Activities of Sylvana RAPTI related to 2013/0185(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union
Amendments (18)
Amendment 18 #
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, without prejudice to the kind of interest recognised under national law. 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. This Directive should not require Member States to introduce collective redress mechanisms for the enforcement of Articles 101 and 102 of the Treaty.
Amendment 22 #
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, leniency corporate statements should be excepted from disclosure of evidence.
Amendment 26 #
Proposal for a directive
Recital 24
Recital 24
(24) Making a claim for damages, or the start of an investigation by a competition authority, entails a risk that the undertakings concerned may destroy or hide evidence that would be useful in substantiating an injured party’s claim for damages. To prevent the destruction of relevant evidence and to ensure that court orders requesting disclosure are complied with, courts should be able to impose sufficiently and effectively deterrent sanctions. Insofar as parties to the proceedings are concerned, the risk of adverse inferences being drawn in the proceedings for damages can be a particularly effective sanction and can avoid delays. Sanctions should also be available for non-compliance with obligations to protect confidential information and for abusive use of information obtained through disclosure. Similarly, sanctions should be available if information obtained through access to the file of a competition authority in the exercise of one’s rights of defence in relation to investigations of that competition authority is used abusively in actions for damages.
Amendment 33 #
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 or other hardcore by object infringements, the infringement has caused harm, in particular via a price effect. Depending on the facts of the case this means that the cartelhardcore infringement 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 necessary evidence to prove the harm.
Amendment 34 #
Proposal for a directive
Recital 36
Recital 36
(36) In the absence of Union rules on the quantification of harm caused by a competition law infringement, it is for the domestic legal system of each Member State and for the national courts to determine what requirements the injured party has to meet when proving the amount of the harm suffered, how precisely he has to prove that amount, the methods that can be used in quantifying the amount and the consequences of not being able to fully meet the set requirements. However, these domestic requirements should not be less favourable than those governing similar domestic actions (principle of equivalence), nor should they render the exercise of the Union right to damages practically impossible or excessively difficult (principle of effectiveness). Regard should be had in this respect to any information asymmetries between the parties and to the fact that quantifying the harm means assessing how the market in question would have evolved had there been no infringement. This assessment implies a comparison with a situation which is by definition hypothetical and can thus never be made with complete accuracy. It is therefore appropriate to give national courts the power to estimate the amount of the harm caused by the competition law infringement. The courts should be assisted in this rather complex task by clear, simple, comprehensible, easily applicable and sufficiently updated guidance issued by the Commission.
Amendment 35 #
Proposal for a directive
Recital 37
Recital 37
(37) Injured parties and infringing undertakings should be encouraged to agree on compensating the harm caused by a competition law infringement through consensual dispute resolution mechanisms, such as out-of-court settlements, arbitration and mediation. Where possible, such consensual dispute resolution should cover as many injured parties and infringing undertakings as possible. The provisions regarding collective redress shall respectively apply in the context of collective Alternative Dispute Resolution (ADR) mechanisms. The provisions in this Directive on consensual dispute resolution are therefore meant to facilitate the use of such mechanisms and increase their effectiveness.
Amendment 39 #
Proposal for a directive
Article 2 – paragraph 3
Article 2 – paragraph 3
3. Member States shall ensure that injured parties can effectively exercise their claims for damages and obtain actual enforcement of redress.
Amendment 41 #
Proposal for a directive
Article 4 – paragraph 1 – point 3
Article 4 – paragraph 1 – point 3
3. ‘action for damages’ means an action under national law by which an injured party brings individual or jointly a claim for damages before a national court; it may also covers actions by which someone acting on behalf of one or more injured parties brings a claim for damages before a national court, where national law provides for this possibility;
Amendment 45 #
Proposal for a directive
Article 4 – paragraph 1 – point 15
Article 4 – paragraph 1 – point 15
Amendment 62 #
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:leniency corporate statements.
Amendment 63 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
Amendment 65 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
Amendment 69 #
Proposal for a directive
Article 8 – paragraph 1 – introductory part
Article 8 – paragraph 1 – introductory part
1. Member States shall ensure that national courts caneffectively impose sanctions on parties, third parties and their legal representatives in the event of:
Amendment 70 #
Proposal for a directive
Article 8 – paragraph 1 – point b – point iii
Article 8 – paragraph 1 – point b – point iii
(iii) the destroying party knew or could reasonably have inferred that the evidence was of relevance to pending or prospective actions for damages brought by it or against it;
Amendment 75 #
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 onetwo years after the infringement decision has become final or the proceedings are otherwise terminated.
Amendment 85 #
Proposal for a directive
Article 13 – paragraph 2 – subparagraph 2
Article 13 – paragraph 2 – subparagraph 2
Member States shall ensure that the court has the power to estimate which share of that overcharge was passed on. The courts should be assisted in this rather complex task by clear, simple, comprehensible, easily applicable and sufficiently updated guidance issued by the Commission.
Amendment 88 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Member States shall ensure that, in the case of a cartelhardcore by object infringement, it shall be presumed that the infringement caused harm. The infringing undertaking shall have the right to rebut this presumption.
Amendment 93 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
The Commission shall review this Directive and report to the European Parliament and the Council by [...] at the latest [to be calculated as 5 years after the date set as the deadline for transposition of this Directive.] The Report shall be accompanied by a coherent post-implementation assessment of the functioning of collective redress and collective ADR mechanisms within the competition sector, with particular evaluation of the essence of widening the application of such mechanisms in other sectors as well or establishing such a mechanism at EU level, to secure effective consumer protection and a balanced operation of the internal market.