65 Amendments of Andreas SCHWAB related to 2013/0185(COD)
Amendment 15 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) Effective means for consumers and undertakings to obtain damages will deter undertakings from committing infringements and will ensure greater compliance with the Union competition rules. Accordingly, in the interests of enhancing public enforcement of competition rules in the Union, cost- effective, timely and efficient compensation of victims of breaches of those rules should be encouraged. To that end, compensation of victims following a consensual dispute resolution process should be considered to be a mitigating factor by the competition authorities in the setting of fines. Encouraging consensual compensation of victims should be without prejudice to the need for harmonisation of the rules in the Members States governing actions for damages for infringements of national or Union competition law.
Amendment 16 #
Proposal for a directive
Recital 5 b (new)
Recital 5 b (new)
(5b) In accordance with recent European Parliament resolutions on Commission Annual Competition Reports, the fines adopted by the Commission, including in relation to undertakings benefiting pursuant to a leniency policy, should take into account any compensation already paid to victims and the parties should be encouraged to reach out-of-court settlements before a final decision on a fine is taken.
Amendment 20 #
Proposal for a directive
Recital 13
Recital 13
(13) Evidence is an important element for bringing actions for damages for infringement of national or Union competition law. However, as antitrust litigation is characterised by an information asymmetry, it is appropriate to ensure that injured parties are afforded the right to obtain the disclosure of evidence relevant to their claim, without it being necessary for them to specify individual items of evidence. In order to ensure equality of arms, those means should also be available to defendants in actions for damages, so that they can request the disclosure of evidence by those injured parties. National courts can also order evidence to be disclosed by third parties. Where the national court wishes to order disclosure of evidence by the Commission, the principle of sincere cooperation between the European Union and the Member States (Article 4(3) TEU) and Article 15(1) of Regulation No 1/2003 as regards requests for information are applicable.
Amendment 21 #
Proposal for a directive
Recital 19
Recital 19
(19) Leniency programmes and settlement procedures are important tools for the public enforcement of Union competition law as they contribute to the detection, efficient prosecution and sanctioning of the most serious competition law infringements. Undertakings may be deterred from co-operating in this context if disclosure of documents they solely produce to this end were to expose them to civil liability under worse conditions than the co-infringers that do not co-operate with competition authorities. To ensure that undertakings are willing to produce voluntary statements acknowledging their participation in an infringement of Union or national competition law to a competition authority under a leniency programme or a settlement procedure, such statements should be exceptatements and documents containing self-incriminating evidence produced for the purposes of applications for leniency and disclosed by the applicant for leniency, should, in principle, be protected from disclosure of evidence.
Amendment 23 #
Proposal for a directive
Recital 20
Recital 20
Amendment 24 #
Proposal for a directive
Recital 21
Recital 21
Amendment 25 #
Proposal for a directive
Recital 23
Recital 23
(23) However, the use referred to in the previous recital may not unduly detract from the effective enforcement of competition law by a competition authority. Limitations to disclosure referred to in recitals (19) and (20)Protection from disclosure should thus equally apply to the use of evidence which is obtained solely through access to the file of a competition authority. Moreover, evidence obtained from a competition authority in the context of exercise of the rights of defence should not become an object of trade. The possibility of using evidence that was obtained solely through access to the file of a competition authority should therefore be limited to the natural or legal person that exercised his rights of defence and his legal successors, as mentioned in the previous recital. This limitation does not, however, prevent a national court from ordering the disclosure of that evidence under the conditions provided for in this Directive.
