UNIVERSITEIT VAN AMSTERDAM Spring Semester 2017
Master’s Thesis
THE POSSIBILITY OF USING COMMITMENT
DECISIONS OF THE EUROPEAN
COMMISSION UNDER ART.9 OF
REGULATION NO. 1/2003 AS A SOURCE OF
EVIDENCE IN ACTIONS FOR ANTI-TRUST
DAMAGES BEFORE NATIONAL COURTS OF
THE MEMBER STATES
Hazar Başar
11359188
hazarbsr@gmail.com
Master Track: European Competition Law and Regulation
Supervisor: Dr. Daniela Obradovic
Faculteit der Rechtsgeleerdheid, Europees Recht
2
ndReader: Dr. Ronald H. Van Ooik
Faculteit der Rechtsgeleerdheid, Europees Recht
Abstract
This paper aims to examine the effectiveness of the EU ‘Damages Directive’ in facilitating the rights of individuals to rely on the Commission’s commitment decisions given under Art.9 of Regulation No. 1/2003 in order to vindicate their right to claim damages caused by anti-trust
violations in civil proceedings. In particular, this paper demonstrates that, without developing unified legal understanding on evidential value of commitment decisions, different
applications of national courts of the Member States may undermine the effective use of right to claim damages caused by competition law infringements which is guaranteed by the Damages Directive. This problem is significant since it does not only create legal uncertainty for individuals suffering from anti-trust violations, but also it may prevent the Commission to
achieve its public enforcement objectives.
For the sake of an effective solution for this legal problem, the main finding of the paper is that public enforcement objectives should be prioritised since it is more likely to serve for public interests. Furthermore, different from other disciplines, competition law has a unique
nature thanks to its close relation with economy. Therefore, while providing solution for enforcement problems within the EU, establishment of a well-functioning internal market
should always be taken into consideration as the ultimate goal of EU competition law enforcement. In this context, undertaking side of the market should be equally evaluated in order to provide economic efficiency. Commitment decision procedure pursuant to Art.9 of Regulation No.1/2003 aims to encourage undertakings under investigation to cooperate with
the Commission in order to meet competition law concerns by providing some important advantages for all the parts. This paper finds that the increase of the use of commitment
decisions as a source of evidence in actions for anti-trust damages would discourage undertakings to enter into commitment decision procedure and this result would inevitably
lead to a deviation from public enforcement objectives of the EU. Nonetheless, it is still possible to protect the right to claim damages. The use of voluntary and immediate compensation clause in commitment decision, consumer involvement in market test before making commitment decision binding, publishing more detailed preliminary assessment of the
Commission and providing sufficient factual background etc. are recommended in this paper as convenient and efficient solutions.
1. INTRODUCTION ____________________________________________________________ 8 1.1. PROBLEM _______________________________________________________________ 8
1.2. RESEARCH QUESTION ____________________________________________________ 10
1.3. THE AIM OF THE PAPER___________________________________________________ 11
1.4. HYPOTHESIS ____________________________________________________________ 11
1.5. THE STRUCTURE OF THE PAPER ____________________________________________ 12
2. ENFORCEMENT OF EU COMPETITION RULES _______________________________ 12 2.1. PRIVATE ENFORCEMENT OF EUCOMPETITION RULES _________________________ 13
2.1.1. Actions for Damages in EU Competition Law _____________________________ 14 2.1.1.1. Legislative Ground for Action for Anti-Trust Damages______________________ 17
2.1.2. THE OBSTACLES TO THE ABILITY OF INDIVIDUALS TO CLAIM DAMAGES FOR
INFRINGEMENT OF EUCOMPETITION RULES________________________________________ 19
2.1.2.1. DIFFICULTIES ON ACCESS TO EVIDENCE IN ACTIONS FOR ANTI-TRUST DAMAGES AND DISCLOSURE OF EVIDENCE ___________________________________________________ 19
2.1.2.1.1. Access to the Commission’s Files ___________________________________________________ 21 2.1.2.1.2. Access to Documents Held by National Competition Authorities _________________________ 22
2.2. PUBLIC ENFORCEMENT OF EUCOMPETITION RULES __________________________ 22
