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Filip Kubik European Commission, DG Competition Brno, 12 November 2008

White Paper on Damages Actions for Breach of Articles 81 and 82 EC. Filip Kubik European Commission, DG Competition Brno, 12 November 2008. Background. ECJ in Courage v Crehan (2001): - full effectiveness of Article 81 requires that any individual can claim damages Ashurst study (2004):

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Filip Kubik European Commission, DG Competition Brno, 12 November 2008

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  1. White Paper on Damages Actions for Breach of Articles 81 and 82 EC Filip Kubik European Commission, DG Competition Brno, 12 November 2008

  2. Background • ECJ in Courage v Crehan (2001): - full effectiveness of Article 81 requires thatany individual can claim damages • Ashurst study (2004): - astonishing diversity and total underdevelopment • Greenpaper (2005) • Whitepaper (April 2008)

  3. General approach • Compensation as primary objective • Effective legal framework for victims to exercise their rights under the Treaty • Preserving strong public enforcement • Balanced measures based on European legal cultures and traditions • Legal certainty and more level playing field

  4. Specific issues • Damages • Passing-on of overcharges • Standing: indirect purchasers and collective redress • Access to evidence: inter partes disclosure • Binding effect of NCA decisions • Fault requirement • Limitation periods • Costs of damages actions • Interaction between leniency programmes and actions for damages

  5. Indirect purchasers Objective: • To ensure compensation for all categories of victims (Courage 2001, Manfredi 2006) • Including indirect purchasers, i.e.: • victims further down the distribution chain→ need for rules on passing-on of overcharges • victims with scattered and small (individual) damage→ need for collective redress

  6. Passing-on Proposed measures: • To allow the passing-on defence while putting the burden on the defendant • To lighten the victim’s burden by a rebuttable presumption that the overcharge was entirely passed on • To avoid under- or over-compensation in case of joint, parallel or consecutive actions

  7. Collective redress Issues: • Follow-on or Stand-alone • Opt-in or Opt-out • Strict opt-in often does not work, e.g.: • Replica football shirts (Which?) • Mobile phone charges (Que Choisir) • Opt-out involves risks and is often viewed negatively in Europe (fear of US style class actions)

  8. Collective redress Proposed measures: • Opt-in collective action • combining individual damages claims into a single action • Representative action • brought by qualified entities on behalf of a group of victims

  9. Representative action Qualified entities: • designated in advance to bring representative actions • certified ad hoc to bring a representative action on behalf of its members in relation to a specific infringement Key issues: • criteria to be fulfilled by qualified entities • identified/identifiable victims • information obligation • right not to be represented • distribution of damages

  10. Access to Evidence Objective: • addressing the information asymmetry inherent in most antitrust cases • preventing that victims do not start, or do not win, a case simply because they had no access to the facts

  11. Access to evidence Proposed measures: • Inter partes disclosure based on fact-pleading and strict judicial control • Claimants must show a plausible case • Disclosure measure must be necessary and proportionate in scope • Effective sanctions for refusal to disclose or destruction of evidence

  12. After the White Paper • Public consultation until 15 July 2008 • over 170 submissions • Large agreement on • existence of obstacles to compensation • something needs to done • compensation as primary objective • need for balanced & European measures • Divergent views on • features of specific measures • who should tackle the issues • Follow-up & timing

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