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Quantifying Harm in Actions for Damages

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Quantifying harm in actions for damages

EU-flagget og de nordiske landenes flagg i Europaparlamentet i Brussel

The Materials on European Union Law of Competition, edited by Andrew Macnab, have been recently updated and now include 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, and an accompanying Practical Guide which was issued alongside the Commisison’s proposal for a Directive 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 (‘Draft Damages Directive’), adopted on 16 June 2013.

The Draft Damages Directive includes significant proposals in respect of accessing evidence held by competition authorities, including:

  • a complete prohibition on disclosure of leniency corporate statements and settlement submissions: Articles 6(1) and 7(1)of the Draft Damages Directive;
  • (b) a temporary prohibition on disclosure of other information prepared for the purposes of proceedings before a competition authority, until after the proceedings are closed: Article 6(2) and 7(2) of the Draft Damages Directive.

These prohibitions are proposed to bind competition authorities, undertakings investigated for breach of competition law, and also other undertakings that have documents in their possession through access to the file during the course of the competition authority’s investigation. The prohibitions are proposed in respect of documents/information relating to investigations by the Commission, as well as to investigations by national competition authorities.

The Commission’s Draft Guidance Paper on Quantifying Harm is also discussed in the following case from the Finnish District Court, Asphalt cartel damages actions, Municipality of Helsinki v Lemminkäinen Oyi and VLT Trading Oy, Case 09/10623, OCL 127 (FI 2013), 28th November 2013.