2.2.1. Commitment Decisions of the Commission under Art.9 of Regulation No. 1/2003 24
2.2.1.1. Legal Status of Commitment Decision of the Commission and Its Effects__________________ 24 2.2.1.2. Commitment Decisions as Evidence/Legal Ground in Antitrust Damages Actions within the EU Competition Law ___________________________________________________________________________ 28 2.2.1.2.1. Evidential Value of Commitment Decision in Actions for Damages ____________________ 30
2.2.1.2.2. Access to Commission’s Files (Documents Drafted within the Commitment Decision Procedure) 32
3. THE INTERPLAY AND CONFLICT BETWEEN PUBLIC ENFORCEMENT
OBJECTIVES AND PRIVATE ENFORCEMENT OF EU COMPETITION RULES IN THE CONTEXT OF THE USE OF COMMITMENT DECISION OF THE COMMISSION UNDER ART.9 OF REGULATION NO. 1/2003 AS EVIDENCE IN ACTIONS FOR DAMAGES
UNDER THE DIRECTIVE 2014/104/EU _____________________________________________ 35 3.1. OBJECTIVES AND ADVANTAGES OF COMMITMENT DECISION PROCEDURE UNDER
ART.9 OF REGULATION NO.1/2003 AS A PUBLIC ENFORCEMENT TOOL __________________ 36
3.2. PRIORITISATION OF PUBLIC ENFORCEMENT:WHY PUBLIC ENFORCEMENT IN THE
CONTEXT OF COMMITMENT DECISION IS MORE EFFECTIVE THAN PRIVATE ENFORCEMENT?38
4. RECOMMENDATIONS ON THE CONFLICT CAUSED BY THE UNCLEARNESS FOR THE USE OF COMMITMENT DECISIONS AS EVIDENCE IN ACTIONS FOR
ANTI-TRUST DAMAGES ______________________________________________________________ 42
List of Abbreviations
Abbreviation Meaning Page
- EU European Union 1
- TFEU Treaty on the Functioning of the European Union
1
- TEU Treaty on the European
Union
List of Cases Cases Before EU Courts
I. Cases before the Court of Justice of the European Union 1. Case C-127/73 BRT v. SABAM, ECLI:EU:C:1974:25
2. Joined Cases C-6/90 and C-9/90 Andrea Francovich and Italian Republic v. Danila Bonifaci and Others and Italian Republic, ECLI:EU:C:1991:428
3. Case C-453/99 Courage Ltd. v. Bernard Crehan, ECLI:EU:C:2001:465
4. Joined Cases C-295/04 and C-298/04 Vincenzo Manfredi v. Lloyd Adriatico Assicurazioni SpA, ECLI:EU:C:2006:461
5. Case C-441/07 P European Commission v. Alrosa Company Ltd., ECLI:EU:C:2010:377
6. Case C-360/09 Pfleiderer AG v. Bundeskartellamt, ECLI:EU:C:2011:389
7. Case C-199/11 Europese Gemeenschap v. OTIS NV., ECLI:EU:C:2012:684
8. Case C-536/11 Bundeswettbewerbsbehörde v. Donau Chemie AG, ECLI:EU:C:2013:366
9. Case C-365/12 P European Commission v. EnBW Energie Baden – Württemberg AG, ECLI:EU:C:2014:112
10. Case C-557/12 Kone AG and OTIS GmbH v. ÖBB Infrastruktur AG, ECLI:EU:C:2014:1317
II. Cases before the General Court of the European Union
1. Case T-437/08 CDC Hydrogene Peroxide v. European Commission, ECLI:EU:T:2011:752
III. Cases before the Court of First Instance of the European Union
1. Case T-87/96 Assicurazioni Generali and Unicredito v. European Commission, ECLI:EU:T:1999:37
List of Legislation
A) Selected Legislation of the European Union
1. Consolidated version of the Treaty on European Union, OJ C 326, 26.10.2012, p. 13– 390
2. Consolidated version of the Treaty on the Functioning of the European Union, OJ C 326, 26.10.2012, p. 47–390
3. Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003, p. 1–25
4. Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission Documents, 2001 L 145/43
5. Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty, OJ L 123, 27.4.2004, p. 18–24
6. Directive 2014/104/EU of the European Parliament and of the Council of 26
November 2014 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, OJ L 349, 5.12.2014, p. 1–19
1. INTRODUCTION
1.1. Problem
An active competition in open internal market within the European Union (hereinafter, ‘the EU’) provides economic efficiency for the Member States by leading undertakings to be more productive and potentially innovative1. With respect to this approach, establishment of a highly
competitive internal market is defined as one of the purposes of the EU under Art. 3(3) of the Treaty on the European Union (hereinafter, ‘TEU’). In addition to this, according to Art.3(1/b) of Treaty on the Functioning of the EU (hereinafter, ‘TFEU’), the Union has an exclusive competence on establishing competition rules necessary for the functioning of the internal market. As a matter of course, enforcement and rule-making are integral parts of law. Therefore, competition law enforcement is a key element for establishing a well-functioning internal market and bringing economic growth to the EU territory.
