94 Amendments of Sharon BOWLES related to 2013/0185(COD)
Amendment 23 #
Proposal for a directive
Recital 3
Recital 3
(3) Articles 101 and 102 of the Treaty produce direct effects in relations between individuals and create, for the individuals concerned, rights and obligations which national courts must enforce. National courts thus have an equally essential part to play in applying the competition rules (private enforcement). When ruling on disputes between private individuals, they protect subjective rights under Union law, for example by awarding damages to the victims of infringements. The full effectiveness of Articles 101 and 102 of the Treaty, and in particular the practical effect of the prohibitions laid down therein, requires that anyone - be they an individual, including consumers and undertakings, or a public authority - can claim compensation before national courts for the harm caused to them by an infringement of those provisions in either a direct or a follow-on case. This Union right to compensation applies equally to breaches of Articles 101 and 102 by public undertakings or undertakings entrusted with special or exclusive rights by Member States within the meaning of Article 106 of the Treaty.
Amendment 25 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) Actions for damages are only one element of an effective system of private enforcement of breaches of competition law and are accompanied by non-court based avenues of redress, such as consensual dispute resolution or public enforcement decisions that incentivise parties to provide compensation.
Amendment 28 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) Mass and dispersed damages, information asymmetries and other problems encountered in prosecuting damages claims occur in EC competition law. To mitigate these, competition torts should be treated consistently with other torts insofar as possible, paying regard to particular complexities and difficulties associated with competition law enforcement, especially as regards stand- alone damages actions. Furthermore, 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 rights and the Second Venice Resolution of European Patent Judges adopted on 4 November 2006 fit well with the requirements of competition actions. In the interests of individuals and SMEs, procedural complexity should be avoided.
Amendment 35 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) 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.
Amendment 37 #
Proposal for a directive
Recital 14
Recital 14
(14) Relevant evidence should be disclosed upon decision of the court and under its strict control, especially as regards the necessity and proportionality of the disclosure measure. It follows from the requirement of proportionality that disclosure requests can only be triggered once an injured party has made it plausibleprovided a reasoned justification, on the basis of facts which are reasonably available to him, that the party has suffered harm that was caused by the defendant. The request for disclosure should refer to categories of evidence which areis defined as precisely and narrowly as possible on the basis of reasonably available facts.
Amendment 40 #
Proposal for a directive
Recital 17
Recital 17
(17) While relevant evidence containing business secrets or otherwise confidential information should in principle be available in actions for damages, such confidential information needs to be appropriately protected. National courts should therefore have at their disposal a range of measures to protect such confidential information from being disclosed during the proceedings. These may include the possibility of hearings in private, redacting that confidential information, restricting the circle of persons entitled to see the evidence, and instruction of experts to produce summaries of the information in an aggregated or otherwise non-confidential form. Measures protecting business secrets and other confidential information should not practically impede the exercise of the right to compensation.
Amendment 41 #
Proposal for a directive
Recital 17 a (new)
Recital 17 a (new)
Amendment 47 #
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 degree an overcharge paid by the direct purchaser of the infringing undertaking has been passed on to the indirect purchaser, the latter is regarded as having brought the proof that an overcharge paid by that direct purchaser has been passed on to his level, where he is able to show prima facie that such passing- on has occurred. It is furthermore appropriate to define under what conditions the indirect purchaser is to be regarded as having established such prima facie proof, while also respecting that it is normal business practice to pass on overcharges down the supply chain. 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 50 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Directive sets out certain rules necessary to ensure that anyone who has suffered harm caused by an infringement of Article 101 or 102 of the Treaty or of national competition law by an undertaking or group of undertakings, can effectively exercise the right to claim full compensation for that harm from those infringing parties. It also sets out rules fostering undistorted competition in the internal market and removing obstacles to its proper functioning by ensuring equivalent protection throughout the Union for anyone who has suffered such harm.
Amendment 51 #
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 from the infringing parties in either a direct or a follow-on private case.
