Today's sign-off from the national governments in the EU is the final substantive step towards adoption by the EU of legislation on antitrust damages actions. The main elements include:
- National courts can order companies to disclose evidence when victims claim compensation. The courts will ensure that such disclosure orders are proportionate and that confidential information is duly protected.
- A final decision of a national competition authority or the European Commission will automatically constitute proof of an infringement before the National courts.
- Victims will have at least one year to claim damages once an 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.
- Consensual settlements between victims and infringing companies will be made easier by clarifying their interplay with court actions. This will allow a faster and less costly resolution of disputes.
- National courts are empowered to estimate the amount of harm suffered where it is excessively difficult to do so.
The legislation still needs to be adopted by the EU Parliament, which will be a formality and will then enter into force 20 days after its publication in the Official Journal of the EU. The legislation is a Directive, meaning each Member State will have two years to implement the provisions set-out in the Directive into domestic law.
Mayer Brown will be issuing commentaries on different aspects of the Directive in the coming months, addressing details of the Directive and its practical consequences for potential litigants, including the inter-play between this development and private damages actions in the United States and elsewhere.