The 2014 Directive on Private Enforcement—Looking Back and Looking Forward

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Andreas Reindl, Jan 21, 2015

The Directive on Private Enforcement was formally adopted in late 2014 after a smooth and largely uncontroversial legislative process, and less than two years after the European Commission published its initial proposal. The quick adoption of the final text may have been unexpected, given the Directive’s impact on national civil procedure laws that Member States tend to guard jealously as their national prerogative. That there was such a broad consensus is a sign of the Commission’s successful efforts during the past decade to promote a three-step narrative: private competition law enforcement was a weak spot in European competition law, more robust private enforcement was a necessary part of a well functioning competition regime, and the goal could be accomplished only through action on the EU level. Not everyone had been convinced by the narrative, but it was apparently persuasive for European lawmakers and Member States.

There have been some changes—improvements, in most cases—to the Commission’s proposal but no fundamental departure from what the Commission had initially envisaged. The Directive continues to express the same “the plaintiff must win” philosophy as the Commission proposal, and the criticism of some Member States that the Directive does not enough to ensure the compensation of victims is difficult to understand.

When the European Commission published its proposal in 2013, CPI organized a symposium on the proposed Directive. This current contribution provides an opportunity to return to some of the issues addressed in the 2013 symposium and assess, in light of the concerns that were expressed then, the Directive’s final provisions and their likely impact. In this exercise, I will provide short comments on (i) access to evidence; (ii) the binding nature of competition authority decisions; (iii) indirect purchaser actions; and (iv) settlements, with a focus in particular on those provisions that have changed since the Commission’s initial proposal.