Amendment 53 #
Proposal for a directive
Article 2 – paragraph 3 a (new)
Article 2 – paragraph 3 a (new)
3a. The total level of fines and damages paid should not be affected by whether the competition authority action follows on from or precedes private action. Competition authorities shall link the total level of fines and damages paid in both of these instances, such as through the deferral of a proportion of the fine when a follow-on action is expected. However, this should neither result in lengthy uncertainty as regards settlement finality for companies, nor affect the right of individuals and undertakings to be compensated for damage suffered.
Amendment 54 #
Proposal for a directive
Article 4 – paragraph 1 – point 2
Article 4 – paragraph 1 – point 2
2. ‘national competition law’ means provisions of national law that predominantly pursue the same objective as Articles 101 and 102 of the Treaty and that are applied to the same case and in parallel to Union competition law pursuant to Article 3(1) of Regulation (EC) No 1/2003; This definition does not apply to national laws which impose criminal sanctions on natural persons except to the extent that such sanctions are the means whereby competition rules applying to undertakings are enforced.
Amendment 58 #
Proposal for a directive
Article 4 – paragraph 1 – point 5
Article 4 – paragraph 1 – point 5
5. ‘injured party’ means anyone who has a claim for damagessuffered harm as a result of anti- competitive behaviour;
Amendment 59 #
Proposal for a directive
Article 4 – paragraph 1 – point 12
Article 4 – paragraph 1 – point 12
12. ‘'cartel’' means an agreement and/or concerted practice between two otwo or more horizontal competitors co-ordinating their behaviour within a market to earn rents above those possible under mnoremal competitors aimed ation, or co- ordinating their competitive behaviour on the market and/or influencing the relevant parameters of competitionbehaviour within a market to exclude undertakings operating under normal market conditions from gaining market share, through practices such as, inter alia, the fixing or coordination of purchase or selling prices or other trading conditions, abusive licensing practices, the allocation of production or sales quotas, the sharing of markets and customers, including bid- rigging, restrictions of imports or exports and/or anti-competitive actions against other competitors;
Amendment 60 #
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, describing the undertaking's knowledge of a secret cartel 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; this does not include documents or information that exist irrespective of the proceedings of a competition authority (‘pre-existing information’) or any information given at the request of a competition authority;
Amendment 61 #
Proposal for a directive
Article 4 – paragraph 1 – point 16
Article 4 – paragraph 1 – point 16
16. ‘'overcharge’' means any positive difference between the price actually paid andwhen a higher price has been paid due to competition law infringement, calculated by subtracting the price that would have prevailed in the absence of an infringement of competition law from the actual price paid;
Amendment 64 #
Proposal for a directive
Article 5 – paragraph 1 – subparagraph 1
Article 5 – paragraph 1 – subparagraph 1
Member States shall ensure that, where a claimant has presented a reasonablyed justification containing available facts and evidence showing plausible grounds for suspecting that he, or those he represents, has suffered harm caused by the defendant's infringement of competition law, national courts can order the defendant or a third party to disclose evidence, regardless of whether or not this evidence is also included in the file of a competition authority, subject to the conditions set out in this Chapter. Member States shall ensure that courts are also able to order the claimant or a third party to disclose evidence on request of the defendant.
Amendment 66 #
Proposal for a directive
Recital 3
Recital 3
(3) Articles 101 and 102 of the Treaty produce direct effects in relations between individuals and create, for the individuals concerned, rights and obligations which national courts must enforce. National courts thus have an equally essential part to play in applying the competition rules (private enforcement). When ruling on disputes between private individuals, they protect subjective rights under Union law, for example by awarding damages to the victims of infringements. The full effectiveness of Articles 101 and 102 of the Treaty, and in particular the practical effect of the prohibitions laid down therein, requires that anyone - be they an individual, including consumers and undertakings, or a public authority - can claim compensation before national courts for the harm caused to them by an infringement of those provisions in either a direct or a follow-on case. This Union right to compensation applies equally to breaches of Articles 101 and 102 by public undertakings or undertakings entrusted with special or exclusive rights by Member States within the meaning of Article 106 of the Treaty.
