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Retsudvalget 2008-09
KOM (2008) 0165 Bilag 4
Offentligt

European Commission

Directorate-General for Competition, Unit A 5

Damages actions for breach of the EC antitrust rules

B-1049 Brussels

MINISTER FOR ECONOMIC

AND BUSINESS AFFAIRS

The Commission’s White Paper on damages actions for breach of the

EC antitrust rules, COM (2008) 165 final

In April 2008, the Commission published a White Paper on damages ac-

tions for breach of the EC antitrust rules inviting for comments. The Dan-

ish Government would like to take this opportunity to thank the Commis-

sion for the opportunity to comment on this White Paper.

The Danish Government has the following general comments to the pa-

per:

As emphasized in its comments to the Green Paper the Danish Govern-

ment, in general, agrees with the Commission that obstacles may exist for

those who have suffered a loss in order to be compensated by a company,

which has violated the EC antitrust rules. Hence, Denmark welcomes ini-

tiatives set out to facilitate such actions for damages.

However, the Danish Government finds it important that such initiatives

are well-balanced to avoid, in connection with these initiatives, creating

new rules of procedure and compensation within the scope of competition

law differing substantially from what applies to general law of tort and

procedure. I.e., Denmark is not in support of specific tort and procedure

rules within the scope of competition law as we find that a claimant is

sufficiently protected and supported by our existing national rules.

Furthermore, the legal basis for the implementation in national law of the

Commission’s suggestions following the White Paper is still unclear. De-

pending on the legal basis of the initiatives suggested by the Commission,

implementation might be subject to the Danish reservation (in Danish: det

danske forbehold), cf. article 1 of the protocol on the position of Den-

mark attached to The Treaty of Amsterdam. Hence, the Danish Govern-

ment reserves the right to comment on this specific issue should it be rel-

evant.

Below please find the Danish Government’s comments to the proposed

measures:

1. Indirect purchasers and collective redress

MINISTRY OF ECONOMIC

AND BUSINESS AFFAIRS

Slotsholmsgade 10-12

DK-1216 Copenhagen K

Tel.

Fax

+45 33 92 33 50

+45 33 12 37 78

CVR no. 10 09 24 85

[email protected]

www.oem.dk

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According to Danish tort law any purchaser is eligible for damages for

the loss suffered, subject to proving said loss and the causal relation be-

tween the loss and the infringement. However, the general principle of

foreseeability as developed in Danish case law may lead to barring dam-

ages actions brought by certain indirect purchasers for reasons of remote-

ness. Hence, Denmark can support the principle set out by the Commis-

sion implying that any individual, i.e. including an indirect purchaser, can

claim damages for the loss suffered following an antitrust infringement

given that the courts are free to consider the questions of causal relation-

ship and foreseeability.

With regard to collective redress, a Danish law implying the possibility

under certain conditions to bring a class action based on the opt-in model

was effective as of 1 January 2008. According to Danish law, the group

representative in an opt-in action can be either i) a member of the class,

ii) an organisation, a private institution or another association if the action

falls within the scope of the objects of the association, or iii) a public au-

thority authorised by law to this effect.

Furthermore, the law provides for an opt-out action in case the damages

are below DKK 2000 (equalizing € 300) and only the consumer om-

budsman can be the group representative in such an opt-out action.

Denmark supports the Commission’s proposal to provide for legal possi-

bilities to bring collective actions for damages, provided the proposal will

be a minimum standard. Since the representative is appointed by the court

in each case, Denmark can not support the proposal that entities having

standing in one Member State should automatically have standing in all

other Member States without having to be certified in the latter.

Denmark would kindly request the Commission to clarify whether repre-

sentative actions both can be in the form of opt-in and opt-out, cf. para-

graph 52 of the staff working paper.

2. Access to evidence

The Danish Government appreciate that access to evidence is of utmost

importance to the claimant in order to pursue the damage claim. Howev-

er, the Danish Administration of Justice Act (in Danish: retsplejeloven)

already provides a possibility for the court following a request from one

of the parties to issue an order requiring the other party to the court case

or any relevant third party, including but not limited to authorities (taking

due account of the exercise of witness’ rights (in Danish: vidnefritagelse)

to provide evidence (in Danish: edition). Hence, Denmark in principle

supports the Commission’s proposal in relation hereto.

Furthermore, the Danish law of procedure includes a right for a claimant

to gain access to documents in a pending case, provided he has an essen-

tial interest in a specific issue, cf. chapter 3a, especially article 41d. This

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implies that a claimant can have access to evidence before he brings the

damage case before a court.

