European Union - - Competition Litigation Comparative Guide (2024)

Table of Contents
1 Legal framework 1.1 Which laws regulate competition in your jurisdiction? 1.2 Which authorities are responsible for enforcing the competition legislation? What is their general approach to enforcement? 2 Private claims 2.1 What types of private claim may be brought for breach of competition law in your jurisdiction? 2.2 What is the legal basis for bringing a claim for breach of competition law? 3 Parties 3.1 Who has standing to bring a claim for breach of competition law? 3.2 Can a claim for breach of competition law be brought against parties outside the jurisdiction? 3.3 Can a claim for breach of competition law be brought against individuals, or only companies? 4 Collective actions 4.1 Is it possible to bring a collective action for breach of competition law in your jurisdiction? If so, what is the applicable regime? 4.2 Do collective actions proceed on an ‘opt-in' or an ‘opt-out' basis? 4.3 Do collective actions require certification? If so, what requirements must be met to obtain certification? 5 Forum 5.1 In what forum(s) are claims for breach of competition law heard in your jurisdiction? 6 Bringing a claim 6.1 What is the limitation period for claims for breach of competition law in your jurisdiction? 6.2 What are the formal requirements for bringing a claim for breach of competition law? 6.3 What are the procedural and substantive requirements for bringing a claim for breach of competition law? 6.4 What are the implications if a public enforcement action in relation to the same behaviour is pending? Can a claim still be brought? 6.5 How is jurisdiction over the claim determined? 6.6 How is the applicable law determined? 6.7 Under what circ*mstances must security for costs be provided? 6.8 Are interim remedies available in competition litigation? If so, how are they obtained? 7 Disclosure and privilege 7.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply? 7.2 What rules on third-party disclosure apply in your jurisdiction? 7.3 What rules on privilege apply in your jurisdiction? 8 Evidence 8.1 What types of evidence are permissible in your jurisdiction? Is expert evidence accepted? 8.2 What is the applicable standard of proof? 8.3 On whom does the burden of proof rest? 8.4 What defences are typically available in competition litigation? 9 Settlement 9.1 Can the proceedings be discontinued without a full trial? If so, how; and what are the implications? 9.2 In the case of collective actions, is collective settlement possible? If so, how; and what are the implications? 10 Court proceedings 10.1 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential? 10.2 How do the court proceedings unfold in your jurisdiction? 10.3 What is the typical timeframe for proceedings? 10.4 What rules apply to the joinder of third parties? 10.5 To what extent do the decisions of national or foreign competition authorities influence the court's decision? 11 Remedies 11.1 What remedies are available in competition litigation in your jurisdiction? 11.2 Are punitive damages awarded in your jurisdiction? 11.3 Will the courts consider any fines imposed by the competition authorities in deciding on the quantum of damages? What other factors will it consider in this regard? 12 Appeals 12.1 Can the decision of the court or tribunal be appealed? If so, on what grounds and what is the process? 13 Costs, fees and funding 13.1 What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs? 13.2 Are contingency fees and similar arrangements permitted in your jurisdiction? 13.3 Is third-party funding permitted in your jurisdiction? 14 Trends and predictions 14.1 How would you describe the current competition litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms? 15 Tips and traps 15.1 What would be your recommendations to parties facing competition litigation in your jurisdiction and what potential pitfalls would you highlight? References

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1 Legal framework

1.1 Which laws regulate competition in your jurisdiction?

Competition in the European Union is regulated first and foremost by Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) – in particular, the prohibitions on certain coordinated conduct and unilateral conduct by dominant undertakings which may affect trade between member states. These rules have "direct effects in relations between individuals" (Case C-127/73, BRT v SABAM) – which means, for example, that compensation claims can be based directly on an infringement of EU competition law (Case C-453/99, Courage v Crehan).

In addition, the European Union has implemented a number of secondary legislative acts, the most important of which is Council Regulation 1/2003 on the implementation of the rules on competition laid down in Articles 101 and 102 TFEU (Regulation 1/2003), which governs the application of the EU competition rules. The European Commission has also adopted a number of non-regulatory documents (guidelines, notices, best practices) that shape the application of EU competition rules to a significant extent. Each EU member state's national competition authority (NCA) applies its own national competition rules; although their effect is limited to the member state's own territory. In addition to their own rules, NCAs must apply EU competition law (Article 3(1) of EU Regulation 1/2003) where there is an effect on trade between member states. EU law takes precedence over national law (Case C-6/64, Costa v ENEL).

