The principle of relative responsibility for harm in the Directive 2014/104/UE
Dr. Enrique Sanjuán y Muñoz
12th April 2019
As defined in Article 3 of the Directive, the injured party must be fully compensated. Articles 11.5, 11.6 and Article 19.4 of the Damage Directive reveal a principle that considers the responsibility of offenders in anti-competitive behavior based on the relativity of its participation. On the one hand, the relative responsibility is related to the concrete quota of participation and its calculation for each offender in the concrete conduct. This should be qualified considering several assumptions: a) there will nevertheless be a joint and several liabilities of all the offenders against the injured party; b) that relative responsibility will be determined based on the possibility of claiming that one of these offenders could face the other co-infringers when the compensation paid to the injured party is greater than the one that corresponds to him by virtue of that participation; c) the relative responsibility is determined based on criteria such as the turnover of each one of them, the market share, or the specific function that they would have had in the infringing conduct; d) the principles of effectiveness and equivalence must always be respected. In addition, cooperation, attenuating factors, and agreements of those who violate such conduct must be taken into consideration.
Accordingly, the relative liability set by the Directive distinguishes three cases: Firstly, responsibility towards those directly or indirectly injured. As an exception to this, where the infringer is a small or medium-sized enterprise (SME) as defined in Commission Recommendation 2003/361/EU, the infringer is liable only to its own direct and indirect purchasers, provided that the infringement has not been coerced to other companies to be part and certain requirements provided in art. 11.2 Directive; among them, their market share is less than 5% during the infringement or affect their viability. Secondly, responsibility towards injured third parties that is not direct or indirect. The rule of full responsibility is also qualified when the offender has been subject to a leniency program; in this case, he will only be responsible to his direct and indirect harmed ones, and even then only in front of others when the rest of the co-infringers have not satisfied the damage to these. Finally: liability to co-infringers. Here, we must distinguish three assumptions: (1) on the one hand the relative responsibility referred to the general regime that is established based on their participation; (2) in the second place, the liability derived from an offender subject to the leniency program in which case it is limited by their participation and in respect of the damages caused to their own direct or indirect injured parties; (3) third, in respect of losses other than direct or indirect losses, in which case it is quantified by its relative responsibility.
As rules to determine liability shares we should consider the following:
• There cannot be overcompensation.
• The emerging damage at any level of the supply chain will never be greater than the damage due to the additional cost suffered at that level.
• The aggrieved party may claim and obtain compensation for loss of profits also against the one that has passed, in whole or in part, the damage to a third party.
• The offender who has paid may claim against the rest of the offenders for the fee that corresponds to each one of them.
• If there has been an out-of-court settlement, the claim of the aggrieved party participating in the agreement will be reduced in the proportional part that the co-infringers with whom the agreement has been reached has the prejudice that the infringement of competition law caused to the party harmed.
• When the co-infringers who have not reached an out-of-court settlement cannot pay the damages corresponding to the remaining claim of the aggrieved party that reached the agreement, this may demand it from the co-infringers with whom the extrajudicial agreement has been reached. The co-framing party in an out-of-court settlement still has to pay damages when that is the only possibility that the aggrieved party gets compensation for the rest of the claim. The remainder of the claim consisting of the claim of the aggrieved party with whom an out-of-court settlement has been reached after deducting the amount of the damage that the infraction has caused to said aggrieved party corresponding to the co-defendant that is party to the out-of-court settlement. This latter possibility of demanding compensation from said offender exists unless it is expressly excluded in the terms of the extrajudicial agreement.
The calculation of said quota, which corresponds to the relative responsibility of a determined offender, is carried out with criteria such as turnover, market share or function in the cartel or infraction.
Dr. Enrique Sanjuán y Muñoz is a Senior Judge, specialized in Private and Commercial Law, and an Associate Professor of Private Law at the University of Málaga.