Serbian Commission for Protection of Competition
April 7 2017, Belgrade
Actions for damages: an EU perspective
Nicholas Banasevic,
DG Competition, European Commission
(speaking in a personal capacity - the views expressed are not
necessarily those of the European Commission)
Effective enforcement system:
Private enforcement
Directive
national
laws
General
characteristics
of judicial
system
Collective
redress
Public enforcement
ECN +
European
Commission
Private enforcement - background
■ 1974: ECJ in BRT/Sabam case
 Anyone who has suffered harm can claim
compensation
 Rights can be invoked in national courts
 Confirmed in many subsequent judgments
■ Historically, not much private enforcement
 Most cases were in 3 countries (DE, NL, UK)
 Most cases brought by big business (not SMEs or
consumers)
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Damages Directive (2014)
■ Make it easier for victims to claim
compensation
 Significantly improve underdeveloped and uneven private
enforcement
 Ensure the basic framework to allow for compensation
■ Improve the interaction between public and
private enforcement
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Main provisions (I)
■ Easier access to evidence
 E.g. allowing judges to order disclosure based on categories
■ Final decision of NCA
 Full proof before civil courts of infringement
 Prima facie proof in other Member States
■ More time: 5 years to bring damages claims
 Starting from when a party finds out it has suffered harm
 Suspended if an NCA starts a case - then one year after an NCA
takes a decision
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Main provisions (II)
■ Two legally rebuttable presumptions
 Cartels cause harm
 "Pass-on" presumed (for indirect customers)
■ Full compensation for harm
 Actual loss, loss of profit, plus interest
■ Some limits to what can be disclosed in order
to preserve incentives to co-operate
 Leniency statements fully protected
 Documents specifically created for ongoing investigations
protected during the investigation
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Concluding thoughts
■ Very important addition to the competition
authority toolkit
■ Responsibility of Member States to implement
the Directive
■ Complementarity of public and private
enforcement
 As well as interplay between enforcement at EU level and at
national level
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