Amendment 67 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) Actions for damages are only one element of an effective system of private enforcement of breaches of competition law and are accompanied by non-court based avenues of redress, such as consensual dispute resolution or public enforcement decisions that incentivise parties to provide compensation.
Amendment 67 #
Proposal for a directive
Article 5 – paragraph 2 – point a
Article 5 – paragraph 2 – point a
(a) showprovided a reasoned justification that evidence in the control of the other party or a third party is relevant in terms of substantiating his claim or defence; and
Amendment 68 #
Proposal for a directive
Article 5 – paragraph 2 – point b
Article 5 – paragraph 2 – point b
(b) specified in the reasoned justification either pieces of this evidence or categories of this evidence defined as precisely and narrowly as he can on the basis of reasonably available facts.
Amendment 71 #
Proposal for a directive
Article 5 – paragraph 3 – point c
Article 5 – paragraph 3 – point c
(c) whether the evidence to be disclosed contains confidential information, especially concerning any third parties, and the arrangements for protecting such confidential information; and
Amendment 72 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) Mass and dispersed damages, information asymmetries and other problems encountered in prosecuting damages claims occur in EC competition law. To mitigate these, competition torts should be treated consistently with other torts insofar as possible, paying regard to particular complexities and difficulties associated with competition law enforcement, especially as regards stand- alone damages actions. Furthermore, 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 rights and the Second Venice Resolution of European Patent Judges adopted on 4 November 2006 fit well with the requirements of competition actions. In the interests of individuals and SMEs, procedural complexity should be avoided.
Amendment 74 #
Proposal for a directive
Article 5 – paragraph 3 – point d
Article 5 – paragraph 3 – point d
(d) in cases where the infringement is being or has been investigated by a competition authority, whether the request has been formulated specifically with regard to the nature, object or content of such documents rather than by a non- specific request concerning documents submitted to a competition authority or held in the file of such competition authority.; and
Amendment 75 #
Proposal for a directive
Article 5 – paragraph 3 – point d a (new)
Article 5 – paragraph 3 – point d a (new)
(da) the existence of any leniency corporate statements.
Amendment 77 #
Proposal for a directive
Article 5 – paragraph 5
Article 5 – paragraph 5
5. Member States shall take the necessary measures to give full effect to legal privileges and other rights not to be compelled to disclose evidence. 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 competition rules and that documents containing self-incriminating evidence are 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. 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 shall be without prejudice to the rights and obligations of national courts under Council Regulation (EC)1206/2001.
Amendment 78 #
Proposal for a directive
Article 5 – paragraph 5
Article 5 – paragraph 5
5. Member States shall take the necessary measures to give full effect to legal privileges and other rights not to be compelled to disclose evidence in accordance to national law.
Amendment 81 #
Proposal for a directive
Article 5 – paragraph 7
Article 5 – paragraph 7
7. Evidence shall include all types of evidence admissible before the national court seiszed, in particular documents and all other objects containing information, irrespective of the medium on which the information is storedwith the exception of leniency corporate statements.
Amendment 82 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) 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.
Amendment 83 #
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 ats any time general requirement order a party or a third party to disclose any of the following categories of evidence:leniency corporate statements.
Amendment 85 #
Proposal for a directive
Recital 14
Recital 14
(14) Relevant evidence should be disclosed upon decision of the court and under its strict control, especially as regards the necessity and proportionality of the disclosure measure. It follows from the requirement of proportionality that disclosure requests can only be triggered once an injured party has made it plausibleprovided a reasoned justification, on the basis of facts which are reasonably available to him, that the party has suffered harm that was caused by the defendant. The request for disclosure should refer to categories of evidence which areis defined as precisely and narrowly as possible on the basis of reasonably available facts.
