Brussels, 3rd April 2008
Antitrust: Commission presents policy paper
on compensating consumer and business victims of competition
The European Commission has published a White Paper
suggesting a new model for achieving compensation for consumers and businesses
who are the victims of antitrust violations (breaches of EC Treaty rules on
restrictive business practices and abuse of dominant market positions). At
present, there are serious obstacles in most EU Member States that discourage
consumers and businesses from claiming compensation in court in private
antitrust damages actions. The White Paper includes suggestions to make damages
claims by victims more efficient, whilst ensuring respect for European legal
systems and traditions. The model outlined by the Commission is based on
compensation through single damages for the harm suffered. The White Paper's
other key recommendations cover collective redress, disclosure of evidence and
the effect of final decisions of competition authorities in subsequent damages
actions. The recommendations balance rights and obligations of both the claimant
and the defendant and include safeguards against abuses of litigation.
Interested parties are invited to comment on the recommendations until 15 July
2008. The Commission will then reflect on concrete measures in the light of
responses to the White Paper.
European Competition Commissioner Neelie Kroes said "The suggestions in this
White Paper are about justice for consumers and businesses, who lose billions of
euros each and every year as a result of companies breaking EU antitrust rules.
These people have a right to compensation through an effective system that
complements public enforcement, whilst avoiding the potential excesses of the US
Effective enforcement of EC Treaty competition rules prohibiting restrictive
business practices and the abuse of dominant market positions (Articles 81 and
82) requires that victims of competition law infringements – be they
consumers or businesses – have a right to compensation for the harm they
Ensuring effective access to justice for victims of competition law
infringements requires joint efforts from the EU and Member States.
The White Paper presents a set of recommendations to ensure that victims of
competition law infringements have access to truly effective mechanisms for
claiming full compensation for the harm they have suffered. These
recommendations offer a balanced solution to the current often inefficient
compensation systems in place, while avoiding over-incentives that could lead to
litigation excesses as perceived in some countries outside Europe.
The key recommendations in the White Paper are as follows:
- Single damages: the Commission suggests single damages rather than
multiple damages. This means full compensation, including compensation of the
actual loss due to e.g. an anti-competitive price increase or the loss of profit
as a result of any reduction in sales. Compensation of the real value of the
loss suffered also implies a right to interest.
- Collective redress: in particular consumers and SMEs with small value
claims need better access to justice and should have the possibility to regroup
their claims and bring actions via suitable representatives. However, safeguards
to avoid that such actions would lead to unfounded claims need to be put in
place. In the field of antitrust, the Commission therefore recommends allowing
only representative actions led, for example, by recognised consumer groups and
actions in which victims can choose to participate, as opposed to class actions
run by law firms for an unidentified number of claimants.
- Disclosure: to allow judges to get the full picture of a case,
parties should not be permitted to keep relevant evidence to themselves. The
disclosure of relevant evidence, under the control of the judge, should help to
ensure a fair case, where both parties have equivalent access to evidence.
However, the Commission does not recommend more far-reaching options, such as an
automatic right to discovery, which could lead to procedural abuses, where
defendants settle merely to avoid the heavy costs that excessive wide-ranging
discovery, can create.
- Evidence of final decisions: to avoid the time and cost of
re-litigation, the Commission recommends, as is already the case for Commission
decisions, that final infringement decisions of Member States' competition
authorities should be considered sufficient proof of an infringement in
subsequent actions for damages.
Although there are recent signs of
improvement in some Member States, over the past decades very few damages claims
were brought in Europe.
In its 2005 Green Paper (see IP/05/1634
the Commission found that the traditional rules and procedures on civil
liability in force in most Member States appear to be inappropriate for
antitrust damages cases. These cases require a complex factual and economic
The White Paper can be found at:
on the White Paper can be sent until 15 July 2008 to
See also MEMO/08/216.