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By John Cassels
Encouraging private enforcement of the EU antitrust rules (by encouraging those harmed by cartels and other infringements to pursue actions for damages) has been on the EU Commission's agenda for almost a decade. Throughout this period, there has been a lot of discussion and debate about how to balance: (i) the desire to protect the immunity/leniency whistle-blowing programme; and (ii) the need for disclosure of incriminating material to enable private damages actions, all within the limits of EU competence. This week, we are updating on the Commission's private enforcement proposals.
In June, a draft Directive was issued: "certain rules governing actions for damages under national law for infringements of the competition law provisions of Member States and the EU". The goals of the draft Directive are as follows:
The issue of collective redress (i.e. class actions) has been omitted from the draft Directive. Concerns about facilitating US-style class actions mean that there is currently no consensus on what the proposal should be. The Commission did, however, issue a Recommendation in which it advocates an ‘opt-in' system, with no contingency fees and no punitive damages.
The draft Directive is currently before national governments and the European Parliament, both of which can propose changes. The Council, Commission and Parliament must all agree on the final version of the text for it to become law.
If you would like to discuss this issue, please do not hesitate to contact John Cassels at firstname.lastname@example.org.