Seminar on European Competition Law for National Judges
The Role of National Judges in Antitrust Litigation in the Light of the EU Damages Directive
On February 24 and 25, 2017, 31 judges from 18 countries gathered to participate in a seminar organised by the Hungarian Competition Authority (GVH) through the OECD-GVH Regional Centre for Competition in Budapest. The seminar focused on the role of national judges in antitrust litigation in the light of 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 (“EU Damages Directive”).
The deadline for Member States to implement the EU Damages Directive into their national legal systems was 27th December 2016, and the seminar was therefore aimed at raising the awareness of national judges about the new rules derived from the text of the directive, as these rules would now have to be taken into consideration by the judges in the accomplishment of their duties.
The two-day seminar was designed to not only provide participants with the necessary tools and information they would need in order to better understand the directive’s provisions, but to also provide them with opportunities to sharetheir thoughts and experience with their counterparts and the experts.
The participation of a diverse range of speakers was aimed at providing the participants with different views and expertise. EU Courts and national courts were thus represented by the chairman (Mr. Vivien Terrien, Référendaire at the General Court of the European Union) and Dr. Georg Kodek (Judge at the Supreme Court of Justice of Austria) in order to provide national judges with a familiar understanding of the difficulties that the judiciary regularly faces. Since economics has an important role to play in the issues raised by the EU Damages Directive, the contributions of Mr. Iestyn Williams (Partner at RBB Economics), co-author of the study on the passing-on of overcharges delivered for the Directorate General for Competition of the European Commission, were particularly relevant. The intense works of the OECD in this field were presented in‑depth by Ms. Sabine Zigelski (Senior Competition Expert at the OECD). As the involvement of national competition authorities is crucial to the implementation of the EU Damages Directive, the experience of Mr. Tamás Számadó (Head of the Litigation Section of the Hungarian Competition Authority) was essential. Finally, the daily activity of CDC Cartel Damage Claims consisting in antitrust private enforcement, the knowledge of Mr. Martin Seegers (Partner at CDC Cartel Damage Claims) was a key factor for the success of this event.
The seminar examined the impact of the EU Damages Directive on the tasks national judges have to undertake in antitrust litigation. Pursuant to this objective, seven panels were set up to cover the most essential issues of interest with regard to national courts’ competences.
The introductory panel offered the possibility to all speakers to present one fundamental aspect that underlies the necessity and/or the spirit of that directive.
Mr. Terrien went through the case law related to the principles of equivalence and effectiveness, now enshrined in Article 4 of the EU Damages Directive. Ms. Zigelski talked about public and private antitrust enforcement in competition law. Mr. Számadó described the negotiation and implementation processes of the directive in light of his personal involvement within these tasks in Hungary. Mr. Seegers drew the participants’ attention to the obstacles that victims face when attempting to seek compensation for the damages they have suffered due to antitrust violations. Mr. Williams underlined the importance of economists in private competition litigation. Finally, Mr. Kodek raised awareness among the national judges about their role in actions for damages after the implementation of the directive.
Three panels were dedicated to specific aspects of the EU Damages Directive.
They were all preceded by a breakout session during which participants were asked to examine a hypothetical case and discuss it among each other under the supervision of an expert. The session on “disclosure of evidence” allowed the representative of the EU General Court to present the relevant case law on this issue in the context of antitrust private actions. The representative of the Hungarian competition authority addressed the problems raised with regard to access to the national competition authorities’ (NCAs) files. The panel focused on the quantification of harm proposed a discussion between a lawyer (Mr. Seegers) and an economist (Mr. Williams) to clear up the legal and economic sides of this issue. Finally, a panel was dedicated to the passing-on of overcharges. Mr. Williams, co-author of the study on this topic ordered by the European Commission, started with a presentation of the main difficulties and the ways in which they can be solved. His intervention was followed by an explanation of the evidential burden given by the CDC representative.
Two panels targeted broader goals, with the aim of placing the EU Damages Directive within its legal environment.
Accordingly, one specific session dealt with jurisdictional issues and one session emphasised the use of cooperation mechanisms. As to the former, first, Mr. Terrien reviewed the most recent EU cases interpreting the provisions of Regulation 44/2001 (now Regulation 1215/2012) in the context of actions for damages. Second, Mr. Seegers detailed the victims’ litigation strategy and the potential difficulties that national courts could face in terms of competences. As to the latter, Mr. Terrien recalled the principles underlying the preliminary ruling procedure in order to make sure that national judges would be comfortable in using this tool in case of questions due to the implementation of the directive’s provisions into national law. Mr. Számadó then talked about the cooperation mechanisms between national courts and national competition authorities.
The final panel addressed three “technical” issues covered in the EU Damages Directive that national judges have to be aware of when dealing with private actions seeking damages for antitrust violations.
Mr. Seegers illustrated the relation between of joint and several liability with consensual settlements through the use of using existing examples taken from his own practice. Mr. Számadó mentioned the effect of national decisions in other Member States with regard to the scope of national judges’ competences. Finally, Mr. Terrien briefly tackled the issues raised by limitation periods.
Except for the final panel, Judge Kodek intervened at the end of all panels in order to give the opinion of a national judge after having heard the other experts. In this way, participants could better grasp the relevance of the speakers’ interventions in light of Dr. Kodek’s comments. His contributions were also designed to clarify any points included in the hypotheticals.
Therefore, the content of the seminar allowed the participants to get (i) a detailed picture of the main issues triggered by the EU Damages Directive, (ii) practical tips and hints to tackle these problems and (iii) knowledge of the key national cases and relevant EU case law.
All documents (presentations, cases, hypotheticals, reading materials, bibliography) are available on this website under the Downloads section for judges who have participated in one of our seminars and are registered users of the website.