La directiva de daños en materia antitrust: visión crítica
| Autor | Vanessa Jiménez Serranía |
| Cargo del Autor | Lawyer and Ph.D. Candidate in Commercial Law, University of Salamanca |
| Páginas | 113-129 |
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Most of the competition law enforcement systems are based on two pil-lars: public enforcement and private enforcement. Hovewer, the extensive study of private enforcement of competition law conducted by Ashurst, on behalf of the EU Commission, in 2004, showed a very disheartening picture regarding the development of private enforcement1. According to the Ashurst Study, the obstacles to private enforcement were: limits on standing to sue; limits on col-lective redress; the absence of contingency fees; an excessively high burden of proof; inadequate discovery rules; the absence of punitive damages and uncer-tainty regarding the calculation of damages2.
In the past decade, and in tandem with a renewed approach to public enforcement, the EU Courts 3 and the European Commission have sought to establish and encourage a "culture" of private enforcement of EU competi-tion law.
This process has culminated in the approval of a Directive4 on actions for damages for infringements of the competition law provisions of the Member States and of the European Union5 (hereinafter, "Directive"). The Directive aims at removing these practical difficulties, In particular, it will give victims
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easier access to evidence they need in order to prove the damage. At the same time, it ensures that the effectiveness of the tools used by competition authori-ties to enforce antitrust rules, in particular leniency and settlement programmes, is preserved.
The Directive sets out a important number of measures to facilitate damages actions such as: the power of national courts to order companies to disclose evidence when victims claim compensation6; the consideration of decision of national competition authorities as evidence before national courts7; a limita-tion period (i. e. the period of time within which victims can bring an action for damages) requiring of no less than five years8; the right to obtain full compensation 9; the recognition of the passing-on defence10; and the simplification of consensual settlements11.
This paper aims at exploring some of the main provisions of the Directive from a critical point of view, and also the impact of these provisions in the actual Spanish competition law system and in the balance between public and private enforcements.
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Proposed rules for disclosure of evidence
The lack of legal means allowing acces to evidence is one of the main disincentives to actions for damages. The information asymmetry between the undertakings involved in the infringement and the claimants is hard to bridge under most national laws in the EU.
In order to try to solve this problem, the Directive gives national courts the power to order the disclosure not only of specified items but also of categories of evidence upon request of a party 12. Obviously, this disclosure should be car-ried out under a strict jurisdictional control, especially in respect to the necessity and proportionality of disclosure measures13.
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Nevertheless, this disclosure of evidence should not unduly detract from the effectiveness of the enforcement of competition law by a competition authority. In fact, the Directive does not cover the disclosure of internal documents of a competition authority, correspondence between competition authorities14 and information concerning an ongoing investigation15.
In addition, in order to preserve the effectiveness of leniency programs, the Directive introduces an absolute restriction on disclosure of leniency corpo-rate statements and settlement submissions, which often contain admissions of guilt16.
However, once a competition authority has closed its proceedings or taken a final decision, national courts would be able to order the disclosure of some of the information that was prepared specifically for the competition authority pro-ceedings or by the competition authority itself in the course of its proceedings. Among these would figure Statements of Objections and replies to requests for information17.
Besides leniency, there is another important issue: the disclosure of confi-dential information. The Directive establishes that "(w)hile relevant evidence containing business secrets or otherwise confidential information should, in principie, be available in actions for damages, such confidential information needs to be protected appropriately"18.
Thus, in other to achieve such protection national courts should have at their disposal a range of measures to prevent such confidential information from be-ing disclosed during the proceedings19
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Striking the balance between damage actions and protection of leniency and confidential information
The vital need for evidence to support an antitrust claim is well-established. In the search for information, competition authorities decisions are a treasure trove for claimants. Yet, the Directive's impetus towards freer access to evi-dence can collide with three equally important objectives: the success of le-niency programmes; the protection of business secrets and other confidential information and the protection of personal data 20.
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Leaving aside protection of personal data, leniency and protection of business secrets are the two most daunting obstacles to obtain evidence from other parties or from national authorities.
First of all, leniency has been in the eye of the storm since the important Pfleiderer judgement21. As a reminder, the ECJ ruled in Pfleiderer that access to leniency documents is not prohibited by EU law. However, the ECJ left it to the national courts to balance their national law with the interests protected by EU policy. As a result, the approaches adopted by national courts following Pfleiderer were diverse22.
The Directive tries to solve this problem by granting an absolute protection to corporate leniency statements and settlements submissions. Neverthe-less, this solution appears to be at odds with the finding of the ECJ in Donau Chemie23, which advocated a case-by-case assessment. It has been suggested that this Directive provision springs from a relative lack of trust in the ability of all judges throughout 28 Memberss States to perform the balancing exercise that Pfeiderer and Donau Chemie require24. Yet, another reason seems more plausible, i.e. to protect the highly successful tool of leniency against a chilling effect due to extensive access to evidence.
In any case, provisions of Article 5 are a revolution for most European leg-islation, amongst which, Spanish law. It has been pointed out by Assimakis Komninos: "It is the general provision on access to evidence. [...], it is still a revolution in the sense that, first of all, it opens disclosure also with regard to categories of evidence, and this is something that we did not have before. [...], this represents a very important element going forward"25.
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Indeed, these provisions will deeply alter to the existing Spanish disclosure system for damage actions. Claimants in Spain will have the right to request the disclosure of a category of documents and not only of designated documents as established in the current legal framework 26. Although,, this revolution will be mitigated by judicial oversight. Disclosure of evidence held by the opposing party or a third party will only be ordered by judges and it will be subject to strict and active judicial control as to its necessity, scope and proportionality27.
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The "binding effect" provisions
The Directive extends the binding effect of final infringement decisions, af-forded to the Commission by Article 16(1) of Regulation 1/200328, to decisions taken by national competition authorities and review courts.
The finding of an infringement of competition law in a final decision is deemed to be irrefutably established in actions for damagesbrought in the same Member State wer5 the decision originated29.
On the other hand, the Directive establishes a restricted crossborder binding effect, meaning that a final decision taken in other Member States by the national competition authority or the review court can be presented as at least prima facie evidence of the fact that an infringement of competition law has occurred30.
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Binding effect versus the independence of the judiciary
The Directive introduces a binding effect inspired by the UK system, nar-rower than the system proposed by the White Paper on Damages actions for breach of the EC antitrust rules31 (hereinafter "White Paper"), but still sub-
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stantially different from the framework prevailing in most European countries, especially Spain32.
In 2013, the Spanish Supreme Court made inroads into giving value to ad-ministrative decisions by its judgement of 7 November 2013 in the Sugar Cartel case33. Indeed, certain aspects of the Spanish Antitrust Agency's administrative decision issued on 15 April 1999, i. e. factual evidence and their assessment, have been fully admitted and taken into account by the Supreme Court in the civil proceedings 34.
However, this is still far from the binding effect of administrative decisions issued by national competition authorities in other EU Member States, particularly in the UK. As a matter of fact, the limited binding effect on local courts of decisions issued by the Spanish Antitrust Agency comes short of the full-fledged...
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