Amendment 27 #
Proposal for a directive
Recital 25
Recital 25
(25) Article 16(1) of Regulation (EC) No 1/2003 provides that where national courts rule on agreements, decisions or practices under Article 101 or 102 of the Treaty which are already the subject of a Commission decision, they cannot take decisions which run counter to the decision adopted by the Commission. To enhance legal certainty, to avoid inconsistency in the application of those Treaty provisions, to increase the effectiveness and procedural efficiency of actions for damages and to foster the functioning of the internal market for undertakings and consumers, it should similarly not be possible to call into question a final decision by a national competition authority or a review court finding an infringement, or endorsing a finding of, an infringement, or no infringement, of Article 101 or 102 of the Treaty in actions for damages relating to the same infringementcase, regardless of whether or not the action is brought in the Member State of the national competition authority or review court. The same should apply to a decision in which it has been concluded that provisions of national competition law are infringed in cases where national and Union competition law are applied in the same case and in parallel. This effect of decisions by national competition authorities and reviewcompetition courts finding an infringement of the competition rules should apply to the operative part of the decision and its supporting recitals. This is without prejudice to the rights and obligations of national courts under Article 267 of the Treaty, to the right to an effective remedy and a fair trial and the right of defence pursuant to Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, and to the right to a fair hearing pursuant to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Accordingly, decisions of national competition authorities and competition courts shall be binding provided that there were no manifest errors in the investigation and provided that the rights of the defence were complied with.
Amendment 28 #
Proposal for a directive
Recital 28
Recital 28
(28) Undertakings which cooperate with competition authorities under a leniency programme play a key role in detecting secret cartel infringementanticompetitive agreements, decisions or practices and in bringing these infringements to an end, thereby often mitigating the harm which could have been caused had the infringement continued. It is therefore appropriate to make provision for undertakings which have received immunity from fines from a competition authority under a leniency programme to be protected from undue exposure to damages claims, bearing in mind that the decision of the competition authority finding the infringement may become final for the immunity recipient before it becomes final for other undertakings which have not received immunity. It is therefore appropriate that the immunity recipient is relieved in principle from joint and several liability for the entire harm and that its contribution does not exceed the amount of harm caused to his own direct or indirect purchasers or, in case of a buying cartel, his direct or indirect providers. To the extent a cartel has caused harm to others than the customers/providers of the infringing undertakings, the contribution of the immunity recipient should not exceed his relative responsibility for the harm caused by the cartel. This share should be determined in accordance with the same rules used to determine the contributions among infringing undertakings (recital (27) above). The immunity recipient should remain fully liable to the injured parties other than his direct or indirect purchasers or providers only where they are unable to obtain full compensation from the other infringing undertakings.
Amendment 29 #
Proposal for a directive
Recital 30
Recital 30
Amendment 31 #
Proposal for a directive
Recital 31
Recital 31
(31) Consumers or undertakings to whom actual loss has been passed on have suffered harm that has been caused by an infringement of national or Union competition law. While such harm should be compensated by the infringing undertaking, it may be particularly difficult for consumers or undertakings that did not themselves make any purchase from the infringing undertaking to prove the scope of that harm. It is therefore appropriate to provide that, where the existence of a claim for damages or the amount to be awarded depends on whether or to what degreen order to prove the existence of passing-on, the indirect purchaser should therefore at least show that the defendant has committed an infringement of competition law, that the infringement resulted in an overcharge paid byfor the direct purchaser of the infringing undertaking has been passed on to the indirect purchaser, the latter is regarded adefendant, that the indirect purchaser purchased the goods or services thaving brought the proof that an overcharge paid by that direct purchaser has been passed on to his level, wht were the subject of the infringement or purchased goods or services derived from or containing the goods or services that were the is able to show prima facie that such passing-on has occurred. It is furthermore appropriate to define under what conditions subject of the infringement, that the indirect purchaser purchased those goods or services from the direct purchaser or from another indirect purchaser is to be regarded as who is directly linked through the supply chaving established such prima facie proof to the defendant and that he purchased those goods or services with an overcharge. As regards the quantification of passing-on, the national court should have the power to estimate which share of the overcharge has been passed on to the level of indirect purchasers in the dispute pending before it. The infringing undertaking should be allowed to bring proof showing that the actual loss has not been passed on or has not been passed on entirely.
Amendment 32 #
Proposal for a directive
Recital 35
Recital 35
(35) To remedy the information asymmetry and some of the difficulties associated with quantifying antitrust harm, and to ensure the effectiveness of claims for damages, it is appropriate to presume that in the case of a cartel infringement, the infringement has caused harm, in particular via a price effect. Depending on the facts of the case this means that the cartel has caused a rise in price, or prevented a lowering of prices which would otherwise have occurred but for the infringement. The infringing undertaking should be free to rebut such presumption. It is appropriate to limit this rebuttable presumption to cartels, given the secret nature of a cartel, which increases the said information asymmetry and makes it more difficult for the injured party to obtain the necessarynational courts should be granted the power to establish the existence and estimate the amount of harm taking into account the presentation of evidence to proveby the hparmties.
