Law makes it easier for cartel victims to sue.
Cartel victims across Europe will find it easier to sue suppliers that collude to fix prices and share markets under new rules adopted by MEPs last week. But overall, the European Commission and big business may be the real winners of the ten-year saga that led to the new law.
The Commission will be happy that the rules largely protect it from having to disclose the most sensitive documents that it gathers during antitrust investigations – something that had been urged by victims’ advocates, to assist damages claims.
Similarly, businesses will be happy that the European Union law does not make it easier for consumers to group together and sue for the surcharges paid on TVs, bathroom fittings or washing powder as a result of a cartel, on the model of the United States’ class actions.
After a decade of debate within the Commission, Joaquín Almunia, the European commissioner for competition, published a proposal in June 2013 – though only after Viviane Reding, the European commissioner for justice, had stripped it of its class-action aspects.
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The vote, taken last Thursday (17 April), confirms a deal struck between MEPs and member states last month. Under the new rules, judges will gain powers to order defendants to disclose documents to the victims. Victims will have one year to file a claim following the decision of a competition authority, which will be binding on courts in that member state. At present, there are wide divergences between member states in terms of judges’ powers, time limits and evidential rules.
“There are a number of helpful elements in the proposal, but it stops short of what is already possible in the United Kingdom, the Netherlands and Germany,” said Till Schreiber, a director at Cartel Damages Claims, a company that buys and enforces antitrust claims. “The rules are more targeted at protecting authorities’ leniency programmes than at bolstering victims’ rights.”
Indeed, the Commission had become increasingly concerned in recent years that the European Court of Justice might give victims access to the Commission’s antitrust case files, in particular the highly incriminating corporate statements made by companies seeking leniency. Such a move would remove much of the attraction from the Commission’s immunity programme, which has led to an exponential increase in the number of successful cartel cases – the Commission imposed fines totalling almost €2 billion in 2013.
Under the final deal, national courts are prevented from disclosing companies’ corporate statements and their settlement submissions. MEPs had wanted to give judges the ability to allow disclosure in exceptional circumstances.
The new law has cleared up “legal uncertainty” over victims’ access to leniency statements, said Bernd Meyring, a competition partner at Linklaters, a law firm.
The proposal, he says, “will strengthen the leniency programme” by giving companies that apply for leniency certain legal safeguards against damages claims that other participants in the cartel will not enjoy.