22 Amendments of Sharon BOWLES related to 2008/2154(INI)
Amendment 3 #
Motion for a resolution
Recital B
Recital B
B. whereas the Court of Justice of the European Communities has ruled that individuals and undertakings, with a view to guaranteeing the unrestricted effectiveness of Article 81 of the Treaty, may seek compensation for the damage done to them by a competition violation, and this establishes a specific and separate reason for proceeding with competition damages actions,
Amendment 9 #
Motion for a resolution
Recital D a (new)
Recital D a (new)
Da. whereas actions for damages are only one element of an effective system of private enforcement, and whereas non- court based avenues of redress, such as alternative dispute resolution or public enforcement decisions that incentivise parties to provide compensation, should be given due consideration,
Amendment 15 #
Motion for a resolution
Paragraph 2
Paragraph 2
2. Notes that the Commission has not so far stated what legal base ist will be invoking for its proposed measures, and doubts that the Treaty offers a basis for the planned interventions into national damages and procedural law;
Amendment 19 #
Motion for a resolution
Paragraph 3
Paragraph 3
3. Takes the view that mass and dispersed damages, information asymmetries and other problems encountered in prosecuting damages claims occur not only in EC competition law, but also in other areas such as product liability; 1 OJ L 157, 30.4.2004, p. 45. notes that competition law torts should be treated consistently with other torts insofar as possible, but nevertheless recognises particular complexities and difficulties with regard to competition law, especially as regards stand-alone damages actions; in particular, observes that the disclosure provisions of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights1 and the Second Venice Resolution of European Patent Judges adopted on 4 November 2006 fit well with the requirements of competition actions and should be examined as a stimulus; stresses that in the interests of individuals and SMEs, procedural complexity should be avoided;
Amendment 23 #
Motion for a resolution
Paragraph 4
Paragraph 4
4. Points out that at the end of 2008 the Commission’s DG ‘Health and Consumers’ will be publishing the results of two studies on collective law enforcement instruments in the Member States and possible barriers to the single market resulting from the differing legislation in the Member States; points out also that the Commission has announced a Communication for late 2008 on the Community’s possible options for action; stresses that measures at European level must not lead to any fragmentation of procedural law, and asks that we wait for the results of the studies and for the Communication before considering whether, and to what extent, a horizontal approach should be chosen to facilitate the prosecution of damage compensation claims; calls on the Commission in consequence to undertake an examination of the legal base and the needpossible case for a horizontal instrument, and to refrain in the meantime from presenting any collective law enforcement mechanisms for private individuals in; notes however the more advanced analysis of civil competition law redress and the advanced framework of competition authorities and the European Competition Network, and considers that this justifies moving forward separately giving due consideration to the aprea of EC competition lawcedents that are set;
Amendment 27 #
Motion for a resolution
Paragraph 5
Paragraph 5
5. Takes the view that direct and indirect purchasers should have available to them, for the prosecution of their stand-alone or follow-up claims, individual, collective or representative claims, but that to avoid multiple actions in relation to the same infringement, selection of one such action by a party should preclude them from using one of the other actions either simultaneously or subsequently, unless in exceptional circumstances a court specifically rules otherwise; in the event that different parties launch separate actions, attempts should be made for them to be combined or sequenced;
Amendment 31 #
Motion for a resolution
Paragraph 5 a (new)
Paragraph 5 a (new)
5a. Notes that achieving a ‘once-and-for- all’ settlement for defendants is desirable with a view to reducing uncertainty and an exaggerated economic effect that might impact on employees, suppliers, subcontractors and other innocent parties; asks the Commission to consider ways to achieve certainty other than through simple limitation periods, and to further investigate opt-out collective actions and how they can be adapted to take account of the requirement for actual damage; notes that, in general, courts should award damages to the defined and identified set of injured parties involved in the litigation before them;
Amendment 37 #
Motion for a resolution
Paragraph 6
Paragraph 6
6. Takes the view that the Member States, in accordance with Article 3 of Directive 98/27/EC of the European Parliament and the Council of 19 May 1998 on injunctions for the protection of consumer interests1, should as a general rule give the power to prosecute in representative actions to qualified entities, and that authorisations to pursue such actions should primarily be considered for associations which arrange for actions in law for damages for companiesuch as consumer or trade associations;
Amendment 39 #
Motion for a resolution
Paragraph 6 a (new)
Paragraph 6 a (new)
6a. Observes that there should be some prima facie assessment of the merits of a collective action at a preliminary stage, and that attempts should be made to facilitate the parties reaching a fair and early settlement through alternative dispute resolution, such an attempt being mandatory in the case of follow-on actions; stresses that such an obligation must not entail an undue prolongation of proceedings, nor promote the unfair settlement of claims;
Amendment 43 #
Motion for a resolution
Paragraph 7
Paragraph 7
7. Asks that only a clearly identified group of people be allowed to take part in representative actions, and that identification must have taken place by the time the claim is brought; stresses that only the damage actually suffered may be compensated; notes that in the case of a successful claim the compensation sued for must be paid to the identified group of people or their nominee and that the qualified entity may only ever be compensated for the costs it has incurred in the course of prosecuting the claim and may not either directly or indirectly be a nominee for receipt of damages;
