THE ANTITRUST DAMAGES DIRECTIVE : THE EUROPEAN COMMISSION OVERVIEW
Filip Kubik (DG COMP)
Filip Kubik presented the Antitrust Damages Directive which is expected to be finally approved by the EU Council of Ministers soon. A politically agreed text of the Directive has already been adopted by the European Parliament. The Damages Directive aims to give victims of competition law infringements better access to compensation and optimise the interplay of private actions with public enforcement. In theory, anyone who suffers harm due to an infringement of the competition rules has a right to full compensation, and the Directive will introduce six key measures to facilitate this, from easier access to evidence to giving Member States’ national courts the power to estimate the level of harm. Article 5 of the Directive specifically deals with the disclosure of evidence, giving courts the right to order parties to disclose specified pieces or relevant categories of evidence. To protect the effectiveness of public enforcement, Article 6 prevents national courts from being able to order a party or a third party to disclose leniency statements and settlement submissions. Kubik further explained that whereas co-infringers will be jointly and severally liable under the Directive, Article 11 provides that immunity recipients will normally be jointly and severally liable only to their direct and indirect customers (other victims, however, can claim damages from immunity recipients if full compensation cannot be obtained from other infringers). Whereas fines are meant to deter, the Directive is purely focused on victims’ compensation. Kubik reflected, however, that if private enforcement becomes effective in Europe, it will ultimately also have a deterrent effect.