Judges training on private enforcement after the Antitrust Damages Directive

by Maria Geilmann and Caroline Cauffman

On 30 November and 1 December 2017, Maastricht University and Lexxion publishers organized a high level seminar aimed at the training of national judges in the private enforcement of competition law after the implementation of the Antitrust Damages Directive (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 Text with EEA relevance OJ L 349, 5.12.2014, p. 1–19). The training was co-financed by the European Commission as a part of the project of the Directorate-General for Competition “Training of national judges and judicial cooperation in the field of EU competition law”.

After an introduction by dr. Caroline Cauffman (Maastricht University) and prof. em. Jacques Steenbergen (Belgian Competition Authority), Johannes Holzwarth and Hans-Petter Hanson (Officials of the European Commission), gave an overview of the state of play of the transposition in the Member States. Most Member States have transposed the Directive, only three Member States still need to do so (Greece, Portugal and Bulgaria). Currently, the Commission is checking the transposition in terms of completeness, in a second stage, it will check the conformity of the transposition with the Directive. The Commission officials also presented the current state of their guidelines on the passing-on effect and they gave us a very detailed presentation on the economic aspects of passing-on.

Prof. dr. Wouter Devroe (KULeuven/Maastricht University) presented some highlights of the transposition of the Directive in the Member States. He also explained how CDC, the best-known competition law damages claims vehicle, tries to circumvent the protection the Directive offers to leniency documents, by trying to convince cartelists to come to them and ask for a so-called ‘leniency plus +’ before going to the Commission or NCA to ask for leniency. What the undertaking gets in return is the binding promise by CDC that it will only hold the leniency plus claimant liable for the damage caused to its own direct and indirect purchasers, and it will not invoke their joint and several liability for all the damage caused by the cartel. Prof. Devroe furthermore pointed out the risk of a further extension of cartel damage beyond umbrella damage, by taking into account price increases of products that were not cartelized but are substitutable with the cartelized products.

In the Tutorial by Sarah Beeston (Van Doorne) and Maria Geilmann (German Monopolies Commission), they presented a fictional case, inspired by the Paraffine wax cartel, which gave the participants the opportunity to apply the provisions of the Dutch and German transposition legislation in practice. They emphasized that in practice a pragmatic approach to the application of material and procedural rules such as actively shaping the proceedings into different phases and discussing what the parties need for a settlement is key in multi-party damages cases.

Finally, prof. dr. Stephanie Francq and dr. Damien Gerard (both Université Catholique de Louvain-la-Neuve), looked into the question of the competent court and the applicable law in competition damages cases. They pointed out the ‘royal avenue’ for jurisdiction under articles 4 and 8 of Brussels I and discussed some borderline cases which could possibly be considered as an abuse of certain grounds of international competence. They also mentioned that in practice many cases are settled before the court reaches the question of the applicable law. In addition, Gerard Damien discussed the mechanisms of cooperation between the national courts and the Commission respectively NCAs.

On Friday morning, dr. Caroline Cauffman (Maastricht University) held a detailed presentation on the question of parent company liability in competition damages claims. She discussed the current disputes as to the interpretation of the Damages Directive on the point of civil law liability for parent companies for the competition infringements of their subsidiaries. Following this, she also gave an overview on how some EU Member States have interpreted the Damages Directive and whether they have provided for civil law liability for parent company liability. On this point, Caroline Cauffman emphasized that whether or not parent companies should be held liable under civil law would, in the end, be for the Court of Justice to decide. She recommended to the judges to refer a question on this to the Court. This presentation was the last one for Part I of the seminar.

In Part II the seminar centred on the topic of access to evidence. Dr. Marco Hartmann-Rüppel and Dr. Stefan Horn (Taylor Wessing) gave a detailed overview of the different problems concerning the implementation of the Damages Directive for access to evidence. This access is made possible according to the Directive for both claimants and defendants in competition law damages proceedings. They emphasized that it would especially be difficult to specify which documents would be needed for the substantiation of a competition law damages claim or a defense. Following this, Dr. Hartmann-Rüppel and Dr. Stefan Horn held a tutorial in which the participants had to apply the rules on access to evidence to a fictional case of a claim should be interpreted. Following this, Dr. Hartmann-Rüppel and Dr. Stefan Horn held a tutorial in which the participants had to apply the rules on access to evidence to a fictional case.

The third part of the seminar, which took place on Friday afternoon, was led by Dr. Niels Philipsen (Maastricht University) and Jakob Rüggeberg (CDC) and focused on the economic approach to damages cases.

Jakob Rüggeberg pointed out that the quantification of damages in competition cases requires a comparison with a hypothetical situation: that which would have existed if the infringement had not occurred. However, this is the traditional standard in tort law. He explained different theories for estimation damages: comparison methods, cost-based methods, simulation methods and stressed that there is no single best method for all cases. Which method or combination of methods is the most appropriate in a specific case depends on the nature of the case and the availability of data. In the past, courts have expressed a preference for comparator based methods due to real life data. The theoretical models were illustrated with case studies and an interactive dialogue with the judges was conducted.

The programme was considered highly interesting and valuable. Not only did the judges benefit from the presentations and discussions with the speakers, they also benefited from the exchange of experiences from different Member States. This discussion of real-life cases and various legal systems was also beneficial for the lecturers and the Members of the Commission.