Compensation [EU]
Compensation
The European Union (EU) has adopted rules allowing companies to receive full compensation for actual losses and lost profits that they suffer as a result of a cartel in their sector. Although Articles 101 and 102 of the Treaty on the Functioning of the European Union guarantee the right to full compensation, until now, its practical exercise has been difficult.
The European Union (EU) has adopted rules allowing companies to receive full compensation for actual losses and lost profits that they suffer as a result of a cartel in their sector. Although Articles 101 and 102 of the Treaty on the Functioning of the European Union guarantee the right to full compensation, until now, its practical exercise has been difficult.
It lays down new rules allowing firms that are victims of cartel or antitrust violations to be compensated for damages. It also seeks to make leniency programmes more efficient (i.e. cases where firms that admit their involvement in a cartel or abuses of dominant market positions pay a reduced fine or are given immunity).
Particulars
Disclosure of evidence:EU countries must ensure that their national courts can order firms to disclose evidence when victims claim compensation. Confidential business information must be protected.
Claims: victims must be allowed at least 5 years to claim damages following the competition authority’s final decision on the infringement.
Proof of infringement: the national competition authority’s final decision on an infringement automatically constitutes proof of that infringement before the courts of the EU country in which the infringement took place.
Passing-on of overcharges: any company, whether a direct or indirect purchaser, that has suffered harm may claim compensation. The claimant carries burden of proof for a passing-on of an overcharge.
Liability: where several firms infringe the competition rules together, they are held jointly and severally liable for the entire damage. A firm that co-infringes has the right to obtain a contribution from other co-infringers if it has paid more compensation than its share. That share and the criteria on which it is based (such as turnover, market share or role in the cartel) must be decided by the court according to national law.
Effect of national decisions: final national decisions on infringements can be presented as evidence before another EU country’s national courts, in accordance with that country’s laws. This strengthens the position of victims when claiming for damages.
It entered into force on 25 December 2014 and should be transposed into national law by 27 December 2016.