In November 2014, the European Parliament and the Council signed the directive 2014/104/EU, which introduced uniform rules on the possibility for undertakings and consumers of initiating judicial actions for damages arising from violations of antitrust rules, that the EU Member States will be required to transpose into national laws within December 2016.

Despite the legislative process has been relatively fast, as between the Commission proposal and the conclusion of the co-decision procedure has passed little over a year, the adoption of a set of common rules on private enforcement of antitrust law was long awaited by the European Community. The Commission, in effect, had already announced this need in the Green Paper of 2005 and in the White Paper of 2008, setting up a heated debate among experts that lasted until November 2014.

Inter alia, an earlier proposal of the Commission was abandoned because of a disagreement among the commentators on the introduction of tools that are typical of the US legal system, in particular the so-called class actions. Thus, the Directive recently entered into force abandoned such approach, opting for an even more "soft" harmonisation: the Commission adopted a Recommendation (2013/396/EU), which refers to individual Member States to establish, within July 2015, national collective redress mechanisms.

The clear objective of the Directive in analysis is to effectively implement the compensation claims of those who suffer harm as a result of a violation of the prohibitions of anti-competitive agreements and of abuse of dominant position, respectively covered by Articles 101 and 102 TFEU. The Court of Justice has repeatedly had occasion to stress that the right to compensation for antitrust offences is included in the scope of Community rights that benefit of direct effect in the Member States, even in the absence of a specific internal transposition. Therefore, the claims for damages must be filed before national courts, but at the same time it is crucial to provide for a certain level of harmonisation among the various legislations.

In order to achieve the abovementioned objective, it was necessary to adopt protection conditions to be applied uniformly throughout the Community, in order to prevent that the substantial heterogeneity among national regulations will end up to lead to distortions of competition in the internal market, as well as inequalities among citizens and companies of different nationalities.

 

This smoothing approach is made evident, for instance, by the innovative rules on evidence: the European legislature intended to facilitate the disclosure of the evidence items and its access by the injured party, who generally does not have available the documents necessary to effectively prove the harmful effects that resulted from the anti-competitive offence.

The Directive provides that, following a justified request by the injured party, as long as it is based on facts and evidence reasonably available and sufficient to support the plausibility of her claim for damages, the national courts may order the defendant or a third party, such as the Antitrust Authority which led the investigations, to disclose relevant evidence that such subjects shall possess. However, there are delicate limits to such disclosure, as it comes into play the competing interest of the undertakings and of the whole market: in addition to the general compliance with the principle of proportionality, in no case access to documentary evidence shall extend to any statements made by the involved undertakings in the field of leniency programs or proposed settlements, which, as "self-incriminating" statements, would otherwise be discouraged, undermining a key pillar of the public enforcement of antitrust laws.

 

Still on the theme of evidence, the Directive solved another controversial issue, concerning the value to be attributed in the civil proceedings to infringement decisions adopted by national competition authorities, in respect of which it should be distinguished between two different hypotheses. In the event of a decision which has become irrevocable, its finding of a violation shall have value of "full proof" and it can no longer be challenged before the civil courts. If instead the decision, although final, was adopted by the Antitrust Authority of a Member State other than that in which the claim was filed, that decision shall not be irrefutable in the civil proceeding, but still it will constitute at least "prima facie" evidence of the infringement, and it shall be evaluated along with other evidence items advanced by the parties.

It should be noted that the Directive introduces a presumption, albeit rebuttable, that harm exists every time the anti-competitive behaviour has consisted in the creation of a "cartel".

 

If the offense is based on a conduct jointly adopted by a plurality of undertakings, the latter shall be held jointly and severally liable towards the victim, who will be therefore entitled to claim the payment of the entire compensation from each company in order to get the total relief.

It should be also pointed out that the Directive provides for a preferential regime for small and medium-sized enterprises, which will be held liable only towards their own direct and indirect purchasers, although under certain conditions and without prejudice to some derogations. A similar favourable treatment is also granted when the offender received immunity from fines under a leniency program. In such case, the undertaking will be held liable only for damage caused to its direct or indirect customers or suppliers.

 

A problematic aspect of antitrust damages actions is shown in practice by the frequent difficulties to correctly allocate the damage along the production chain, as the enterprises that at first suffer the negative consequences of the anti-competitive behaviour tend to pass the damage on "downstream". For instance, the overcharge imposed on raw materials by a cartel of supplier companies, is generally “passed on” by distributors to their customers through a corresponding increase in the final price. Thus, the Directive allows the offender undertaking, summoned to pay the compensation, the right to plead that the plaintiff enterprise passed the damage on other subjects. The burden of proof of such transfer of the damage is imposed on the defendant, who might in this way be released from liability. The objective pursued by the European legislature is to prevent the granting of compensations exceeding actual harm, as well as to protect the indirect purchaser, who is often the only person who actually suffers damage in her economic sphere.

 

In any case, the burden of proof to be met in order to take action for the quantification of damages shall not be in such a manner to render practically impossible or excessively difficult the exercise of the right to compensation and however the Directive provides for the court to have the power to quantify the damages on an equitable basis.

 

These are the most important new features introduced by Directive 2014/104/EU, which shall be held broadly satisfactory. Now it is up to the national legislators to properly implement the new legislation, and it will be up to the civil courts to apply it in the most appropriate ways.

It is hoped for the Italian justice system to take advantage of such opportunity in order to improve the effectiveness of the system of private enforcement of antitrust rules, also thanks to the precious collaboration of the AGCM (i.e. the Italian Antitrust Authority).