The Commission suggests adequate protection be given to confidential

information as well as to corporate statements of leniency applicants and

the investigations of competition authorities. According to the Danish

Administration of Justice Act, the court can decide if only a part of the

documents requested should be accessed. The Danish Government trusts

that the courts pay specific attention to confidential information, includ-

ing but not limited to information contained in leniency documents, when

operating within this provision, hence, Denmark can support this sugges-

tion.

Furthermore, the Commission suggests that except for cases of particular

urgency, the addressees of a disclosure order would have the right to be

heard. The Danish Government does not find any basis for deviating from

the statutory right to be heard, even in the case of urgency.

Regarding the prevention of destruction of evidence the Danish law of

procedure allows the failure of a party to produce documents to have

prejudicial effect (in Danish: processuel skadevirkning). Hence, the Dan-

ish law already provides for deterrent sanctions.

3. Binding effect of NCA decisions

Denmark agrees that binding effect of NCA decisions would increase the

effectiveness and procedural efficiency of actions for antitrust damages.

However, binding effect of NCA decisions also raises some fundamental

questions regarding binding effect of administrative decisions from other

national competition authorities, which must be considered carefully:

Firstly, it may be mentioned that court decisions from other EC countries

have binding effect, cf. the Bruxelles I regulation, which lays down de-

tailed rules on jurisdiction and recognition and enforcement of judge-

ments. Likewise, binding effect of administrative decisions calls for de-

tailed rules regarding the same sort of questions as in the Bruxelles I reg-

ulation.

Secondly, as a general rule of Danish law administrative decisions do not

have binding effect for the courts as the casehandling of the administra-

tive authorities normally do not, and should not, meet the same high

standards of procedural guaranties as the proceedings of the courts. How-

ever, the decisions of the Danish Competition Appeals Tribunal may un-

der certain circumstances have binding effect because the administrative

proceedings and the appeals body meet certain procedural guaranties.

Thus, it may be mentioned that the system is two-tried, the Danish Com-

petition Appeals Tribunal is a quasi-judicial body, the chairman of the

tribunal is a member of the Supreme Court, the other members of the tri-

bunal are independent legal or economic experts and the addressee of the

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decision can bring the decision before the courts within 8 weeks. The

binding effect of decisions of other national competition authorities

would require that the proceedings and bodies of the Member States all

meet the same or similar procedural guaranties.

On this basis, the Danish Government will not at present be able to sup-

port a general rule implying binding effect of a decision from another na-

tional competition authority.

4. Fault requirement

The Danish Government supports the Commission’s view, that it is not

necessary for ensuring effective damages actions to introduce across the

EU a harmonised notion of fault or a strict liability.

However, the Danish Government finds that the Commission with the

proposal on fault requirement nonetheless strongly seems to approximate

the introduction of strict liability.

According to the Commission’s suggestion once a victim has shown a

breach of Art. 81 or 82, the infringer should be liable for damages caused

unless he demonstrates that the infringement was a result of a genuinely

excusable error.

In Denmark the fault requirement follows from Danish case law and is

based on the principle of culpa. Said principle of culpa is well incorpo-

rated and any deviation will be a contradiction to Danish case law. The

Danish Government finds no reason to deviate from the general require-

ments of tort law, as developed in case law, by setting up special rules on

liability when dealing with competition law infringement. Hence, the

Danish Government cannot support a common EU standard for fault re-

quirement. Moreover, the Danish Government fears that the introduction

of the concept of “genuinely excusable error” may lead to legal uncertain-

ty.

5. Damages

The Danish Government is in agreement with the principle of full com-

pensation for the loss suffered, as developed in Danish case law, i.e. the

actual loss, the loss of profit and a right to interest. However the Danish

Government does not share the Commission’s view that for reasons of le-

gal certainty the definition of damages should be codified in a Communi-

ty legislative instrument.

Denmark notes that the suggestion in the Green Paper regarding “punitive

damages” and “double damages”, which includes an element of punish-

ment, and thus in our opinion is not in coherence with the objective of

private damages actions, has been deleted.

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Furthermore, the Danish Government supports the Commission’s issuing

of non-binding guidelines on the calculation of damages.

6. Passing-on overcharges

The Danish Government appreciates the difficulties in relation to the

passing-on of overcharge to the next line of purchasers.

In Danish case law the question of passing-on of overcharge has been in-

voked and assessed in all 3 competition law damages cases up till now,

cf. GT-Link (published in the Danish weekly law report “Ugeskrift for

Retsvæsen” (U) 2005 page 217), and EKKO I (U2004 page 2600) and

EKKO II (U2005 page 388). In all 3 cases the issue of passing-on has

been discussed in connection with the calculation of damages. Hence, the

passing-on-defence is a mere discussion issue when calculating the dam-

ages in order to prevent an unjust enrichment.

