EU Antitrust Law

Bucharest, 2-3 March 2020Cooperation between Private and Public

enforcement in the Damages Directive and beyond:

Paolo Caprile[AD/2020/01]

With financial support from the Justice

Programme of the European Union

Presentation scheme

• Introduction.

• Cooperation principle.

• Effectiveness of both public and private enforcement.

• Conclusions.

Introduction

• Regulation (EC) No 1/2003

• The Damages Directive (Directive 2014/104/EU)

• Which goals?

Directive 2014/104/EU: goals• Achieving deterrence (no punitive damages – art. 3 . para. 3)

• Coordination between private and public enforcement

▪ Already affirmed in Reg. (EC) 1/2003 [art. 15] – European Commission andNational Competition Authority (NCA) as amicus curiae

➢ The UberBlack case: «The act by which the Authority submits writtenobservations to the Court fulfils the need for cooperation between theAuthority and the Court; it complies with the protection of a publicinterest and doesn’t support any Party of the proceedings» (RomeDistrict Court – Specialized Division for Enterprise, Ord. 26/05/2017).

▪ See Reg. (EC) 1/2003 [art. 16] 1. When national courts rule onagreements, decisions or practices under Article 81 or Article 82 of theTreaty which are already the subject of a Commission decision, theycannot take decisions running counter to the decision adopted by theCommission. They must also avoid giving decisions which wouldconflict with a decision contemplated by the Commission inproceedings it has initiated. To that effect, the national court may assesswhether it is necessary to stay its proceedings. This obligation iswithout prejudice to the rights and obligations under Article 234 of theTreaty.

• Proportionality in order to secure the effectiveness of the public enforcement

Access to evidences phase

• A very quick comparative perspective

• If there is semiplena probatio of the alleged facts, Member States shall ensure that national courts are able to order the disclosure of specified items of evidence or relevant categories of evidence circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts in the reasoned justification.

• In such occurrence National courts should consider the legitimate interests of all the parties, the scope and cost of the disclosure, whether it concerns confidential information (standards that implement the proportionality principle)

• Wider disclosure of evidence are allowed

5

Instruments of cooperation between NCAs and national courts (I):

• Chapter II «Disclosure of evidence in NCA files»

• Assessment on information included in the «black list» [Art. 6para. 7]:

Leniency Statements – Settlement submissions

Some have argued that is possible to disclose documents of the leniencyfile (except for statements) with some mitigations:• The information specifically prepared for the proceedings may be

disclosed only after a NCA has closed its proceedings [see grey list, art.6 para. 5].

• Disclosure from the NCA as extrema ratio, only where no party orthird party is reasonably able to provide that evidence [Art. 6 para. 10].

Instruments of cooperation between NCAs and national courts (II):

• Chapter II «Disclosure of evidence»: prerequisite

• Proportionality of the order to disclose information [art. 6 para. 4]:

• Specific request with regard to the nature, subject matter or contents ofdocuments;

• Relating to an action for damages before a national court;• Need to safeguard the effectiveness of the public enforcement.

• Observations to the national court on the proportionality of disclosurerequests [Art. 6 para. 11]

• NCA acts on its own initiative• Considerandum 30 of the Directive states that Member States should be

able to set up a system whereby a competition authority is informed ofrequests for disclosure of information

Instruments of cooperation between NCAs and national courts (III)

Chapter V «Quantification of harm»

• The role of the NCA with regard to the quantification ofharm [Art. 17 para. 3]

• It may have a lack of neutrality. In this regard it cannot replacethe judge and/or the independent technical advisor that aresuper partes.

• Only the courts are empowered to quantify the harm.• NCA may provide guidance on quantum [Recital 46] and give

its assistance in pointing out the most suitable economicmethods and techniques to quantify the damages.

• Critical aspects

Enhancing the (private and public) enforcement power (I)

By easing the burden of proof: infringement found by NCA’s finaldecisions or by a review court are binding on the national court[Art. 9]

• Differences between article 16 of Reg. 1/2003 and Article 9 ofthe Directive

• What about commitment decisions?

Enhancing the (private and public) enforcement power (II)

• By suspending (or interrupting) the limitation period if aNCA takes action in order to investigate or proceed [Art.10(4)]

• 2. Limitation periods shall not begin to run before the infringement ofcompetition law has ceased and the claimant knows, or can reasonably beexpected to know: (a) of the behaviour and the fact that it constitutes aninfringement of competition law; (b) of the fact that the infringement ofcompetition law caused harm to it; and (c) the identity of the infringer.

• 3. Member States shall ensure that the limitation periods for bringing actionsfor damages are at least five years.

• 4. Member States shall ensure that a limitation period is suspended or,depending on national law, interrupted, if a competition authority takesaction for the purpose of the investigation or its proceedings in respect of aninfringement of competition law to which the action for damages relates. Thesuspension shall end at the earliest one year after the infringement decisionhas become final or after the proceedings are otherwise terminated.

Enhancing the (private and public) enforcement power (III)

• Relevance of leniency programm and settlement agreements:limitation to the disclosure of evidence [Art. 6(7)] - derogation from jointand several liability [Art. 11(4)]

• 1. Member States shall ensure that undertakings which have infringed competitionlaw through joint behaviour are jointly and severally liable for the harm caused bythe infringement of competition law; with the effect that each of thoseundertakings is bound to compensate for the harm in full, and the injured partyhas the right to require full compensation from any of them until he has been fullycompensated. […]

• 4. By way of derogation from paragraph 1, Member States shall ensure that animmunity recipient is jointly and severally liable as follows: (a) to its direct orindirect purchasers or providers; and (b) to other injured parties only where fullcompensation cannot be obtained from the other undertakings that were involvedin the same infringement of competition law

Conclusions

• Effective antitrust damages actions must be approached

• in order to secure a balance between over and under-deterrence

• without undermining the effectiveness of current level of public enforcement

• Implementation of an information mechanism

• A more specific guidance and coordination on quantificationof harm

• Fostering the process of specialization of the judges

Conclusions (II)Fostering the process of specialization of the judges

Some hints from the Italian experience

2003. Specialised Intellectual Property Divisions

(settled in the Appeal Courts of the main Italian cities)

2012. Specialized Divisions for Enterprise

(at least one for each Italian region at Appeal Courts)

2017. Specialized Divisions for Enterprise

also specialized in antitrust damages litigations

(Milan, Rome, Naples)

Cooperation between Private and Public enforcement in the Damages

Directive and beyond

Thank you for your attention.

Questions for seminar assessments

Yes or no questions

• According to Directive 2014/104/EU (so called Antitrust Damages Directive) can the judge order to disclose the leniency statements made by a party before the National Competition Authority (“NCA”)?

• According to the Antitrust Damages Directive, if an antitrust infringement is ascertained by NCA’s final decisions or by a review court, are these decisions binding on the national courts?

• According to the Antitrust Damages Directive, is the limitation period related to an antitrust suit suspended if a NCA takes action in order to investigate or proceed with respect to the same conducts on which the said antitrust suit is grounded?

Open questions

• Which instruments are given by the Antitrust Damages Directive for achieving coordination between National Competition Authorities and National Courts?

• Which documents fall under the so called black list and cannot be disclosed by the NCAs, according to art. 6(6) of the Antitrust Damages Directive?

• Which role could the NCA play with regard to the quantification of harm by the judges in antitrust suits?

With financial support from the Justice

Programme of the European Union

Thank you!