With regard to damages claims, Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states and of the European Union (Damages Directive) covers a number of specific aspects in relation to damage claims based on infringements of EU competition law.

1.2 Which authorities are responsible for enforcing the competition legislation? What is their general approach to enforcement?

At the EU level, EU competition law is enforced by the European Commission – in particular, by the Directorate-General for Competition (DG COMP), which has a staff of approximately 850. It enforces:

  • the EU rules on:
    • unilateral and coordinated (cartel) conduct;
    • mergers; and
    • state aid;
  • the Digital Markets Act – Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828; and
  • Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market.

The European Commission takes a proactive approach but also regularly acts based on complaints from third parties and information provided by whistleblowers.

In addition to the European Commission, NCAs enforce EU competition law on top of their national competition law (see Article 3(1) of EU Regulation 1/2003).

DG COMP and NCAs closely cooperate in the application of EU competition law; see Article 11 of Regulation 1/2003 and Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the member states to be more effective enforcers and to ensure the proper functioning of the internal market.

As Articles 101 and 102 TFEU have "direct effects in relations between individuals" (Case C-127/73, BRT v SABAM), compensation claims can be based directly on an infringement of EU competition law (Case C-453/99, Courage v Crehan). EU law is built on the understanding that private enforcement by individuals complements public enforcement by NCAs. Both are an integral part of the system for enforcement of the competition rules (Case C-605/21, Heureka Group v Google).

2 Private claims

2.1 What types of private claim may be brought for breach of competition law in your jurisdiction?

While it follows directly from Articles 101 and 102 TFEU that anyone harmed by an infringement of those provisions is entitled to damages (Case C-453/99, Courage v Crehan), private claims are primarily governed by the member states' legal frameworks. It is not possible to bring damage claims for competition law breaches before the EU courts; this can be done only before the courts of the EU member states.

Parties in private lawsuits – both claimants and defendants, depending on the specific claim being made – can also invoke the fact that any agreement that infringes EU competition law is null and void (see Article 101(2) TFEU).

2.2 What is the legal basis for bringing a claim for breach of competition law?

It follows directly from Articles 101 and 102 TFEU that anyone harmed by an infringement of those provisions is entitled to damages (Case C-453/99, Courage v Crehan). The procedural framework for claims can be found in each member state's national law. However, the application of EU law provisions by national courts must be effective and no less favourable than (ie, equivalent to) the application of national law (Case C-453/99, Courage v Crehan).

With regard to damages claims, the Damages Directive covers a number of specific aspects in relation to damages claims based on infringements of EU competition law. By 2018, all member states had transposed the directive into their national law (see the European Commission's Staff Working Document of 14 December 2020 on the implementation of the Damages Directive).

3 Parties

3.1 Who has standing to bring a claim for breach of competition law?

Although the question of standing is a matter of national law, the Court of Justice of the European Union (CJEU) found in Courage v Crehan (Case C-453/99) that "anyone" can claim damages for breach of competition law. This is also reflected in the Damages Directive, which provides that "anyone who has suffered harm caused by an infringement of competition law" must be able to claim full compensation (Article 1(1) of the Damages Directive). This comprises "any natural or legal person" (Article 3(1) of the Damages Directive).

The CJEU has consistently upheld an extensive interpretation of the term ‘anyone', such as:

  • direct and indirect purchasers;
  • direct and indirect suppliers; and
  • purchasers to a supplier who was not party to a cartel but used the price increase caused by the cartel as an ‘umbrella' to set higher prices as well (‘umbrella pricing'; Case C-557/12, Kone v ÖBB-Infrastruktur).

3.2 Can a claim for breach of competition law be brought against parties outside the jurisdiction?

Determination of jurisdiction between the courts of the EU member states is governed by Regulation 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Recast Regulation). It is settled case law that this framework applies in the context of competition law claims.