Amendment 36 #
Proposal for a directive
Recital 40
Recital 40
(40) To encourage consensual settlements, an infringing undertaking that pays damages through consensual dispute resolution should not be placed in a worse position vis-à-vis its co-infringers than it would be in without the consensual settlement. This might happen if a settling infringer, even after a consensual settlement, continued to be fully jointly and severally liable for the harm caused by the infringement. A settling infringer should in principle therefore not contribute to his non-settling co-infringers when the latter have paid damages to the injured party with whom the first infringer had previously settled. The correlate to this non-contribution rule is that the claim of the injured party is reduced by the settling infringer’s share of the harm caused to him. This share should be determined in accordance with the same rules used to determine the contributions among infringing undertakings (recital (27) above). Without such reduction, the non- settling infringers would be unduly affected by the settlement to which they were not a party. The settling co-infringer will still have to pay damages where that is the only possibility for the injured party to obtain full compensation.
Amendment 37 #
Proposal for a directive
Article 2 – paragraph 1
Article 2 – paragraph 1
1. Anyone who has suffered harm caused by an infringement of Union or national competition law shall be able to claim full compensation for that harm, without prejudice to any requirement under national law to establish liability.
Amendment 38 #
Proposal for a directive
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
2a. Member States shall ensure that overcompensation is excluded.
Amendment 43 #
Proposal for a directive
Article 4 – paragraph 1 – point 13
Article 4 – paragraph 1 – point 13
13. ‘leniency programme’ means a programme on the basis of which a participant in a secret carteln anticompetitive agreement, decision or practice, independently of the other undertakings involved in the cartelat agreement, decision or practice, cooperates with an investigation of the competition authority, by voluntarily providing presentations of his knowledge of the cartelagreement, decision or practice and his role therein, in return for which the participant receives immunity from any fine to be imposed for the cartelagreement, decision or practice or a reduction of such fine;
Amendment 44 #
Proposal for a directive
Article 4 – paragraph 1 – point 14
Article 4 – paragraph 1 – point 14
14. ‘leniency corporate statement’ means an oral or written presentation voluntarily provided by, or on behalf of, an undertaking to a competition authority, at any moment during the procedure, describing the undertaking’s knowledge of a secret carteln anticompetitive agreement, decision or practice and its role therein, which was drawn up specifically for submission to the authority with a view to obtaining immunity or a reduction of fines under a leniency programme concerning the application of Article 101 of the Treaty or the corresponding provision under national law including any annexes to this statement; this does not include documents or information that exist irrespective of the proceedings of a competition authority (‘pre-existing information’);
Amendment 46 #
Proposal for a directive
Article 4 – paragraph 1 – point 17
Article 4 – paragraph 1 – point 17
17. ‘consensual settlement’ means an agreement whereby damages are paid following a consensual dispute resolution. including an agreement pursuant to which an undertaking commits to paying damages to the victims of breaches of the competition rules from a secured compensation fund;
Amendment 47 #
Proposal for a directive
Article 5 – paragraph 1 – subparagraph 1
Article 5 – paragraph 1 – subparagraph 1
Member States shall ensure that, for the purpose of actions for damages, national courts cannot, in principle, order a party or a third party to disclose leniency statements or any other document containing self-incriminating evidence disclosed by the applicant for leniency. However, where a claimant has presented reasonably available facts and evidence showing plausible grounds for suspectingufficient to support plausibly that he, or those he represents, has suffered harm caused by the defendant’s infringement of the competition lawrules and that the leniency statement or any other document containing self-incriminating evidence disclosed by the applicant for leniency applicant is indispensable to supporting their claim and contains evidence that cannot be otherwise provided, national courts canmay order the defendant or a third party to disclose evidence, regardless of whether or not thisat evidence is also included in the file of athe competition authority, subject to the conditions set out in this Chapter. Member States shall ensure that national courts are also able to order the claimant or a third party to disclose evidence on request of the defendant.
