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Neelie Kroes European Commissioner for Competition PolicyPolicy paper on compensating victims of competition breaches Opening remarks at press conferenceBrussels, 3rd April 2008

Opening remarks at press conference
Brussels, 3rd April 2008

Today I have come to speak to you about justice.

Justice is a core value of the European Union – the right to justice underpins the sort of free society and economy we have fought hard for. And the right to justice applies to competition rules as well. So when it is clear that an injustice exists because someone is breaking the competition rules, we have to act.

Each year in Europe we see businesses and families and individuals losing billions of euros – because some companies break the competition rules and we have not found a way to compensate the victims.

Those victims – it could be you, your family or your business – do not have access to justice. This problem is quite concrete and personal, when you consider it in those terms. And it deserves a concrete, straight-forward response.

I have asked myself: what would an average citizen do about this if they were in my shoes?

When I ask myself that, it seems obvious they would see a problem that needs fixing. And they would want a fair system that didn’t give special privileges to any group. They would want a balanced response – one that could address the problem without going too far or creating other problems at the same time; one that respected the different legal systems in each Member State.

So there is no doubt in my mind that the current approach of leaving antitrust enforcement almost solely to competition authorities is unsustainable. With our limited resources and limited powers to track down and punish wrong-doers we leave consumers and businesses exposed when they need not be.

But justice won’t come in this instance from new powers for competition authorities. It is time for consumers and businesses to be able to join competition authorities in upholding our competition culture. And let me be clear that the vast majority of businesses stand to gain from this White Paper – it is only those who break the rules that are at any risk.

After four years of research, internal reflections and public discussions, we have come now to a crucial point in the debate about antitrust damages actions. Particularly taking into account the extensive impact assessment study by independent experts that the Commission established, we can now offer specific policy recommendations as set out in this White Paper. We have moved past the question of ‘should we have a more effective system of antitrust damages actions?’ to the launching of our White Paper, on the issue of how a damages action system should operate.

We are at this point because everyone recognises that the people and businesses of Europe deserve better. A competition authority cannot be everywhere at once. A competition culture needs eyes and ears on the ground, and the capacity to respond quickly when an injustice has occurred. An option for private action increases greatly this possibility.

The main principles behind our proposals set out in the White Paper are the following:

Our first and foremost objective is to make damages claims by victims much more effective than they are today so as to ensure full compensation to victims.
To achieve that objective, joint efforts between the EU and Member States will be required. Member States need to reform their national legal systems, while the EU can contribute to that change by setting minimum requirements for effective redress.
The recommendations laid down in the White Paper are balanced in the sense that they offer a middle way between the hurdles to compensation that currently exist in most EU Member States and the over-incentives that could lead to excessive litigation, as has been seen in some other jurisdictions.
Finally, the Commission is convinced that its plea for more effective private claims system can go hand in hand with its continued commitment to strong public enforcement of the competition rules. Both means of enforcement are complementary and one should thus not jeopardise the other. The White Paper therefore puts forward measures that will guarantee the continued attractiveness of the leniency programmes that are so important for both public and private enforcement of our competition rules.
Turning now to the recommendations themselves. Four key issues stand out:

First, single damages: the Commission does not recommend a system of multiple damages – we favour single damages instead. Damages awarded in the first claim should fully compensate the victim for all losses suffered; nothing more, but also nothing less.
Secondly, collective redress is an absolute necessity if we want to ensure that large groups of victims with small value claims have access to justice. The Commission therefore suggests a combination of two complementary mechanisms: (1) opt-in collective actions, in which victims expressly decide to combine their individual claims for harm they suffered into one single action and (2) representative actions, which are brought by qualified entities, such as consumer or trade associations. Member State authorities could either designate those qualified entities in advance or certify them on an ad hoc basis for a particular antitrust infringement.
These two mechanisms are designed to guard against excessive litigation and the risk of abuses. That makes them different from other systems, such as the US-style class actions, where basically anyone can bring a claim on behalf of a group of unidentified victims, who are in the boat unless they explicitly decide to be out.

Third, evidence: access to all relevant evidence is absolutely essential for parties to be able to prove their allegation. To allow judges to get the full picture of a case, parties should not be permitted to keep relevant evidence to themselves. Court-controlled disclosure of relevant evidence is key to any effective damages action. However, excessive disclosure obligations, such as an automatic right to a broad discovery do not fit into the Commission balanced approach, since those solutions may lead to procedural abuses, where defendants settle merely to avoid the heavy costs.
Fourth, binding decisions of national competition authorities: to avoid the time and cost of re-litigation, the Commission recommends, as is already the case for Commission decisions, that final infringement decisions of Member States’ competition authorities should be considered sufficient proof of an infringement in subsequent actions for damages. This is common sense.
Taken together, these recommendations suggest an approach that is distinctly European – an approach that aligns Member States with the 2001 ruling by the European Court of Justice that victims of antitrust breaches have a right to compensation. We are offering a middle way between the hurdles to compensation that currently exist in most EU Member States and the over-incentives that lead to excessive litigation in some non-European jurisdictions.

In conclusion, I wholeheartedly invite all interested parties to write to the Commission with their comments – they have until 15 July.

I want to be 100% per cent clear here – if interested parties want this White Paper to be implemented, and sooner rather than later, then now is the time to make that voice heard.

And it may help to everyone remember two important questions when considering their comments. How do we do the right thing by the victims of antitrust violations? And what system will ensure the strongest future for competitive markets in the long-term?

The Commission is eager to better guarantee effective compensation for consumers and businesses that are victims of competition law infringements.

The Commission is passionate about justice for the citizens of Europe, and we look forward to working with everyone interested to achieve it.

Pierre Perrin-Monlouis
Pierre Perrin-Monlouis
Fondateur de Rente et Patrimoine (cabinet de gestion de patrimoine), Pierre Perrin-Monlouis est un analyste et trader pour compte propre. Il vous fait profiter de son expérience en trading grâce à ses analyses financières et décrypte pour vous les actualités des marchés. Son approche globale des marchés combine à la fois l'analyse technique et l'analyse fondamentale sur l'ensemble des marchés : crypto, forex, actions et matières premières.