Member Article

Antitrust rules are provided for by articles 81 and 82 EC Treaty, which ban restrictive business practices and abuses of dominant positions. These articles are applied both by the European Commission and by the national competition authorities. The mentioned articles may also be applied by the national courts in civil disputes, through which the agreements or decisions can be declared void, injunctive relief can be adopted, and compensation can be awarded to those who have suffered a loss caused by an infringement of the antitrust rules. On September 20, 2001, the European Court of Justice held that “the full effectiveness of Article 85 [81] of the Treaty and, in particular, the practical effect of the prohibition laid down in Article 85(1) [81(1)] would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition.” It also took the view that actions for damages could make a significant contribution to the maintenance of effective competition in the Community, but recalled that in the absence of Community rules governing the matter, it should be for the domestic legal system of each Member State to designate the courts having jurisdiction and to lay down the detailed procedural rules governing the judicial disputes at issue1. Further to this judgment, the European Commission launched a tender for a comparative study on the national regulations applicable to such actions for damages, which came to be published in 2004. This study, for which PLMJ prepared the Portuguese chapter, was the basis for the preparation of the Green Paper on damages actions for breach of the EC antitrust rules (the “Green Paper”2), which identifies the main obstacles to an efficient system of the actions for damages, and provides for several options to solve such difficulties. According to the European Commission, private actions for damages have several advantages for companies and consumers since, in the first place, they allow the victims of illegal anticompetitive behavior to be compensated for losses suffered. Moreover, courts will be able to address a specific competition issue in the context of a broader commercial dispute, and will always have to hear cases brought before them, while administrative authorities have discretion to investigate or not a particular case. The European Commission points to other advantages of the actions for damages, such as their role of deterrence against infringements, their contribution for the development of a “competition culture” and for the awareness of the relevant rules and, in special, their utility in fulfilling the gaps resulting from the fact that the Commission and the national competition authorities do not have the time or the resources to deal with all the cases of anticompetitive behaviour3. In this sense, account must be taken of the fact that the actions for damages are not limited to those cases where a previous declaration of infringement by a competition authority exists (follow-on actions), but can also be brought where no such decision has been taken (stand-alone actions). The Green Paper deals, amongst others, with issues such as (i) access to evidence, since this is one of the major obstacles of the actions for damages, as evidence is often held by the party committing the infringement; (ii) the need for a fault requirement, or, on the contrary, the sufficiency of the proof of the infringement (strict liability); (iii) the definition of damages (compensatory nature or recovery of the amount illegally gained by the infringer) and the method used for calculating its quantum; (iv) the possibility for bringing collective actions; (v) the existence of special rules on the payment of costs of actions. In order to decide on the need and adequacy of taking action at Community level to improve the conditions for actions for damages, the European Commission is currently receiving comments on the Green Paper. All interested parties may send their contribution until April 21, 2006, for the email or address mentioned at the end of the Green Paper. ________________________________________________ 1See Case C-453/99 Courage/Crehan, judgment of the ECJ of September 20, 2001, paras. 26, 27 and 29. 2Green Paper - Damages actions for breach of the EC antitrust rules, in: http://europa.eu.int/comm/competition/antitrust/others/actions_for_damages/gp_en.pdf 3European Commission Green Paper on damages actions for breach of EC Treaty antitrust rules – FAQ, in: http://europa.eu.int/rapid/pressReleasesAction.do?reference=MEMO/05/489&format=H TML&aged=0&language=EN&guiLanguage=en