Amendment 46 #
Motion for a resolution
Paragraph 8
Paragraph 8
8. Stresses that participation in an opt-in collective claim must remain possible at least up to the time of the commencement of proceedings;
Amendment 47 #
Motion for a resolution
Paragraph 8
Paragraph 8
9. Stresses that in the total leventl of a successful stand-alone claim a subsequent prosecution by the authorities ffines and damages paid should not be affected by whether the competition authority action follows on from or bpreach of competition law is not excluded, but that the amount of the compensation awarded must be borne in mind in calculatcedes a private action; suggests that a mechanism be investigated for achieving equity by linking the total level of fines and damages paid in both of these instances, such as the deferral of a proportion of the fine when a follow-on action is expected; notes however that this should neither result in lengthy uncertainty as regards settlement finality for companies, nor affect the right of individuals and undertakings the fineo be compensated for damage suffered;
Amendment 54 #
Motion for a resolution
Paragraph 10
Paragraph 10
10. Stresses that collective claimants must not be in a better or worse position than individual claimants, and calls for application in the context of collective law enforcement mechanisms of the principle that the party bringing the infringement claim must provide evidence for their claim, provided the national law in question does not provide for any lightening of the burden of proof;
Amendment 57 #
Motion for a resolution
Paragraph 11
Paragraph 11
11. Calls for the Commission to be obliged, in the follow-up to an investigation by the authorities, to allow victims of competition infringements full access to Commission documents, and stresses that access to documents can only be denied where interests of the defendant or third parties that are pressingly in need of protection would thereby be endangered; notes however that further consideration and guidelines are needed concerning the treatment of leniency applications;
Amendment 61 #
Motion for a resolution
Paragraph 12
Paragraph 12
12. Believes that a national court may not be bound by a decision of the national competition authority of another Member State; observes that training and exchange programs should lead to convergence of decisions so that acceptance of decisions of national competition authorities becomes the norm; considers that the application of different national circumstances must also be taken into consideration;
Amendment 63 #
Motion for a resolution
Paragraph 13
Paragraph 13
13. Stresses that a culpable act must always be a prerequisite for a claim for compensation for damages, and that the competition law infringement must, at the least, be negligent, noting however that this does not overrule the special circumstances that apply to abuses of a dominant position, and that the rules on the burden of proof should take account of such circumstances;
Amendment 65 #
Motion for a resolution
Paragraph 14
Paragraph 14
14. Welcomes the fact that the compensation is designed to make good losses, including overcharges, and lost profit, including interest, and calls for this definition of damages to be established for collective law enforcement mechanisms at European level;
Amendment 68 #
Motion for a resolution
Paragraph 15
Paragraph 15
15. Welcomes the Commission’s work on a non-binding guidance framework for the calculation of damages, which could usefully include guidance on the information required to make the calculation and the application of such calculations to mechanisms for using alternative dispute resolution whenever possible;
Amendment 70 #
Motion for a resolution
Paragraph 16
Paragraph 16
16. Approves the admissibility of the defence of passing on of damages and stresses that evidence for this defence must always be provided by the party advancing it, with the courts having the option of recourse to established national rules on the link between causality and liability in order to come to just decisions in individual cases; notes that there is merit in developing a common approach to passing-on at EU level;
Amendment 75 #
Motion for a resolution
Paragraph 17
Paragraph 17
17. Welcomes that fact that in the case of continuous or repeated infringements, limitation periods begin on the day when the infringement ceases or when the victim can reasonably be expected to have knowledge of the infringement, whichever is the later; stresses that rules on limitation periods also serve to create legal certainty and that in the event of a failure to establish liability an absolute limitation period of ten years must therefore apply; also welcomes the fact that the limitation period for stand-alone claims is to be based on national law, and calls for this to apply to follow-up claims also; calls, in addition, in the case of prosecution by the authorities, for the limitation period for follow-up cases to be suspended, the suspension to begin with the opening of the proceedings and to end with the definitive ruling or ending of the investigation by the cartel authority or with the binding judgment of the appellate court;
Amendment 76 #
Motion for a resolution
Paragraph 18
Paragraph 18
18. Welcomes the fact that the Member States are to determine their own rules on allocation of costs; insists that the Commission should neither use soft-law instruments to encourage the Member States to deviate to the advantage of the plaintiff from the principle that the loser must bear the costs of the other party nor set out any guidelines on funding of damages claimcalls for further work concerning the financing of actions by claimants; observes that access to justice must also be balanced by strong measures to prevent abuse in the form of, for example, frivolous, vexatious or ‘blackmailing’ actions;
Amendment 80 #
Motion for a resolution
Paragraph 20
Paragraph 20
20. Insists that the European Parliamenit must be involved, in the framework of either the codecision or the consultation procedure, in any legislative initiative in the area of collective law enforcement;