Valentin MIRCEA -Vice President, Romanian Competition Council
Competition Policy International
The European Commission eventually concluded, at the beginning of June, its long-‐lasting workings on the proper framing of private actions for damages arising out of infringements of competition law. The three documents issued on June 11, 2013 – the proposed Directive on Antitrust Damages Actions, the Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law, and the Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union – mark a new and perhaps decisive milestone for the uniform and steady evolution of actions whereby the victims of antitrust infringements will seek interim relief (injunctions) or full compensation. The freshly issued documents are built on surveys, analysis and debates which practically started back in 2001, when the European Court of Justice clearly affirmed, in Courage vs. Crehan (C-‐ 453/99), the right of those affected by wrongdoings in violation of Article 101 of the TFEU to obtain reparation for the damages incurred and stated that such claims are of the utmost importance for the effective safeguard of the interests protected by the competition rules.
The European Commission should be, of course, praised for its efforts in support of the private enforcement of the competition rules, but I would say that it was far from being an enthusiastic supporter of private plaintiffs. Its main purpose was, and still is, to avoid interference with public enforcement and especially with the leniency policy. So the European Commission efforts were focused on channeling the flow of private enforcement rather than on creating the conditions for increasing the volume and speed of cases going through this channel. The proposal for a directive, made on June 11, 2013, seems to be equally motivated by the need to introduce legal provisions that would offer an absolute protection to the leniency applicants, thus offsetting the potential negative impact on leniency after the more open approach of the Court of Justice in Pfleiderer (C-‐360/09) and Donau Chemie