On December 14, 2020, six years after the adoption of the Damages Directive,[1] the Commission published a report[2] analyzing its implementation across Member States.[3] The Damages Directive was introduced to harmonize the procedural rules for antitrust damages actions.

The Commission’s key observations were as follows:

  • Insufficient experience concerning the implementation of the Damages Directive. 21 Member States implemented the directive only after the transposition deadline of December 27, Also, court proceedings in Member States are time consuming, with many actions for damages, based on the implementing rules of the Damages Directive, still pending. The Commission referred to a recent study[4] which found there are approximately 13 years from the purchase of the product or service, that has been subject to an antitrust infringement, and the first civil judgment.
  • The Damages Directive sparked a significant rise in the number of antitrust damages Such actions are considerably more widespread in the EU than previously, when damages actions were concentrated in three Member States (Germany, the Netherlands, and the UK).[5]
  • Member States had transposed the Damages Directive’s substantive rules in a broadly consistent manner. Several provisions had been implemented verbatim or almost verbatim by the majority of the Member States, particularly in relation to disclosure, the principle of full compensation, and the passing-on of overcharges. A small degree of divergence exists with regard to the rules governing limitation periods (Cyprus, Ireland and Latvia going beyond the minimum 5-year period envisaged by the Damages Directive) and the quantification of harm (with some Member States setting out in national legislation the exact overcharge level that cartels are presumed to cause – 10% in Latvia and 20% in Hungary and Romania).

The report also discusses key Court of Justice rulings and the Commission’s main actions to facilitate the effective implementation of the Damages Directive, including the adoption of the Passing-on Guidelines[6] and the Confidentiality Communication[7] relating to the protection of confidential information in damages proceedings.

[1]      Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 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, OJ L 349, 5.12.2014, p. 1.

[2]      Available at https://ec.europa.eu/competition/antitrust/actionsdamages/report_on_damages_directive_implementation_en.pdf. Article 20(1) of the Damages Directive requires the Commission to review the effects of the implementation of Directive by December 27, 2020, and, if appropriate, submit a legislative proposal.

[3]      Commission Staff Working Document, Report from the Commission to the European Parliament and the Council on the implementation of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 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, available at https://ec.europa.eu/competition/antitrust/ actionsdamages/report_on_damages_directive_implementation.pdf.

[4]      Jean-François Laborde, Cartel damages actions in Europe: How courts have assessed cartel overcharges (2019 ed.), November 2019, Concurrences N° 4-2019, Art. N° 92227, page 7.

[5]      Commission Staff Working document accompanying the proposal for the Damages Directive {COM(2013) 404 final} {SWD(2013) 204 final}, paragraph 7; according to a study cited by the Commission’s report, the cumulative number of cases, by date of first judgment, was approximately 50 at the beginning of 2014 and, after a sharp increase, amounted to 239 in 2019.

[6]      Communication from the Commission – Guidelines for national courts on how to estimate the share of overcharge which was passed on to the indirect purchaser, C/2019/4899, OJ C 267, 9.8.2019, pp. 4–43.

[7]      Communication from the Commission – Communication on the protection of confidential information by national courts in proceedings for the private enforcement of EU competition law, C/2020/4829, OJ C 242, 22.7.2020, pp. 1–17.