The Brussels I Recast Regulation provides that "persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State" (Article 4(1) of the Brussels I Recast Regulation). It also provides that "persons domiciled in a Member State may be sued in the courts of another Member State" (Article 5(1) of the Brussels I Recast Regulation) – for example:

  • in matters relating to a contract, in the courts of the place of performance of the obligation in question (Article 7(1) of the Brussels I Recast Regulation); and
  • in matters relating to tort, delict or quasi-delict, in the courts of the place where the harmful event occurred or may occur (Article 7(2) of the Brussels I Recast Regulation).

If a defendant is not domiciled in a member state, the jurisdiction of the courts of each member state is determined by the law of that member state, subject to certain exceptions (Article 6(1) of the Brussels I Recast Regulation). In case of a plurality of defendants, a claim may be brought in the courts of the place where any of the defendant is domiciled (‘anchor defendant'), as long as there is a close connection between the claims (Article 8(1) of the Brussels I Recast Regulation).

Similar considerations apply to defendants domiciled in Iceland, Norway and Switzerland (see the Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters).

It is settled case law that these frameworks apply to a claim brought by a company domiciled outside of the European Union, Iceland, Norway or Switzerland against a company domiciled within these jurisdictions.

3.3 Can a claim for breach of competition law be brought against individuals, or only companies?

Claims can be brought against both companies and individuals, as long as they carry out an economic activity (see Case C-41/90, Klaus Höfner v Macrotron; Case C-309/99, Wouters v Algemene Raad van de Nederlandse Orde van Advocaten).

EU law does not prevent member states from expanding the scope of liability to other individuals such as directors; but it also does not require member states to introduce this kind of liability, as long as they observe the principles of equivalence and effectiveness. According to these principles, the application of EU law provisions by national courts must be effective and no less favourable than (ie, equivalent to) the application of national law.

4 Collective actions

4.1 Is it possible to bring a collective action for breach of competition law in your jurisdiction? If so, what is the applicable regime?

EU law does not provide for, and does not oblige member states to introduce, rules on collective actions for damages claims based on competition law infringements. Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (‘Representative Actions Directive') requires member states to introduce representative actions only for infringements of an enumerated number of provisions and does not include competition law provisions (Article 2(1) of the Collective Redress Directive with Annex I).

Conversely, Article 42 of the Digital Markets Act (DMA) requires member states to introduce representative actions in case of DMA infringements. That said, EU law also does not prevent member states from introducing representative actions rules for competition law infringements. Several member states have introduced collective actions systems for competition law infringements (including the Netherlands, Germany, France and Belgium).

Moreover, some member state courts have accepted alternative models allowing for the bundling of claims – for example, the assignment model in Germany, Austria and the Netherlands.

4.2 Do collective actions proceed on an ‘opt-in' or an ‘opt-out' basis?

Member states that provide for collective actions for competition law damages cases may apply both opt-in and opt-out arrangements, subject to the EU principles of equivalence and effectiveness.

4.3 Do collective actions require certification? If so, what requirements must be met to obtain certification?

Member states that provide for collective actions in competition law damages cases may apply certification rules, subject to the EU principles of equivalence and effectiveness.

5 Forum

5.1 In what forum(s) are claims for breach of competition law heard in your jurisdiction?

The courts of the EU member states decide on claims based on competition law infringement. The jurisdiction of the competent court is determined by the Brussels I Recast Regulation; see question 3.2 for more on jurisdiction.

It is in the member states' responsibility to determine:

  • the competent court(s) within their territory; and
  • whether there are specialised courts for claims based on competition law infringements.

6 Bringing a claim

6.1 What is the limitation period for claims for breach of competition law in your jurisdiction?

Limitation periods are an important factor of private enforcement's effectiveness. They therefore must be sufficiently long and allow for suspension and interruption to enable private parties to claim damages. In Cogeco v Sport TV Portugal (Case C-637/17), the Court of Justice of the European Union (CJEU) found that Article 102 TFEU precluded limitation periods of three years which start running even if the injured party is unaware of the identity of the person liable and where there is no possibility of suspension/interruption of the period as long as a national competition authority (NCA) investigates the infringement. In Heureka Group v Google, the CJEU found that the laws of the member states cannot have limitation periods that start running before the infringement concerned has come to an end (Case C-605/21).

