The EU Directive on Antitrust Damages Actions (2014/104/EU, 4 December 2014) is designed to make it easier for businesses and individuals to claim compensation for breaches of European competition law. The UK has until 27 December 2016 to implement the Directive into the national legislation. Although many of the requirements of the Directive are already part of UK law, the implementation will require changes to primary and secondary legislation, including changes to the Competition Act 1998, the Civil Procedure Rules, as well as other relevant rules of court and the Competition Appeal Tribunal (CAT) Rules. Legislative changes required to implement the Directive will have an impact in the Devolved Administrations, there are for example divergent limitation periods in different parts of the UK. This may also be an opportunity to change the unnecessarily complex and opaque transitional periods in the CAT which were introduced by the Consumer Rights Act 2015 and the CAT Rules 2015.
The Government published the Impact Assessment and issued a Consultation. Shepherd and Wedderburn’s competition team responded to the Consultation and our response can be found here.
In summary, the Government sought views on the following questions:
- Implementing the Directive as a 'single regime'; applying the required changes to the UK and the EU competition law (rather than having a dual regime where the Directive applies to EU actions only);
- Limitation periods and trigger points;
- Implementation Date;
- Changes to disclosure rules that will require amendment of the Civil Procedure Rules;
- Changes to Competition Act 1998 to incorporate passing on defence;
- Publication of guidance on quantification of damages, setting out the appropriate methodology for calculating the harm caused;
- Changes that will be required to Competition Act 1998 to codify joint and several liability, which is already a well-established principle under the UK case-law;
- Changes that will be required to the Competition Act 1998 to include the explicit suspension of limitation in circumstances where consensual dispute resolution is undertaken as required by the Directive.
Concluding remarks
The changes required by the Directive form part of the overall policy drive, in the UK and the EU, to encourage private actions for damages following antitrust infringements, and closely follow the Consumer Rights Act 2015 that came into force on 1 October 2015 in the UK. As businesses and private individuals are encouraged to make use of the legal avenues to claim damages arising from competition law breaches, it is pertinent for businesses to review their competition compliance policies.
Shepherd and Wedderburn competition law experts and litigators have experience of follow-on and stand-alone competition damages claims and can assist with any queries.