Amendment 85 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
Amendment 86 #
Proposal for a directive
Recital 17
Recital 17
(17) While relevant evidence containing business secrets or otherwise confidential information should in principle be available in actions for damages, such confidential information needs to be appropriately protected. National courts should therefore have at their disposal a range of measures to protect such confidential information from being disclosed during the proceedings. These may include the possibility of hearings in private, redacting that confidential information, restricting the circle of persons entitled to see the evidence, and instruction of experts to produce summaries of the information in an aggregated or otherwise non-confidential form. Measures protecting business secrets and other confidential information should not practically impede the exercise of the right to compensation.
Amendment 88 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
Amendment 90 #
Proposal for a directive
Article 6 – paragraph 2 – introductory part
Article 6 – paragraph 2 – introductory part
2. Member States shall ensure that, for the purpose of actions for damages, national courts can order the disclosure of the following categories of evidence only after a competition authority has closed its proceedings or taken a decision referred to in Article 5 of Regulation No 1/2003 or in Chapter III of Regulation No 1/2003:
Amendment 91 #
Proposal for a directive
Article 6 – paragraph 2 – point b a (new)
Article 6 – paragraph 2 – point b a (new)
(ba) settlement submissions and withdrawn offers.
Amendment 93 #
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 degree an overcharge paid by the direct purchaser of the infringing undertaking has been passed on to the indirect purchaser, the latter is regarded as having brought the proof that an overcharge paid by that direct purchaser has been passed on to his level, where he is able to show prima facie that such passing- on has occurred. It is furthermore appropriate to define under what conditions the indirect purchaser is to be regarded as having established such prima facie proof, while also respecting that it is normal business practice to pass on overcharges down the supply chain. 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 94 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. Disclosure of evidence in the file of a competition authority that doeis not fall into any of the categories listed incovered under paragraphs 1 orand 2 of this Article may be ordered in actions for damages at any time, including evidence that exists irrespective of the proceedings of a competition authority.
Amendment 97 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Member States shall ensure that evidence falling into one of the categories listed in Article 6(1) 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 is not admissible in actions for damages.
Amendment 99 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Directive sets out certain rules necessary to ensure that anyone who has suffered harm caused by an infringement of Article 101 or 102 of the Treaty or of national competition law by an undertaking or group of undertakings, can effectively exercise the right to claim full compensation for that harm from those infringing parties. It also sets out rules fostering undistorted competition in the internal market and removing obstacles to its proper functioning by ensuring equivalent protection throughout the Union for anyone who has suffered such harm.
Amendment 99 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Member States shall ensure that evidence falling within one of the categories listed in Article 6, paragraph 2 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 is not admissible in actions for damages until that competition authority has closed its proceedings or taken a decision referred to in Article 5 of Regulation No 1/2003 or in Chapter III of Regulation No 1/2003.
Amendment 100 #
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. from the infringing parties in either a direct or a follow-on private case.
Amendment 101 #
Proposal for a directive
Article 8 – paragraph 1 – point b – introductory part
Article 8 – paragraph 1 – point b – introductory part
(b) the destruction of relevant evidence, provided that, at the time of destruction:;
Amendment 102 #
Proposal for a directive
Article 8 – paragraph 1 – point b – point i
Article 8 – paragraph 1 – point b – point i
Amendment 103 #
Proposal for a directive
Article 8 – paragraph 1 – point b – point ii
Article 8 – paragraph 1 – point b – point ii
Amendment 104 #
Proposal for a directive
Article 8 – paragraph 1 – point b – point iii
Article 8 – paragraph 1 – point b – point iii
Amendment 106 #
Proposal for a directive
Article 10 – paragraph 2 – introductory part
Article 10 – paragraph 2 – introductory part
2. Member States shall ensure that the limitation period shall not begin to run beforeon the latest date after an injured party knows, or can reasonably be expected to have knowledge of:
Amendment 109 #
Proposal for a directive
Article 10 – paragraph 2 – point ii
Article 10 – paragraph 2 – point ii
(ii) the qualification of such behaviour as an infringement of Union or national competition law, such as the result of a public action;
Amendment 110 #
Proposal for a directive
Article 2 – paragraph 3 a (new)
Article 2 – paragraph 3 a (new)
3a. The total level of fines and damages paid should not be affected by whether the competition authority action follows on from or precedes private action. Competition authorities shall link the total level of fines and damages paid in both of these instances, such as through the deferral of a proportion of the fine when a follow-on action is expected. However, this should neither result in lengthy uncertainty as regards settlement finality for companies, nor affect the right of individuals and undertakings to be compensated for damage suffered.