The Damages Directive introduced rules concerning limitation periods. The rules on limitation periods cannot be applied retroactively (Article 22 of the Damages Directive; see Case C-267/20, Volvo v RM).

The limitation period for bringing damages actions:

  • should last at least five years (Article 10(3) of the Damages Directive); and
  • begins to run when the infringement has ceased and the claimant knows or can reasonably be expected to know of:
    • the conduct that constituted an infringement of competition law and that caused harm to the claimant; and
    • the identity of the infringer (Article 10(2) Damages Directive).

The limitation period will be suspended or interrupted from the moment that an NCA starts investigating an alleged infringement. The suspension will end at the earliest one year after:

  • an infringement decision has become final; or
  • the public enforcement proceedings have otherwise been terminated (Article 10(4) of the Damages Directive).

The Damages Directive sets only a minimum standard and member states are free to enact rules on limitation periods that are more generous to claimants.

6.2 What are the formal requirements for bringing a claim for breach of competition law?

Private actions for damages take place at the national level, pursuant to the national rules and procedures of each member states.

Member states must adhere to the principles of effectiveness and equivalence when adopting and applying procedural rules relating to litigation concerning infringements of Article 101 or 102 TFEU (Case C-453/99, Courage v Crehan and Article 4 of the Damages Directive). According to these principles, the application of the EU law provisions by national courts must be effective and no less favourable than (ie, equivalent to) the application of national law.

6.3 What are the procedural and substantive requirements for bringing a claim for breach of competition law?

See question 6.2. This is a matter for the national legal systems of the EU member states, subject to the EU principles of equivalence and effectiveness.

6.4 What are the implications if a public enforcement action in relation to the same behaviour is pending? Can a claim still be brought?

See question 6.2. This is a matter for the national legal systems of EU member states, subject to the EU principles of equivalence and effectiveness. However, there is a sense of interdependency between public and private enforcement, given that EU law is built on the understanding that public and private enforcement complement each other. Both are an integral part of the system for enforcement of the competition rules (Case C-605/21, Heureka Group v Google).

Article 16(1) of the Damages Directive imposes an obligation on national courts and NCAs not to take decisions which run counter to a decision either already taken or contemplated by the European Commission when ruling on agreements, decisions and practices under Articles 101 and 102 TFEU.

Article 9(1) of the Damages Directive requires member states to ensure that an infringement of competition law found by a final decision of an NCA is deemed to be irrefutably established for the purposes of an action for damages brought before their national courts. This binding effect covers infringements both of Articles 101 and 102 TFEU and of national competition law.

6.5 How is jurisdiction over the claim determined?

Jurisdiction over the claim is determined by the Brussels I Recast Regulation. Generally, the court of the member state in which the defendant is domiciled will have jurisdiction over the claim, regardless of the defendant's nationality (Article 4 of the Brussels I Recast Regulation). The CJEU has found that a claim can be brought against both the parent company and its subsidiary (Case C-882/19, Sumal v Mercedes Benz Trucks España), which can lead to courts in several member states being competent for a claim.

Claimants can also bring the action in the courts of the place where the harmful event occurred (Article 7(2) of the Brussels I Recast Regulation), which is where the market is affected by the anti-competitive conduct (Case C-451/18, Tibor-Trans v DAF Trucks).

Pursuant to Article 7(2) of the Brussels I Recast Regulation, claims can further be brought where a cartel was formed and cartelists have met (Case C-352/13, Cartel Damage Claims (CDC) Hydrogen Peroxide v Akzo Nobel).

Similar considerations apply to defendants domiciled in Iceland, Norway or Switzerland, as per the Lugano Convention.

See question 3.2 for more on jurisdiction.

6.6 How is the applicable law determined?

Member states retain procedural autonomy subject to the principle of equivalence and effectiveness, and it is for the parties to determine the applicable law.

With regard to the substantive aspects of competition law, the EU competition rules are applicable insofar as the alleged anti-competitive conduct may affect trade between member states. Regulation (EC) 864/2007 of the European Parliament and the Council of 11 July 2007 (Rome II Regulation) governs all other questions, such as:

  • the determination of the applicable law to civil procedure;
  • damages claims;
  • interim measures;
  • collective redress mechanisms; and
  • possible stricter national competition laws as per Article 3(2) of Regulation 1/2003.

