On 15 November 2016, the Luxembourg Parliament adopted the Law on certain rules governing actions for damages for competition law infringements and amending the amended Law of 23 October 2011 on competition (“Law”). It implements Directive 2014/104/EU of 26 November 2014 on antitrust damages actions (“Directive”).
The Law reflects the objectives of the Directive: improving the effectiveness of private enforcement as to infringements of European Union and national competition law and fine-tuning the interplay between private damages actions and public enforcement by the European Commission and national competition authorities.
On the one hand, the Law facilitates actions for damages through the introduction of certain specific procedural rules.
First, their exercise is simplified by a set of presumptions with respect to the existence of an infringement of competition law and its effects:
- an irrebuttable presumption of its existence in the event of an infringement of competition law found by a final decision of the Competition Council;
- evidence of the fact that such an infringement has occurred when it is established by a final decision of a competition authority of another Member State;
- a rebuttable presumption that cartel infringements cause harm; and
- a rebuttable presumption for the indirect purchaser who introduces an action for damages that the overcharge resulting from a competition law infringement has been passed on to him, the defendant having for his part, however, the possibility to invoke as a defence, in an action for damages introduced by a direct purchaser, that the latter passed on such an overcharge to a lower level of the distribution chain.
Second, access to evidence, essential for competition law-based claims, is facilitated through certain disclosure rules. Upon request of the claimant, a judge may, under certain conditions relating to the proportionality of such a request, order the disclosure of information, including with respect to evidence in the file of a competition authority. However, considering their importance for the public enforcement of competition law, statements made by companies for the purpose of a leniency application and settlement submissions are protected: they cannot be subject to a disclosure order and evidence related to them obtained solely through access to the file of a competition authority is inadmissible. Other evidence, including that established by a competition authority and sent to the parties in the course of proceedings, cannot be disclosed until that authority has closed its proceedings. In any event, the production of confidential evidence ordered by a judge is subject to certain protective measures.
Third, with the exception of certain specific rules applicable to small and medium-sized undertakings and immunity recipients, joint and several liability of undertakings which have infringed competition law through joint behaviour allows the injured party to require full compensation from any of them until it has been fully compensated.
Fourth, whereas the Directive imposes on Member States to ensure that limitation periods for bringing actions for damages are of at least five years, the Law refers in this respect to Luxembourgish general procedural law principles, which provide for a ten-year limitation period for commercial claims.
On the other hand, the Law encourages consensual dispute resolution. In accordance with the Directive, it provides for the suspension of the limitation period to bring an action for damages for the duration of the consensual dispute resolution process and the suspension of the proceedings relating to the action for damages during a maximum period of two years. In addition, certain rules govern the exercise of the remaining claim of the settling injured party.
Lastly, it is worth noting that the Law does not enact provisions relating to collective redress despite a Commission Recommendation of 11 June 2013 on collective redress inviting Member States to introduce mechanisms allowing for collective damages actions.