EU Competition Rules are enforced both by public and private enforcement tools. Both forms are expected to be used as complementary ways for providing an efficient enforcement since they are serving for the same objective which is to deter anti-competitive practices prohibited by EU competition rules and protect consumer welfare by providing remedies for damages caused by those practices2. Therefore, private enforcement of EU competition rules
must be provided as effective as public enforcement by the hand of actions for damages.
Before the adoption of the Directive 2014/104/EU of the European Parliament and of the Council 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 (hereinafter, ‘Damages Directive’), the Court of Justice of the EU (hereinafter, ‘the Court) had discussed the effective use of right to damages of individuals in some of its judgements (e.g. Manfredi
C-298/04 and Courage C-453/99). In the light of these judgements, it was settled that, as a matter
of EU law, any individual must be able to claim compensation for harms caused by
1 Green Paper for Damages Actions for Breach of the EC Anti-trust Rules, the European
Commission, SEC(2005) 1732, Brussels, 19.12.2005, p.3
infringement of EU competition rules3. However, due to either lack of appropriate national rules
or different procedural understanding between Member States, victims of competition law infringement could not effectively use their right to damages in the EU territory4. Furthermore,
there were lots of unclear issues regarding the interplay between public enforcement rules and private enforcement tools, especially on the principle of access to evidence.
To come with an appropriate solution for these issues in EU level, the Damages Directive has been adopted in conjunction with Council Regulation No. 1/2003 on the implementation of the rules on competition laid down in Art. 81 and 82 of the Treaty (hereinafter, ‘Reg. 1/2003’). The main objective of this Directive is to ensure effective private enforcement by increasing legal certainty and reducing differences between Member States as to the rules governing actions for damages for infringement of both EU competition law and national competition law where that is applied in parallel with the Union law5. Additionally, in Recital 6 of the Damages
Directive, the necessity of the coordination between public and private enforcement tools is emphasised.
Although the Damages Directive is clearly intended to provide a solid legal basis for facilitating the use of right to damages by individuals in civil proceedings, its practical effectiveness is still under questioning. Even if, pursuant to Art. 16(1) of Reg. 1/2003, the Commission’s decisions finding competition law infringement are binding for national authorities, the claimant in actions for damages still has to prove the causal link between the harm and anti-competitive practice. Therefore, claimants in follow-on actions for damages need to have access to evidence, mainly Commission’s files including confidential information. This situation may create a conflict between the obligation of the Commission not to disclose confidential information (Art.339 TFEU and Art.28 of Reg.1/2003) and the effective application of right to damages (Art.3-5 of Damages Directive).
In the case of commitment decisions given by the Commission according to Art.9 of Reg.1/2003, actions for damages brought by an individual will be stand-alone actions since
3Commission Staff Woking Document Executive Summary of Impact Assessment on
Damages Actions for Breach of the EU Anti-Trust Rules, SWD(2003) 204 final, Strasbourg, 11.06.2013, Section 1, p.2
4 Ibid, p.2
there is no prior and binding infringement decision. The Damages Directive remains quiet for this issue. Since the European Commission’s commitment decisions do not contain any declaration on the existence of infringement, claimant has to, firstly, prove the existence of an infringement. This means that claimants who rely on commitment decisions in competition law damages actions will face more difficulties than the ones filing their cases as follow-on actions. However, the evidential value of commitment decisions is unclear.
Furthermore, despite the fact that the Damages Directive draw a roadmap for disclosure of evidence in actions for damages and it reinforces national authorities to adapt their procedural rules in favour of claimants to provide effective remedies6, the attitude of the Damages
Directive regarding disclosure of evidence and the scope for access to Commission’s investigation files is unclear in the case of actions for damages depending on commitment decisions. In this context, how to interpret the accessibility of confidential information contained in commitment decisions is also problematic.