The competition litigation-related provisions contained in the Rome II Regulation state that the applicable law is the law of the country in which the market that is, or is likely to be, affected by the restriction of competition is located (Article 6(3)(a) of the Rome II Regulation), "whether or not it is the law of a Member State" (Article 3 of the Rome II Regulation). If the market is, or is likely to be, affected in more than one country, the claimant has a right to choose to base the claim on the law of the court seized, provided that the market in that member state is directly and substantially affected by the restriction of competition (Article 6(3)(b) of the Rome II Regulation).

6.7 Under what circ*mstances must security for costs be provided?

See question 6.2. This is a matter for the national legal systems of the EU member states, subject to the EU principles of effectiveness and equivalence.

6.8 Are interim remedies available in competition litigation? If so, how are they obtained?

See question 6.2. This is a matter for the national legal systems of the EU member states, subject to the EU principles of effectiveness and equivalence.

7 Disclosure and privilege

7.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply?

The Damages Directive introduced several rules on the disclosure of evidence in order for claimants to access evidence held by defendants or third parties which allows them to prove their claim. Pursuant to Article 5(1) of the Damages Directive, the legislation of member states must provide for access to evidence once the claimant has presented a reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages (Article 5(1) of the Damages Directive). Disclosure of evidence will then be decided upon by the national courts, following the principles of necessity, proportionality and the protection of confidentiality (Article 5(3) of the Damages Directive).

Finally, the directive sets out special rules for the disclosure of evidence included in the file of a competition authority (Article 6 of the Damages Directive).

Notably, disclosure does not include leniency statements and settlement submissions (Article 6(6) of the Damages Directive). These sorts of documents are protected from disclosure given their importance in the opening and closing of investigations. Legally privileged documents are also not covered (see question 7.3).

7.2 What rules on third-party disclosure apply in your jurisdiction?

The rules described in question 7.1 apply to the parties to the proceedings and any third parties alike. However, Article 5(3) of the Damages Directive requires particular consideration of the third party's interest – in particular, with regard to:

  • the scope and cost of disclosure; and
  • whether the evidence whose disclosure is sought contains confidential information relating to that third party.

7.3 What rules on privilege apply in your jurisdiction?

Member states must ensure that national courts give full effect to applicable legal professional privilege (LPP) under EU or national law when ordering the disclosure of evidence (Article 5(7) of the Damages Directive).

EU LPP protects three kinds of communications:

  • correspondence between an independent lawyer admitted in an EU member state and the client, provided that such communications are made for the purposes and in the interest of the client's right of defence (Case C-155/79, AM & S v Commission);
  • internal notes of the client reporting the advice received from external counsel (Case T-30/89, Hilti v Commission); and
  • internal documents prepared by the client at the request of external counsel (Cases T-125/03 and T-253/03, Akzo Nobel v Commission).

Traditionally, communications between in-house counsel and other employees of the company are not protected, given that in-house counsel lack the "independence" required by the Court of Justice of the European Union (CJEU) (Case C-155/79, AM & S v Commission). Similarly, EU LPP may not extend to communications with any external counsel who is not admitted in an EU member state.

The CJEU recently moved to a less restrictive view on the scope of LPP, not distinguishing between the type of external counsel advice and indicating that any restriction of LPP must be strictly necessary to achieve specific objectives (Case C-694/20, Orde van Vlaamse Balies v Vlaamse Regering).

8 Evidence

8.1 What types of evidence are permissible in your jurisdiction? Is expert evidence accepted?

Rules concerning permissible evidence in proceedings before member state courts, including expert evidence, are governed by national legislation, subject to the EU principles of effectiveness and equivalence.

8.2 What is the applicable standard of proof?

The standard of proof and the burden of proof in proceedings before national courts are regulated by the laws of each member state, subject to the EU principles of effectiveness and equivalence. However, the Damages Directive introduced two rebuttable presumptions to facilitate damages claims.

