Europe’s Long March Towards Antitrust Damages Actions

The rather long and bumpy road towards a minimum level of harmonization of substantive rules and procedures for class actions continues with the European Commission’s recent launch of a public consultation on collective redress (the “Public Consultation”), and public hearings on the matter on April 5, 2011. This followed a Joint Information Note of Vice-Presidents Almunia and Reding and Commissioner Dalli on the need for a coherent European approach to collective redress (the “Joint Note”).These documents discuss the possibility of certain forms of class actions in areas that extend beyond EU and national competition laws, including, in particular, consumer protection laws.

The Public Consultation and Joint Note may also give a jolt of life to more specific initiatives in the area of competition law, and plaintiff recovery in cartel cases in particular. Here, too, the EU has charted a rather languid course with no clear end-point in sight. Key initiatives include:

• An EU Commission Green Paper in 2005 on Damages Actions for Breach of the EC antitrust rules.
• An EU Commission White Paper on Damages Actions for Breach of the EC antitrust rules, including an accompanying Commission Staff Working Paper and Impact Assessment Report. The White Paper suggests specific policy options and measures that would help giving all victims of EU antitrust infringements access to effective redress mechanisms so they can be fully compensated for the harm they suffered.
• In parallel the EU Commission has sponsored various studies on the quantification of harm caused by infringements of the EU antitrust rules. These include a 2004 study, a further 2007 study on making damages actions more effective in the EU, and a detailed 2009 study by Oxera, an economics consultancy, on more precise quantification methodologies. Following the publication of the 2009 study, the Directorate-General for Competition organized a workshop with external economists to discuss a range of issues concerning quantification of antitrust harm in actions for damages.
• In 2009 a draft EU Directive intended to legislate for a minimum level of common procedures for private damages actions received unofficial circulation among the antitrust community. In the meantime, matters had largely fallen into abeyance until the recent Public Consultation and Joint Note.