Amendment 112 #
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 fivesix years.
Amendment 114 #
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 after the infringement decision has become final, when a case can no longer be appealed or reviewed, or the proceedings are otherwise terminated.
Amendment 118 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Member States shall ensure that an undertaking which has been granted immunity from fines by a competition authority under a leniency programme shall be liable to injured parties other than its direct or indirect purchasers or providers only when such injured parties show that they are unait is not reasonably possible to obtain fullappropriate compensation from the other undertakings that were involved in the same infringement of competition law.
Amendment 119 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
1. Member States shall ensure that the defendant in an action for damages can invoke as a defence against a claim for damages the fact that the claimant passed on the whole or part of the overcharge resulting from the infringement. TWithout prejudice to the commercial presumption that price increases are passed on down the supply chain, the burden of proving that the overcharge was passed on shall rest with the defendant who may reasonably require disclosures from the claimant.
Amendment 121 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Member States shall ensure that, where in an action for damages the existence of a claim for damages or the amount of compensation to be awarded depends on whether - or to what degree - an overcharge was passed on to the claimant, the burden of proving the existence and scope of such pass-on shall rest with the claimin line with the commercial presumption that price increases are passed on down the supply chain, the claimant can benefit from a legal presumption of pass-on under the conditions of paragraph 2. In order to prove these the claimant may reasonably require disclosures from the defendant.
Amendment 123 #
Proposal for a directive
Article 4 – paragraph 1 – point 5
Article 4 – paragraph 1 – point 5
5. ‘injured party’ means anyone who has a claim for damagessuffered harm as a result of anti- competitive behaviour;
Amendment 123 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – introductory part
Article 13 – paragraph 2 – subparagraph 1 – introductory part
Amendment 126 #
Proposal for a directive
Article 4 – paragraph 1 – point 12
Article 4 – paragraph 1 – point 12
12. ‘cartel’ means an agreement and/two or more horizontal competitors concerted practice between two o-ordinating their behaviour within a market to earn rents above those possible under mnoremal competitors aimed ation, or co- ordinating their competitive behaviour on the market and/or influencing the relevant parameters of competitionbehaviour within a market to exclude undertakings operating under normal market conditions from gaining market share, through practices such as, inter alia, the fixing or coordination of purchase or selling prices or other trading conditions, abusive licensing practices, the allocation of production or sales quotas, the sharing of markets and customers, including bid- rigging, restrictions of imports or exports and/or anti-competitive actions against other competitors;
Amendment 130 #
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, describing the undertaking's knowledge of a secret cartel 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; this does not include documents or information that exist irrespective of the proceedings of a competition authority (‘pre-existing information’) or any information given at the request of a competition authority;
Amendment 131 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. The rules laid down in this Chapter shall be without prejudice to the right of an injured party to claim compensation for loss of profits, actual loss, and interest from the time the harm occurred until the compensation in respect of that harm has been paid.
Amendment 132 #
Proposal for a directive
Article 15 – paragraph 1 – point b a (new)
Article 15 – paragraph 1 – point b a (new)
(ba) any relevant results from public competition cases which help to fulfil the criteria in paragraph 2 of Article 13.