Amendment 48 #
Proposal for a directive
Article 5 – paragraph 2 – point a
Article 5 – paragraph 2 – point a
(a) shown thatpecified evidence which lies in the control of the other party or a third party and which is relevant in terms of substantiating his claim or defence; and
Amendment 49 #
Proposal for a directive
Article 5 – paragraph 2 – point b a (new)
Article 5 – paragraph 2 – point b a (new)
(ba) demonstrated that it is pursuing the request for disclosure of evidence for an identified action for damages that has been introduced before a national court in the Union; and
Amendment 50 #
Proposal for a directive
Article 5 – paragraph 2 – point b b (new)
Article 5 – paragraph 2 – point b b (new)
(bb) demonstrated to the satisfaction of the national court to which the request is made that the evidence obtained will not be used by the requesting party or any party related to it in any other proceedings and that it shall not be made available by the requesting party or any party related to it to any third party except express authorisation of the national court before which the identified action for damages is pending.
Amendment 51 #
Proposal for a directive
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2a. Member States shall ensure that national courts may order the disclosure of specified parts of that evidence or categories thereof, circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts.
Amendment 52 #
Proposal for a directive
Article 5 – paragraph 3 – introductory part
Article 5 – paragraph 3 – introductory part
3. Member States shall ensure that national courts limit disclosure of evidence to that which is proportionate and which relates to an action for damages in the Union. In determining whether any disclosure requested by a party is proportionate, national courts shall consider the public interests involved and the legitimate interests of all parties and thirdrivate parties concerned. They shall, in particular, consider:
Amendment 53 #
Proposal for a directive
Article 5 – paragraph 3 – point a a (new)
Article 5 – paragraph 3 – point a a (new)
(aa) the need to safeguard the effectiveness of the public enforcement of competition law, in particular with regard to risks that the disclosure of documents would pose to: (i) leniency programmes operated by competition authorities; (ii) settlement procedures operated by competition authorities; (iii) the internal decision-making procedures within a competition authority and within the European Competition Network;
Amendment 54 #
Proposal for a directive
Article 5 – paragraph 3 – point d a (new)
Article 5 – paragraph 3 – point d a (new)
(da) the need to avoid any abuse of the rights relating to disclosure of evidence provided for in this Chapter, and of the evidence and information obtained thereunder.
Amendment 55 #
Proposal for a directive
Article 5 – paragraph 4
Article 5 – paragraph 4
4. Member States shall ensure that national courts have at their disposal effective measures to protect confidential information from improper use to the greatest extent possible whilst also ensuring that relevant evidence containing such information is available in the action for damages within the Union. The interest that undertakings have to avoid actions for damages following an infringement shall not constitute a commercial interest worthy of protection.
Amendment 56 #
Proposal for a directive
Article 5 – paragraph 5 a (new)
Article 5 – paragraph 5 a (new)
5a. Member States shall ensure that competition authorities are heard before a national court orders disclosure under this Article regarding information derived from the files of the competition authority, regardless of whether the information is in the possession of the competition authority or a third party.
Amendment 57 #
Proposal for a directive
Article 5 – paragraph 5 b (new)
Article 5 – paragraph 5 b (new)
5b. Member States shall ensure that interested parties in possession of a leniency statement or any other document containing self-incriminating evidence brought forward by an applicant for leniency are heard before a national court orders disclosure under this Article regarding information derived from the specified documents.
Amendment 58 #
Proposal for a directive
Article 5 – paragraph 6
Article 5 – paragraph 6
6. Member States shall ensure that, to the extent that their courts have powers to order disclosure without hearing the person from whom disclosure is sought, no penalty for non-compliance with such an order may be imposed until the addressee of such an order has been heard by the national court.
Amendment 59 #
Proposal for a directive
Article 5 – paragraph 6 a (new)
Article 5 – paragraph 6 a (new)
6a. Member States shall ensure that a natural or legal person or an authority that is affected by a national court order under this Article has the possibility to take proceedings against the decision, including preliminary injunctions. Competition authorities should have the same right following a hearing as described in Article 5(5a).