The differences between the attitudes of national courts regarding the evidential value of the Commission’s commitment decisions may create controversy between the purposes of public enforcement and private enforcement tools since the tendency of undertakings to apply for commitment decision procedure under Reg. 1/2003 will inevitably decrease as the use of commitment decisions increase in anti-trust damages actions as a strong evidence.
1.2. Research Question
This thesis work mainly aims to examine whether the Damages Directive facilitate the right of individuals to rely on the Commission’s commitment decisions in order to vindicate their right to claim damages caused by anti-trust violations in civil proceedings. To come up with a solution, the evidential value of commitment decisions in actions for damages will be analysed by comparing with infringement decisions.
Since the difference between the legal status of commitment decision and infringement decision has a significant impact on the interpretation of provisions regarding the extent of the
6 Antitrust: Commission welcomes Parliament vote to facilitate damages claims by victims of
right to have access to Commission’s files, legal understandings of those concepts will be examined within the context of EU competition law.
Accordingly, how confidential information of undertakings should be protected under the Damages Directive in the case of commitment decision will be analysed by evaluating the driving forces behind the EU legislation regarding both private and public enforcement of EU competition law.
This thesis also intends to achieve a solution which is able to protect the desired balance and coordination between public and private enforcement tools of EU competition rules. Therefore, the potential controversy between those tools will also be examined.
1.3. The Aim of the Paper
The Damages Directive tried to facilitate the right to damages of individuals by removing obstacles and differences between Member States. However, some ‘grey zones’ still remained such as the use of commitment decisions of the Commission as a source of evidence in actions for damages based on EU competition law infringement. The aim of this thesis is to clarify the legal problem on this issue and to present a solution regarding the potential legal problems in the use of commitment decisions in anti-trust damages claims.
After all discussions, the controversy between private enforcement within the meaning of damages actions and public enforcement within the meaning of commitment decisions will be tried to be solved as the ultimate aim of my thesis.
1.4. Hypothesis
It is obvious that commitment decisions of the Commission have a different nature and legal status from infringement decisions. Therefore, the use of commitment decisions in anti-trust damages proceedings are expected to be more limited than infringement decisions. This situation would not make the private enforcement of competition law ineffective since it is accepted that public enforcement has already been achieved by commitment decisions. On the other hand, there should be an opportunity to rely on commitment decisions in anti-trust damages actions since an individual harm might have been occurred. Therefore, all the suspicion of the Commission and the findings achieved during preliminary investigation should
be available to be used by claimants in anti-trust damages proceedings. However, the full disclosure of evidence does not seem acceptable since it may have catastrophic consequences for undertakings whose confidential information is disclosed. Thus, it is predicted that, at the end of my thesis, the Damages Directive theoretically facilitate the right of individuals to rely on the Commission’s commitment decisions in order to vindicate their right to claim anti-trust damages. However, in fact, due to several difficulties regarding disclosure of evidence, the Directive does not grant right to damage effectively in the context of commitment decisions.
1.5. The Structure of the Paper
Since this thesis focuses on the use of a public enforcement tool in a private enforcement way, there will be two main sections to come to targeted discussion and conclusion. First of all, private enforcement of EU competition law will be principally explained by assessing the developments brought by the Damages Directive. More specifically, conditions for assertion of anti-trust damage claims within the EU, disclosure of evidence in actions for damages and its limitations will be analysed.
Following this, in a comparison with infringement decisions, legal status of the commitment decisions of the Commission will be examined under the explanations regarding public enforcement of EU competition rules. Then, its legal impacts on actions for damages and disclosure of evidence will be questioned.
The thesis will be concluded by providing a critical assessment on the attainment of public enforcement and private enforcement objectives. By doing that, a plausible solution will be achieved about the use of commitment decisions as a source of evidence in action for anti-trust damages.
2. ENFORCEMENT OF EU COMPETITION RULES
In order to point out the potential conflict between public enforcement tools and private enforcement of competition rules within the EU, it is necessary to provide brief explanation on enforcement of EU competition rules.