Amendment 133 #
Proposal for a directive
Article 4 – paragraph 1 – point 16
Article 4 – paragraph 1 – point 16
16. ‘overcharge’ means any positive difference between the price actually paid andwhen a higher price has been paid due to competition law infringement, calculated by subtracting the price that would have prevailed in the absence of an infringement of competition law from the actual price paid;
Amendment 133 #
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 that the infringement caused harm within the market. The infringing undertaking shall have the right to rebut this presumption.
Amendment 134 #
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 if the claimant is unable to directly prove the amount of harm suffered.
Amendment 138 #
Proposal for a directive
Article 17 a (new)
Article 17 a (new)
Article 17a Consensual dispute resolution Member States shall ensure that attempts are made to facilitate the parties reaching a fair and early settlement through consensual dispute resolution, with such an attempt being mandatory in the case of follow-on actions. Any such obligation, however, should not entail an undue prolongation of proceedings, nor promote the unfair settlement of claims.
Amendment 143 #
Proposal for a directive
Article 5 – paragraph 1 – subparagraph 1
Article 5 – paragraph 1 – subparagraph 1
Member States shall ensure that, where a claimant has presented a reasonablyed justification containing available facts and evidence showing plausible grounds for suspecting that he, or those he represents, has suffered harm caused by the defendant's infringement of competition law, national courts can order the defendant or a third party to disclose evidence, regardless of whether or not this evidence is also included in the file of a competition authority, subject to the conditions set out in this Chapter. Member States shall ensure that courts are also able to order the claimant or a third party to disclose evidence on request of the defendant.
Amendment 144 #
Proposal for a directive
Article 5 – paragraph 2 – point a
Article 5 – paragraph 2 – point a
(a) showprovided a reasoned justification that evidence in the control of the other party or a third party is relevant in terms of substantiating his claim or defence; and
Amendment 145 #
Proposal for a directive
Article 5 – paragraph 2 – point b
Article 5 – paragraph 2 – point b
(b) specified in the reasoned justification either pieces of this evidence or categories of this evidence defined as precisely and narrowly as he can on the basis of reasonably available facts.
Amendment 147 #
Proposal for a directive
Article 5 – paragraph 3 – point c
Article 5 – paragraph 3 – point c
(c) whether the evidence to be disclosed contains confidential information, especially concerning any third parties, and the arrangements for protecting such confidential information; and
Amendment 148 #
Proposal for a directive
Article 5 – paragraph 3 – point d
Article 5 – paragraph 3 – point d
(d) in cases where the infringement is being or has been investigated by a competition authority, whether the request has been formulated specifically with regard to the nature, object or content of such documents rather than by a non- specific request concerning documents submitted to a competition authority or held in the file of such competition authority.; and
Amendment 149 #
Proposal for a directive
Article 5 – paragraph 3 – point d a (new)
Article 5 – paragraph 3 – point d a (new)
(da) the existence of any leniency corporate statements.
Amendment 152 #
Proposal for a directive
Article 5 – paragraph 5
Article 5 – paragraph 5
5. Member States shall take the necessary measures to give full effect to legal privileges and other rights not to be compelled to disclose evidence. 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 competition rules and that documents containing self-incriminating evidence are 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. 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 shall be without prejudice to the rights and obligations of national courts under Council Regulation (EC)1206/2001.
Amendment 159 #
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 ats any time general requirement order a party or a third party to disclose any of the following categories of evidence:leniency corporate statements.
Amendment 160 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
Amendment 165 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
Amendment 167 #
Proposal for a directive
Article 6 – paragraph 2 – introductory part
Article 6 – paragraph 2 – introductory part
2. Member States shall ensure that, for the purpose of actions for damages, national courts can order the disclosure of the following categories of evidence only after a competition authority has closed its proceedings or taken a decision referred to in Article 5 of Regulation No 1/2003 or in Chapter III of Regulation No 1/2003:
Amendment 170 #
Proposal for a directive
Article 6 – paragraph 2 – point b a (new)
Article 6 – paragraph 2 – point b a (new)
(ba) settlement submissions and withdrawn offers.
