The new Directive on antitrust damages actions, which has been signed into law on 26 November 2014, acknowledges a right to compensation for anyone who has suffered harm caused by a cartel.

Until now and for a majority of EU countries, cartel issues have been dealt with only through a public enforcement of European antitrust law by national competition authorities

A few jurisdictions, in Germany, United Kingdom and the Netherlands, have been familiar for many years with private litigation connected to cartel damages. For many jurisdictions, however, this will constitute a new layer of possible liability applicable to cartel participants, in addition to the possible fines and sanctions imposed by national competition authorities.

Nevertheless, the Directive is protecting leniency programmes, the possibility of full or partial immunity granted by national competition authorities for a cartel participant who is providing information about the cartel. A claimant will not be able to obtain a court order for access to documents related to companies cooperating with the competition authority. This constitutes a powerful incentive for companies to choose the cooperation and the settlement options.

The status of whistle blower is now beneficial for two reasons: possible immunity and reduced fines from the competition authorities, and the chance to avoid civil litigation and damage claims from individuals in courts.

Expanding remedies

With this new Directive, European antitrust laws are expanding beyond public enforcement through national competition authorities to civil remedies through the courts and the full compensation of the damages resulting from a cartel.

The text will start to apply in the 28 EU countries with the introduction, phased in over two years, of these new requirements into their national legal systems.

This was part of a package of measures released in June 2013 by the European Commission which aims to facilitate actions for damages across the European Union.

If the Directive here specifically deals with antitrust violations and damages actions in the antitrust field, this package also included, among others, a recommendation setting out common principles to be followed by member states when implementing collective redress schemes by July 2015.