Amendment 60 #
Proposal for a directive
Article 5 – paragraph 8
Article 5 – paragraph 8
Amendment 61 #
Proposal for a directive
Article 6
Article 6
Amendment 66 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
Amendment 67 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
Amendment 68 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Member States shall ensure that evidence which is obtained by a natural or legal person solely through access to the file of a competition authority in exercise of his rights of defence under Article 27 of Regulation No 1/2003 or corresponding provisions of national law, and which is not inadmissible pursuant to paragraphs 1 or 2 of this Article, can only be used in an action for damages by that person or by the natural or legal person that succeeded in his rights, including the person that acquired his claim.
Amendment 71 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) Effective means for consumers and undertakings to obtain damages will ensure greater compliance with the Union competition rules. Accordingly, in the interests of enhancing public enforcement of competition rules in the Union, cost- effective, timely and efficient compensation of victims of breaches of those rules should be encouraged. To that end, compensation of victims following a consensual dispute resolution process should be considered to be a mitigating factor by the competition authorities in the setting of fines. Encouraging consensual compensation of victims should be without prejudice to the need for harmonisation of the rules in the Members States governing actions for damages for infringements of national or Union competition law.
Amendment 71 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
Member States shall ensure that, where national courts rule, in actions for damages under Article 101 or 102 of the Treaty or under national competition law, on agreements, decisions or practices which are already the subject of a final infringement decision by a national competition authority or by a review court, those courts cannot take decisions running counter to such finding of an infringement. This obligation is without prejudice to the rights and obligations under Article 267 of the Treaty, to the right to an effective remedy and a fair trial, and the right of defence, pursuant to Articles 47 and 48 of the Charter, and to the right to a fair hearing pursuant to Article 6 of the ECHR. Accordingly, decisions of national competition authorities and competition courts shall be binding provided that there were no manifest errors in the investigation and provided that the rights of the defence were complied with.
Amendment 72 #
Proposal for a directive
Article 10 – paragraph 2 – point ii
Article 10 – paragraph 2 – point ii
(ii) thefacts qualification ofying such behaviour as an infringement of Union or national competition law;
Amendment 74 #
Proposal for a directive
Article 10 – paragraph 4
Article 10 – paragraph 4
4. Member States shall ensure that the limitation period for bringing an action for damages is at least fivthree years.
Amendment 76 #
Proposal for a directive
Article 10 – paragraph 5
Article 10 – paragraph 5
5. Member States shall ensure that the limitation period is suspended if a competition authority takes action for the purpose of the investigation or proceedings in respect of an infringement to which the action for damages relates. The suspension shall end at the earliest one year aftersix months after the day on which the infringement decision has become final or the proceedings are otherwise terminated.
Amendment 77 #
Proposal for a directive
Article 10 – paragraph 5 a (new)
Article 10 – paragraph 5 a (new)
5a. Notwithstanding paragraphs 1 to 5 of this Article, actions for damages shall be instituted within 10 years of the events that gave rise to them.
Amendment 79 #
Proposal for a directive
Article 12 – paragraph 1 a (new)
Article 12 – paragraph 1 a (new)
1a. Member States shall ensure that the national court has the power to estimate which share of that overcharge was passed on.
Amendment 80 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
Amendment 81 #
Proposal for a directive
Recital 11
Recital 11
(11) This Directive reaffirms the acquis communautaire on the Union right to compensation for harm caused by infringements of Union competition law, particularly regarding standing and the definition of damage, as it has been stated in the case-law of the Court of Justice of the European Union, and does not pre-empt any further development thereof. Anyone who has suffered harm caused by an infringement can claim compensation for the actual loss (damnum emergens), for the gain of which he has been deprived (loss of profit or lucrum cessans) and payment of interest accruing from the time the harm occurred until compensation is paid. This right is recognised for any natural or legal person - consumers, undertakings and public authorities alike - irrespective of the existence of a direct contractual relationship with the infringing undertaking, and regardless of whether or not there has been a prior finding of an infringement by a competition authority. Punitive damages or other types of damages and sanctions leading to overcompensation are excluded. Compensation for a loss of a chance shall not be considered as such damages leading to overcompensation. This Directive should not require Member States to introduce collective redress mechanisms for the enforcement of Articles 101 and 102 of the Treaty.