Amendment 171 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. Disclosure of evidence in the file of a competition authority that doeis not fall into any of the categories listed incovered under paragraphs 1 orand 2 of this Article may be ordered in actions for damages at any time, including evidence that exists irrespective of the proceedings of a competition authority.
Amendment 175 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Member States shall ensure that evidence falling into one of the categories listed in Article 6(1) 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 is not admissible in actions for damages.
Amendment 177 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Member States shall ensure that evidence falling within one of the categories listed in Article 6, paragraph 2 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 is not admissible in actions for damages until that competition authority has closed its proceedings or taken a decision referred to in Article 5 of Regulation No 1/2003 or in Chapter III of Regulation No 1/2003.
Amendment 182 #
Proposal for a directive
Article 8 – paragraph 1 – point b – introductory part
Article 8 – paragraph 1 – point b – introductory part
(b) the destruction of relevant evidence, provided that, at the time of destruction:;
Amendment 183 #
Proposal for a directive
Article 8 – paragraph 1 – point b
Article 8 – paragraph 1 – point b
Amendment 187 #
Proposal for a directive
Article 10 – paragraph 2 – introductory part
Article 10 – paragraph 2 – introductory part
2. Member States shall ensure that the limitation period shall not begin to run beforeon the latest date after an injured party knows, or can reasonably be expected to have knowledge of:
Amendment 188 #
Proposal for a directive
Article 10 – paragraph 2 – point ii
Article 10 – paragraph 2 – point ii
(ii) the qualification of such behaviour as an infringement of Union or national competition law, such as the result of a public action;
Amendment 190 #
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 fivesix years.
Amendment 193 #
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 after the infringement decision has become final, when a case can no longer be appealed or reviewed, or the proceedings are otherwise terminated.
Amendment 198 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Member States shall ensure that an undertaking which has been granted immunity from fines by a competition authority under a leniency programme shall be liable to injured parties other than its direct or indirect purchasers or providers only when such injured parties show that they are unait is not reasonably possible to obtain fullappropriate compensation from the other undertakings that were involved in the same infringement of competition law.
Amendment 203 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
1. Member States shall ensure that the defendant in an action for damages can invoke as a defence against a claim for damages the fact that the claimant passed on the whole or part of the overcharge resulting from the infringement. TWithout prejudice to the commercial presumption that price increases are passed on down the supply chain, the burden of proving that the overcharge was passed on shall rest with the defendant who may reasonably require disclosures from the claimant.
Amendment 206 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Member States shall ensure that, where in an action for damages the existence of a claim for damages or the amount of compensation to be awarded depends on whether - or to what degree - an overcharge was passed on to the claimant, without prejudice to the commercial presumption that price increases are passed on down the supply chain, the burden of proving the existence and scope of such pass-on shall rest with the claimant who may reasonably require disclosures from the defendant.
Amendment 211 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 1 – point c
Article 13 – paragraph 2 – subparagraph 1 – point c
(c) he purchased the goods or services from a direct purchaser that were the subject of the infringement, or purchased goods or services derived from or containing the goods or services that were the subject of the infringement.
Amendment 215 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. The rules laid down in this Chapter shall be without prejudice to the right of an injured party to claim compensation for loss of profits, actual loss, and interest from the time the harm occurred until the compensation in respect of that harm has been paid.
Amendment 218 #
Proposal for a directive
Article 15 – paragraph 1 – point b a (new)
Article 15 – paragraph 1 – point b a (new)
(ba) any relevant results from public competition cases which help to fulfil the criteria in paragraph 2 of Article 13.
Amendment 220 #
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 that the infringement caused harm within the market. The infringing undertaking shall have the right to rebut this presumption.
Amendment 222 #
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 if the claimant is unable to directly prove the amount of harm suffered.
Amendment 225 #
Proposal for a directive
Article 17 a (new)
Article 17 a (new)