Actions for damages for infringements of competition law

The draft law n° 6968 on certain rules governing actions for damages for infringements of competition law (hereinafter the “Draft Law”) amends the law of October 23rd 2001 on competition law and transposes into Luxembourg law the Directive of the European Parliament and of the Council on antitrust damages actions dated 26 November 2014 (hereinafter the “Directive”).

The majority of the Directive’s provisions in the matter of antitrust damages actions already exist under Luxembourg law.

"As a consequence, the Draft Law will be applicable in addition to actions for damages as already foreseen in the national law and in case of conflict, the Draft Law shall prevail."

Until now, the exercise of the right to compensation faced a major obstacle which was that of access to evidence. Actions for damages in cases involving agreements generally require consideration of many facts. The difficulty inherent to agreements is that relevant evidence is difficult to bring because the parties are often subject to professional secrecy.

The Draft Law’s purpose is to optimise the interaction between implementation of competition rules by the public sphere and the implementation at the initiative of the private sphere.

However, the Draft Law’s main interest is to keep a consistent policy of implementation of competition law in the public sphere, while, at the same time, allowing the victims of violations of the competition law to obtain compensation for the damage they have suffered.

As a consequence, the Draft Law sets the rules of access to evidence and allows both parties to the legal proceedings to ask the judge to require disclosure of certain information necessary for their action.

For the sake of avoiding that the disclosure of evidence would jeopardize the confidentiality of evidence in the public sphere, the Draft Law foresees some limits. For example, the disclosure of the statements made by companies for the purpose of a leniency application may never be ordered in the framework of the actions for damages.

Under certain circumstances third parties and authorities, such as the Competition Council (“Conseil de la Concurrence”) may be requested to divulge evidence.