The Directive on Antitrust Damages Actions Comes into Force

Violations of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) can take various forms, such as price fixing and abuse of dominant position. They can cause specific harm to direct and indirect customers and end consumers in the form of higher prices and/or loss of profits.
In 1973, the Court of Justice of the European Union (CJEU) ruled that EU antitrust rules “create direct rights for the persons concerned, which national courts must protect” (Case C-127/73, BRT v SABAM). In subsequent decisions, such as Courage and Crehan (Case C-453/99) or Manfredi (C 295/04 to C 298/04), the CJEU laid the foundations for the right of every individual, citizen or business, to claim full compensation for damage caused to them by a breach of EU antitrust rules.
However, victims, especially small and medium-sized enterprises (SMEs) and consumers, continued to face practical challenges in obtaining this compensation, because the exercise of the right to compensation under EU law depended on the various legal frameworks of the Member States, which made the exercise of these rights particularly complex.
In 2013, the Commission proposed a Directive that would remove the main obstacles to effective compensation and guarantee minimum protection for citizens and businesses, anywhere in the EU. After its approval according to the ordinary legislative procedure, Directive 2014/104/EU on Antitrust Damages Actions entered into force on 26 December 2014.
All Member States implemented the Directive in their legal systems by 2018. The Commission published a report on the implementation of the Antitrust Damages Directive in December 2020.
The Commission also amended Regulation 773/2004 and four related Notices (Access to File, Leniency, Settlements and Cooperation with National Courts) to align them with the Directive. These amendments mainly concern the disclosure and use of information contained in the Commission’s files.
The Commission also adopted a Communication on the Protection of Confidential Information for the Private Enforcement of EU Competition Law by National Courts. The Communication seeks to assist national courts when dealing with requests for disclosure of evidence in private enforcement actions, by identifying measures to protect confidential information.
Supplementary guidance for the Directive is provided by the Commission’s Guidelines on Pass-on and the Practical Guide on Quantifying Antitrust Harm in Damages Actions. Their aim is to assist national courts, parties to antitrust damages actions and other stakeholders in quantifying the damages caused by antitrust infringements.
The Damages Directive does not require Member States to introduce collective redress mechanisms, however, they are, in principle, possible. In Member States where the Damages Directive applies to collective actions, the Directive makes collective redress more effective. For example, through disclosure rules, the Directive can ensure that the consumer representative has access to the necessary data to support their case before the national judge.
Victims of infringements of European Economic Area (EEA) antitrust rules can also bring damages actions caused by such infringements. The EFTA Court found that Articles 53 and 54 of the EEA, which are equivalent to Articles 101 and 102 of the TFEU, can be invoked in disputes between private parties to claim damages for violation of the rights recognized therein. The EFTA Court has provided guidance to national courts on damages actions for breaches of competition law in several cases.