First, Article 17(2) of the Damages Directive provides for a rebuttable presumption that cartel infringements cause harm. This presumption does not cover the extent of the harm (Recital 47 of the Damages Directive), to which the general burden of proof applies.

Second, Article 14(2) of the Damages Directive sets out a presumption in favour of indirect purchasers. It states that, under certain circ*mstances, cartel overcharges are deemed to have been passed on to indirect purchasers. The reason for this presumption is that it may be difficult for indirect purchasers to prove the occurrence and extent of the harm, since they did not themselves make any direct purchases from the infringer. In order to rely on the presumption, the indirect purchaser must prove the passing-on by showing that:

  • the defendant has committed an infringement of competition law;
  • the infringement has resulted in an overcharge for the direct purchaser of the defendant; and
  • the indirect purchaser has purchased the goods or services that were the object of the infringement of competition law.

This presumption is rebuttable and the infringer can demonstrate that the actual loss has not, or not entirely, been passed on to the indirect purchaser (Recital 41 of the Damages Directives). The European Commission has adopted non-binding guidelines for national courts on how to estimate the share of overcharge which was passed on to the indirect purchaser (European Commission Communication 2019/C 267/07 of 9 August 2019).

8.3 On whom does the burden of proof rest?

See question 8.2.

Specifically with regard to an infringement of Article 101 or 102 TFEU, Article 2 of Regulation 1/2003 states that the burden of proof rests with the party alleging the infringement.

However, claimants typically make ‘follow-on' damages claims based on a European Commission or national competition authority (NCA) decision. Article 16(1) imposes an obligation on national courts and NCAs not to take decisions which run counter to a decision either already taken or contemplated by the European Commission when ruling on agreements, decisions and practices under Articles 101 and 102 TFEU. Article 9(1) of the Damages Directive requires member states to ensure that an infringement of competition law found by a final decision of an NCA is deemed to be irrefutably established for the purposes of an action for damages brought before its national courts.

In cases where there is no such European Commission or NCA decision (ie, for ‘standalone' damages claims), Article 2 of Regulation 1/2003 applies.

8.4 What defences are typically available in competition litigation?

Defendants typically claim that:

  • harm to the claimant did not arise from the infringement; or
  • the limitation period has expired.

Further, the passing-on defence is an instrument specific to competition litigation. According to Article 13 of the Damages Directive, member states must allow infringers to demonstrate that the claimant passed on at least part of the price increase resulting from the infringement of competition law to its own customers. When applying this defence, the burden of proof rests on the defendant, which may reasonably require disclosure from the claimant or from third parties in order to substantiate the passing-on defence.

9 Settlement

9.1 Can the proceedings be discontinued without a full trial? If so, how; and what are the implications?

The right to discontinue a claim and the relevant procedures are governed by national law, subject to the EU principles of effectiveness and equivalence.

9.2 In the case of collective actions, is collective settlement possible? If so, how; and what are the implications?

Under the Representative Actions Directive, which enables consumers to protect their collective interests in the European Union through representative actions brought by qualified entities, collective settlement is possible (Article 1(1) of the Representative Actions Directive). While the directive does not cover damages from competition law infringements (see question 4.1), it does not create full harmonisation for collective settlements but chooses a minimum harmonisation approach. Consequently, some member states (eg, Germany) have chosen to include these types of damages in their national transposition of the Representative Actions Directive.

10 Court proceedings

10.1 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?

In general, court proceedings before national courts are governed by national law, subject to the EU principles of effectiveness and equivalence.

The Damages Directive provides that member states must ensure that national courts have the power to order the disclosure of evidence containing confidential information where they consider it relevant to the action for damages (Article 5(4) of the Damages Directive).

The European Commission has adopted a non-binding communication on the protection of confidential information by national courts in proceedings for the private enforcement of EU competition law (Communication 2020/C 242/01 of 22 July 2020).

10.2 How do the court proceedings unfold in your jurisdiction?

Court proceedings before national courts are governed by national law, subject to the EU principles of effectiveness and equivalence.

10.3 What is the typical timeframe for proceedings?

See question 10.2.

10.4 What rules apply to the joinder of third parties?

See question 10.2.

