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09.03.2009

EP Consolidated Draft Report on White Paper on Antitrust Damages Actions

The European parliament (EP) published a consolidated version of the draft report by Klaus-Heiner Lehne, MEP (EPP-ED), incorporating the compromise amendments tabled by EPP-ED, PES and ALDE as endorsed by the ECON Committee on 2 March. This draft contains the following important elements:

- Consideration should be given as to whether a horizontal or integrated pproach should be chosen for damages claims. The Commission should refrain, in the meantime, from presenting any collective redress mechanism for ntitrust infringements without allowing Parliament to participate in their doption in the codecision procedure (point 5);
- A horizontal approach could cover collective redress procedural rules, but his approach must not delay or avoid the development of proposals and easures identified as necessary for the full enforcement of EC competition aw (point 6);
- Moving forward rapidly and proposing sector-specific rules with regard to antitrust damages actions is justified by the more advanced framework of competition (point 6);
- A legal basis needs to be identified. The principle of subsidiarity has
to be taken into account if the legal basis does not make the proposal fall
with the exclusive competence of the Community (e.g. article 82 EC) (recital
J and point 2 and 5);
- Any EU proposal on collective redress should accompany, and not replace, other mechanisms already existing in some Member States, such as representative actions and test cases (recital E);
- It is important not to neglect public enforcement and ensure that competition authorities have adequate means to prosecute infringements (recital H);
- Damages actions are only one element of an effective system and ADRs are an efficient alternative to collective redress that should be encouraged (recital C);
- Punitive damages must be avoided (recital F, point 10);
- Identification of individuals taking part to collective claims should be required (point 10);
- Compensation must be paid to the identified group of people. The representative entity may only be compensated for the costs incurred and may not be a nominee for receipt of damages (point 10);
- There should be no reversal or lightening of the burden of proof, unless national laws provide so or loosen disclosure rules (sic, point 12);
- Passing on defence has its merits, provided that the claimant can bring evidence to its case (point 18);
- Rules on allocation of costs must be left to Member States (point 20);
- Full immunity of successful leniency applicants from civil liability is rejected (point 21).

The draft report will be adopted during the EP-Strasbourg plenary session on 23 - 26 March.