The standard of proof for this defence should be not lower than the standard imposed on the claimant to prove the damage.

Indirect purchasers should be able to rely on the rebuttable presumption that the illegal overcharge was passed on to them in its entirety.

On leniency in cartel cases, the paper proposes that applications for leniency would be privileged, and suggests that the liability of infringers who benefit from leniency might be limited to their own (direct and indirect) customers.

A 671-page report (5.5M PDF) by various academics discusses costs and benefits of various options that had been considered by the Commission.

Accepted proposals would be implemented through a combination of EC directives and EC regulations.

Responses by Tuesday 15 July 2008.

For further information or advice please contact Franck Latrémolière.

Filed under Article 81, Article 82, DG Competition.

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