Amendment 81 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – introductory part
Article 13 – paragraph 2 – subparagraph 1 – introductory part
In the situation referred to in paragraph 1 of this Article, the indirect purchaser shall be deemed to have proven that ain order to prove existence of passing- on, to him occurred where he hhe indirect purchaser shall at least shown that all of the following:
Amendment 83 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point c a (new)
Article 13 – paragraph 2 – subparagraph 1 – point c a (new)
(ca) he purchased those goods or services from the direct purchaser or from another indirect purchaser who is directly linked through the supply chain to the defendant; and
Amendment 84 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point c b (new)
Article 13 – paragraph 2 – subparagraph 1 – point c b (new)
(cb) he purchased those goods or services with an overcharge.
Amendment 86 #
Proposal for a directive
Article 15 – paragraph 1 a (new)
Article 15 – paragraph 1 a (new)
1a. Article 12 and Article 13 shall not detain Member States from introducing rules which would preclude double payment of compensation for damages when compensation has already been paid either to the direct or indirect purchaser.
Amendment 89 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Member States shall ensure that, in the case of a cartel infringement, it shall be presumed thprovide that national courts be granted the power to establish the existence, and estimate the infringement caused harm. The infringing undertaking shall have the right to rebut this presumptionamount, of harm taking into account the presentation of evidence by the parties.
Amendment 90 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. Member States shall ensure that the burden and the level of proof and of fact- pleading required for the quantification of harm does not render the exercise of the injured party’s right to damages practically impossible or excessively difficult. Member States shall provide that the court be granted the power to estimate the amount of harm.
Amendment 91 #
Proposal for a directive
Recital 21 a (new)
Recital 21 a (new)
(21a) Where a claimant has presented reasonably available facts and evidence sufficient to support plausibly that he has suffered harm caused by the defendant's infringement of the competition rules and that the leniency statement or any other document disclosed for the purposes of participating in a leniency programme or in a settlement procedure by the applicant for leniency and submitted to a competition authority or drawn up by the competition authority during its proceedings is indispensable to supporting their claim and contains evidence that cannot be otherwise provided, national courts may order the defendant or a third party to disclose evidence, regardless of whether or not that evidence is also included in the file of the competition authority, subject to a set of conditions.
Amendment 91 #
Proposal for a directive
Article 17 – paragraph 2 a (new)
Article 17 – paragraph 2 a (new)
2a. Member States shall ensure that competition authorities forming part of the network of public authorities applying the Union competition rules may suspend proceedings where the parties to those proceedings are involved in consensual dispute resolution proceedings concerning a claim for damages. The compensation paid or to be paid to victims pursuant to such proceedings shall be considered to be a mitigating factor when establishing the level of the fine.
Amendment 92 #
Proposal for a directive
Recital 25
Recital 25
(25) Article 16(1) of Regulation (EC) No 1/2003 provides that where national courts rule on agreements, decisions or practices under Article 101 or 102 of the Treaty which are already the subject of a Commission decision, they cannot take decisions which run counter to the decision adopted by the Commission. To enhance legal certainty, to avoid inconsistency in the application of those Treaty provisions, to increase the effectiveness and procedural efficiency of actions for damages and to foster the functioning of the internal market for undertakings and consumers, it should similarly not be possible to call into question a final decision by a national competition authority or a review court finding an infringement of Article 101 or 102 of the Treaty in actions for damages relating to the same infringement, regardless of whether or not the action is brought in the Member State of the authority or review court. The same should apply to a decision in which it has been concluded that provisions of national competition law are infringed in cases where national and Union competition law are applied in the same case and in parallel. This effect of decisions by national competition authorities and review courts finding an infringement of the competition rules should apply to the operative part of the decision and its supporting recitals. To this regard, the European Commission should ensure a consistent application of EU competition law by providing in a transparent manner within the framework of the European Competition Network ('ECN') strong guidance to the national competition authorities as regards their decisions. This is without prejudice to the rights and obligations of national courts under Article 267 of the Treaty.