10.5 To what extent do the decisions of national or foreign competition authorities influence the court's decision?

Article 16(1) of the Damages Directive imposes an obligation on national courts and national competition authorities (NCAs) not to take decisions which run counter to a decision either already taken or contemplated by the European Commission when ruling on agreements, decisions and practices under Articles 101 and 102 TFEU. Article 9(1) of the Damages Directive requires member states to ensure that an infringement of competition law found by a final decision of an NCA is deemed to be irrefutably established for the purposes of an action for damages brought before their national courts. Decisions by authorities outside the European Union do not benefit from these provisions.

11 Remedies

11.1 What remedies are available in competition litigation in your jurisdiction?

The Damages Directive provides that member states must ensure that any natural or legal person that has suffered harm caused by an infringement of competition law can claim and obtain full compensation for that harm (Article 3(1) of the Damages Directive). The European Commission has adopted a non-binding practical guide on quantifying competition harm in damages actions, which aims to help national courts quantify the harm (EC Staff Working Document, SWD(2013) 205 of 11 June 2013).

11.2 Are punitive damages awarded in your jurisdiction?

No, punitive damages are not awarded. According to Article 3(2) of the Damages Directive, a person harmed by an infringement of competition law will be placed in the position in which that person would have been had the infringement of competition law had not been committed. Full compensation will therefore cover only:

  • the actual loss;
  • the loss of profit; and
  • the payment of interest.

11.3 Will the courts consider any fines imposed by the competition authorities in deciding on the quantum of damages? What other factors will it consider in this regard?

No, the courts may not consider any fines imposed by the European Commission or national competition authorities in deciding on the amount of damages. That would run contrary to the principle enshrined in Article 3(1) of the Damages Directive that anyone "who has suffered harm caused by an infringement of competition law is able to claim and to obtain full compensation for that harm".

Conversely, Article 18(3) of the Damages Directive states that a "competition authority may consider compensation paid as a result of a consensual settlement and prior to its decision imposing a fine to be a mitigating factor." For example, the European Commission has been willing to reduce fines in several instances where a company had decided to financially compensate harmed third parties (Decision 1999/60/EC, Pre-Insulated Pipe Cartel; Decision 2003/675/EC, Nintendo).

12 Appeals

12.1 Can the decision of the court or tribunal be appealed? If so, on what grounds and what is the process?

Available appeal procedures before national courts are governed by national law, subject to the EU principles of effectiveness and equivalence.

13 Costs, fees and funding

13.1 What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs?

Costs, fees and funding are imposed by the national courts in accordance with the national law of each EU member state.

13.2 Are contingency fees and similar arrangements permitted in your jurisdiction?

See question 13.1.

13.3 Is third-party funding permitted in your jurisdiction?

See question 13.1.

14 Trends and predictions

14.1 How would you describe the current competition litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

In the last decade, EU law has provided important guidance for national legislation on competition damages – the most important statute being the Damages Directive. Most recently, the Digital Markets Act (DMA) established a new type of damages claims, based on DMA infringements by designated gatekeepers. While there are no pending legislative reforms, the EU courts regularly pass judgments that have important implications to damages proceedings.

A great number of damages claims in national courts are based on European Commission investigations as follow-on claims – a trend which is likely to continue, given the difficulties establishing an infringement on a standalone basis.

15 Tips and traps

15.1 What would be your recommendations to parties facing competition litigation in your jurisdiction and what potential pitfalls would you highlight?

EU member states have implemented a wide variety of competition litigation regimes within the framework established by the European Union. This allows both claimants and defendants to strategically choose their forum and make strategic use of the differences between the regimes.

While damage claims are directly determined by national law, EU law has a bearing on these national proceedings.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circ*mstances.

European Union -  - Competition Litigation Comparative Guide (2024)

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Name: Otha Schamberger

Birthday: 1999-08-15

Address: Suite 490 606 Hammes Ferry, Carterhaven, IL 62290

Phone: +8557035444877

Job: Forward IT Agent

Hobby: Fishing, Flying, Jewelry making, Digital arts, Sand art, Parkour, tabletop games

Introduction: My name is Otha Schamberger, I am a vast, good, healthy, cheerful, energetic, gorgeous, magnificent person who loves writing and wants to share my knowledge and understanding with you.