Consequently, Denmark supports the Commission’s suggestion that de-

fendants should be entitled to invoke the passing-on defence against a

claim for compensation of the overcharge, and that the burden of proof in

this respect lies with the defendant. This will be in accordance with the

Danish principle of assessment of damages, where the claimant has a

right to full compensation corresponding to the actual loss experienced,

but not the right to gain an unjust enrichment following a damage action.

As to the question on the burden of proof, Denmark would like to express

concern as to the stipulation on rules in this regard. It should be a matter

for the courts to decide – in respect to the given circumstances in a case –

where the burden of proof lies, also when it comes to the issue on the

passing-on of overcharge.

The proposal on the rebuttable presumption, that the illegal overcharge

was passed on in its entirety, which can be invoked by an indirect pur-

chaser, will only be in accordance with Danish law, if it is still subject to

the principle of freedom to consider evidence. Denmark finds no reason

to deviate from this general principle of procedure law.

7. Limitation periods

The Danish Government agrees with the Commission that a limitation

periode cannot be such that it renders the right to seek compensation

practically impossible or excessively difficult.

In June 2007 the Danish parliament passed a new law on limitations. The

new law came into effect on 1 January 2008. The law implies a suspen-

sion of the limitation period while a case is being considered by the au-

thority. Further to the suspension of limitation, the new law implies that a

claimant will be provided a period of 1 year from the date of the authority

decision in order to bring a claim for damages before the civil court.

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The suspension of limitation and granting of the further 1-year period to

bring a claim for damages are implemented in the Danish competition

act, cf. article 25.

The Danish Government is of the opinion that damage claims are suffi-

ciently supported by this new rule in national Danish legislation on limi-

tation and, thus, cannot support the Commission’s suggestion of a new

limitation period of 2 years effective as of the date of the final infringe-

ment decision by an authority.

Furthermore, with regard to the Commission’s suggestion that in the cas-

es of a continuous or repeated infringement the limitation period should

not start to run before the day on which the infringement ceases, this is

contrary to Danish law. According to Danish law each single claim of

damages resulting from a case of infringement will be evaluated separate-

ly, and thus be subject to limitation separately. Further, the limitation pe-

riod as a general rule runs from the occurrence of the infringement.

Hence, the Danish Government cannot support the Commission’s sugges-

tion in relation to limitation periods.

8. Costs of damages actions

The Commission’s suggestion regarding the fostering of settlements, as a

way to reduce costs, can be supported by Denmark. In Denmark there are

two types of Court Mediation systems. As for the first type (in Danish:

Forligsmægling), the judge of the case mediates between the parties. As

for the second type (in Danish: Retsmægling), another judge than the

judge of the case or a barrister specialised in mediation mediates between

the parties. The latter type is an alternative mediation system, which is ef-

fective as of 1 April 2008, and which allows the mediator to settle the

dispute on the basis of the interests, needs and future of the parties.

The looser-pays principle is statutory in the Danish Administration of

Justice Act. It is however, possible for judges in special circumstances to

rule that the looser does not pay any costs or only pays a part of the costs,

but it is not possible for the judges to issue an - up front - cost protection

order. This will require an amendment to the Danish Administration of

Justice Act.

The Danish Government cannot support the proposed possibility to issue

an - up front - cost protection order.

9. Interaction between leniency programmes and actions for damages

In general, the Danish Government supports the Commission’s sugges-

tion to protect leniency applicants against disclosure unless it follows

otherwise from a court order.

As stated above under “2. Access to evidence” it follows from the Danish

Administration of Justice Act that the court can decide if only a part of

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the documents requested should be disclosed. The Danish Government

trusts that the courts pay specific attention to confidential information, in-

cluding but not limited to information contained in leniency documents,

when operating within this provision.

The question was raised in connection with the implementation of the le-

niency programme, effective in Denmark as of 1 July 2007. The working

committee discussed if the existing rules on access to (leniency) docu-

ments following the Danish Administration of Justice Act (in Danish:

edition) would have impact on the efficiency of the leniency programme.

The committee, however, found no current need to limit the present ac-

cess to documents.

The Danish Government has noted that the Commission considers it ap-

propriate to give further reflection to a possible limitation of the immuni-

ty recipient’s civil liability to his direct and indirect contractual partners.

In this respect, the Danish Government would like the Commission to

note that the removal or limitation of joint liability for leniency applicants

(

successful immunity applicants) will be contrary to Danish tort law tra-

dition and, thus, cannot be expected to be supported.

Yours sincerely,

Lene Espersen

Minister for Economic and Business Affairs