Amendment 92 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Member States shall ensure that, following a consensual settlement, the claim of the settling injured party is reduced by the settling co-infringer’s share of the harm that the infringement inflicted upon the injured party. Non-settling co- infringers cannot recover contribution from the settling co-infringer for the remaining claim. Only when the non-settling co- infringers are not able to pay the damages that correspond to the remaining claim can the settling co-infringer be held to pay damages to the settling injured party.
Amendment 98 #
Proposal for a directive
Recital 44 a (new)
Recital 44 a (new)
Amendment 104 #
Proposal for a directive
Article 2 – paragraph 2
Article 2 – paragraph 2
2. Full compensation shall place anyone who has suffered harm in the position in which that person would have been had the infringement not been committed. It shall therefore include compensation for actual loss and for loss of profit, and payment of interest from the time the harm occurred until the compensation, according to the national law provisions regarding the payment of interest, payment of interest in respect of that harm has actually been paid.
Amendment 105 #
Proposal for a directive
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
2a. Punitive damages, multiple damages or other types of damages and sanctions leading to overcompensation are excluded.
Amendment 135 #
Proposal for a directive
Article 4 a (new)
Article 4 a (new)
Article 4 a Safeguards 1. Member States shall ensure that the unsuccessful party in an action for damages shall reimburse the reasonable legal costs, which arose for the winning party ('loser pays principle'). 2. Member States shall ensure that the lawyers' remuneration in an action for damages does not create any incentive to litigation that is unnecessary from the point of view of the interest of any of the parties. In particular, contingency fees, conditional fees and any other fees calculated on the basis of the amount of the settlement reached or damages awarded to the claimant, or the payment of which depends on the outcome of the case shall not be allowed.
Amendment 158 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. Member States shall ensure that, for the purpose of actions for damages, national courts cannot at any time order a party or a third party to disclose any of the following categories of evidence: , in principle, order a party or a third party to disclose leniency statements or any other document disclosed for the purposes of participating in a leniency programme or in a settlement procedure by the applicant for leniency and submitted to a competition authority or drawn up by the competition authority during its proceedings. However, where a claimant has presented reasonably available facts and evidence sufficient to support plausibly that he, or those he represents, has suffered harm caused by the defendant's infringement of the competition rules and that the leniency statement or any other document disclosed for the purposes of participating in a leniency programme or in a settlement procedure by the applicant for leniency and submitted to a competition authority or drawn up by the competition authority during its proceedings is indispensable to supporting their claim and contains evidence that cannot be otherwise provided, national courts may order the defendant or a third party to disclose evidence, regardless of whether or not that evidence is also included in the file of the competition authority, subject to the conditions set out in this Chapter. Member States shall ensure that national courts are also able to order the claimant or a third party to disclose evidence on request of the defendant. This provision is without prejudice to the rights and obligations of national courts under Council Regulation (EC) No 1206/2001.
Amendment 173 #
Proposal for a directive
Article 6 – paragraph 3 a (new)
Article 6 – paragraph 3 a (new)
(3a) Member States shall ensure that interested parties in possession of a leniency statement or any other document disclosed for the purposes of participating in a leniency programme or in a settlement procedure by the applicant for leniency and submitted to a competition authority or drawn up by the competition authority during its proceedings are heard before a national court orders disclosure under this Article regarding information derived from the specified documents.
Amendment 192 #
Proposal for a directive
Article 10 – paragraph 4 a (new)
Article 10 – paragraph 4 a (new)
4a. Notwithstanding paragraphs 1 to 4 of this Article, actions for damages shall be instituted within 10 years from the date on which the cause of action accrued.
Amendment 212 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point c a (new)
Article 13 – paragraph 2 – subparagraph 1 – point c a (new)
(ca) the whole or part of the overcharge was passed on to him.
Amendment 228 #
Proposal for a directive
Article 21 – title
Article 21 – title
Entry into force and Transition Rule for pending cases
Amendment 229 #
Proposal for a directive
Article 21 – paragraph 1 a (new)
Article 21 – paragraph 1 a (new)
The provisions adopted by the Member States for the implementation of the Directive shall not apply to claims for damages that are the object of litigation matters pending before the national court of a Member State prior to the entry into force of the Directive.