By: Christian Kersting (D’Kart)
The Competition Policy Agenda of the Federal Ministry for Economic Affairs and Climate Action (BMWK) until 2025 was presented in a ten-item paper “for sustainable competition as a cornerstone of the social-ecological market economy” dated February 21, 2022. The ninth item aims at strengthening EU competition policy and increasing transparency. One aspect envisaged is the reform of the Cartel Damages Directive 2014/104/EU:
“[…] we want to strengthen cartel prosecution through an initiative to better protect immunity recipients and reform the EU Cartel Damages Directive.”
In the following, I will consider areas in which the Cartel Damages Directive needs to be reformed. The Commission’s report that was to be submitted to the European Parliament and the Council by December 27, 2020, in accordance with Article 20 (1) of the Directive, does not provide any guidance in this regard. In its report of December 14, 2020, the Commission essentially states that it is still too early for an evaluation in view of the long implementation periods and the fact that there is not yet sufficient case law. At least from a German perspective one has to disagree. Even if there is indeed still a lack of ample case law, a certain need for reform can already be identified. The initiative mentioned by the BMWK to improve the protection of immunity recipients is just one example. Not in every case does an existing need for reform require an amendment of the directive; in some cases, an adjustment of national law would suffice. However, the aim of harmonization argues in favor of adopting improved provisions in a uniform manner throughout Europe. In the following, some suggestions for an improvement of private antitrust enforcement will be made, which can be implemented by a reform of the directive or (within the framework of the existing directive) of national law:
Relationship between primary law and the Directive
From the beginning, the relationship between primary law and the Directive or national law, respectively, was difficult to determine. The discussion about the protection of leniency documents, which are awarded absolute protection under Art. 6(6) of the Directive, while the ECJ in DonauChemie had just rejected such absolute protection, demonstrates this tension (see already here). The situation is further complicated by the fact that the boundaries between European primary law and national law are blurred by the ECJ’s decisions in the Skanska and Sumal cases. In both decisions, the ECJ derived at least the liability of the undertaking and all of its constituent parts, but also other elements of the cartel damages claim directly from Art. 101 TFEU. It is an open question how this fits in with the Directive and national law. The correct understanding would be to continue to consider, the claim for damages as a claim under national law with primary law only requiring a specific result. In the understanding of the ECJ in Sumal primary law would even enforce this result directly, should the national law not be able to…
