Antitrust damages actions: recent developments
Charlotte Leskinen
May 13, 2009
On March 26, the European Parliament adopted a resolution on the Commission White Paper on damages actions for breach of the EC antitrust rules. In general, the Parliament is favorable to the Commission’s proposals on enhancing private enforcement of EC competition law, but stresses that any Community measure “must not lead to arbitrary or unnecessary fragmentation of procedural national laws” and that the Commission should examine the possibilities of proceeding in a horizontal or integrated way. It also requests the Commission to identify a legal basis for the adoption of the proposed measures.
The question of legal basis is particularly interesting because the White Paper does not contain any reference to the legal basis on which the Commission intends to base the measures that it is proposing. In my opinion, the Commission could apply Article 83 EC as a legal basis in order to give effect to the principles laid down in Articles 81 and 82 EC since they are currently not effective enough. Taking into consideration that the ECJ has held that a Community law right to damages exists for harm suffered as a result of an infringement of the EC antitrust rules and that Article 81 and 82 EC have direct effect, it would be important that all victims of an antitrust violation could enforce their rights stemming from the Treaty in the same manner regardless of in which Member State they are domiciled. The uniform and efficient application the EC antitrust rules would thus justify the adoption of common Community procedural rules.
However, the existence of a legal basis is debated. For instance, Klaus-Heiner Lehne, who was the rapporteur of the report of the Committee on Economic and Monetary Affairs on the White Paper on damages actions for breach of the EC antitrust rules, claims that the Commission cannot base its proposals in the area of national damages and procedural law on Article 83 EC and that it must be examined whether Article 65 or 95 EC could be applied. Personally, I think that Article 65 EC could also be contemplated as a legal basis, in particular, if the Commission were to adopt common collective redress mechanisms for different fields of law, but it has the inconvenience that due to the special position of the UK, Ireland and Denmark the measures adopted would not apply to these three Member States unless they opt in. Moreover, the Parliament states in its resolution that although the Commission should try to take a horizontal or integrated approach, this must not delay or impede the measures necessary to enhance the full enforcement of the EC antitrust rules. Consequently, it would be possible to take measures on the basis of Article 83 EC that would only apply to antitrust damages actions, provided that they would be compatible with possible horizontal measures to be taken later.
Unfortunately, both the Commission and the Parliament are reluctant to contemplate the introduction of opt-out collective actions brought by individuals (i.e. collective actions that may also be brought on behalf of unidentified affected group members) in any situation, but advocates that only a clearly delimited group of people should be eligible to participate in collective redress actions. This undermines the chances of effectively bringing a collective action in cases involving small individual claims but where the gains of the infringers could nevertheless be considerable. The requirement that all victims must be identified in advance and must decide expressly to join the action entails a big risk of the group of claimants being too small for the action to pay off. For instance, in the collective action brought in the French mobile cartel case, where three French mobile phone operators had fixed prices and shared the market, potentially there would have been 20 million group members but only around 12.500 decided to join the action. One can only speculate about the amount of money illegally gained by the mobile operators that was never claimed…
The Parliament is also insisting that it be involved in any legislative initiative in the area of collective redress since it wishes to make sure that the Commission proceeds in a horizontal or integrated way, although it admits that this does not necessarily require that legislative measures be introduced with a single horizontal instrument.
The next step is likely to be the elaboration of a Community legislative act, probably a directive, in which the Commission will specify the legal basis of the measures to be taken and define the objectives that Member States are to attain with regard to antitrust damages actions, so interesting times are ahead.
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