EU competition rules, which are mainly Art.101 and Art.102 TFEU, are enforced both by public and private enforcement tools7. When functions of these rules are taken into
consideration in a broad manner, both enforcement ways of anti-trust rules entail three main tasks: (i) clarifying the content of rules, (ii) preventing violations of prohibitions indicated in those rules, and (iii) dealing with the consequences when violations have nevertheless happened8. These tasks are, in fact, common for all kinds of enforcement in law. Without an
effective enforcement, the meaning of law cannot be developed and legal security cannot be achieved. However, in sphere of EU competition law, the main driving force of enforcement ultimately focuses on the objective of establishment of a well-functioning internal market based on a highly competitive market economy9. Therefore, to deter undertakings from violating
competition rules by anti-competitive practices can be described as a specific aim serving the general interest. Furthermore, due to the economic nature of competition law, private interests are inevitably affected as well as public interests. This characteristic of competition law naturally creates an important need for compensation remedies. Thus, within the meaning of EU competition law, public and private enforcement should be defined as complementary tools10.
2.1. Private Enforcement of EU Competition Rules
Private enforcement refers to decentralised application11 of competition rules by
individuals (or private parties) through private litigation before national courts or arbitration12.
The concept of ‘individuals’ should not be understood as public bodies not being able to bring private enforcement actions before domestic courts. These actions can equally be brought by public authorities which suffer from harm caused by an anti-competitive practice13.
7 Green Paper on Damages Actions for Breach of the EC Anti-trust Rules, COM (2005) 672
Final, p.3
8 Wils, Wouter P.J., Efficiency and Justice in European Anti-Trust Enforcement, 2008, Hart
Publishing, p. 50
9 Art.3(3) TEU and Art.101(1) TFEU
10 Ioannıdou, M., Consumer Involvement in Private EU Competition Law Enforcement, 2015,
Oxford University Press, p. 51-52
11 Dunne, N., The Role of Private Enforcement Within EU Competition Law, Cambridge,
p.145, available at https:/www.cambridge.org/core/terms. https://doi.org/10.1017/S1528887000002585
12 Whish, R. and Bailey D., Competition Law, 2015, Oxford University Press, Eighth Ed., p.
312.
Three types of private enforcement can be distinguished in general: (i) use of Art.101 and 102 TFEU as a defence against a contractual claim for performance or damages because of non-performance, (ii) claims for interim relief, and (iii) claims for damages14. When the core
of the conflict which is discussed in this paper is taken into account, private enforcement will be explained focusing only on actions for damages.
2.1.1. Actions for Damages in EU Competition Law
Before Reg.1/2003 and Damages Directive came into force, individuals’ right to claim for damages based on infringement of EU competition rules was being discussed by the Court and EU institutions.
In case-law of the Court, at the beginning, those discussions were held within the question of whether Art. 10115 and 102 TFEU have direct effect. In BRT v. SABAM case, the
Court stated that those provisions are directly effective and applicable due to their nature, therefore, it is for the national courts to decide whether and to what extent anti-competitive practices affect the interests of individuals16. Following this, in Francovich case, the Court
broadened its interpretation on competition rules to the liability of Member States for ensuring effective and non-discriminatory application of EU law. The Court consistently held in its decisions that it is for national courts of Member States, whose task is to apply EU law in areas within their jurisdiction, to ensure that competition rules take full effect and must protect the rights conferred by the Treaty on individuals17. The Court also adds to its interpretation that if
individuals were unable to obtain redress when their rights are infringed by a breach of Union law, the effectiveness of EU rules would be impaired and the protection of the rights which they grant would be weakened, and the Member States would be liable for that result18.
Until Courage Ltd. v. Crehan case, the Court tried to concretise the theoretical frame for private enforcement of competition rules by recalling their direct effect and accepting the rights that they confer on individuals. In fact, aforementioned cases indirectly reinforced the
14 Wils, Wouter P.J., Private Enforcement of EU Antitrust Law and Its Relationship with Public
Enforcement: Past, Present and Future, 2017, World Competition 40, no. 1, p. 4
15 All of the former treaty provisions are used with its current article numbers. 16 Case C-127/73 BRT v. SABAM, par.13-14 and par.39
17 Joined Cases C-6/90 and 9/90 Andrea Francovich and Italian Republic v. Danila Bonifaci
and Others and Italian Republic, par.32
existence of rights to claim anti-trust damages of individuals. Moreover, in UK, long before
Crehan, damages were available for harm caused by infringements of Art.101 and 102 TFEU19.
Nevertheless, as it is mentioned above, a further and specific clarification on the right to claim damages caused by anti-competitive practices were needed since there were different ways of private enforcement. In Crehan case, the Court directly held that “any individual can rely on a breach of Art.101 TFEU before a national court even where he is a party to a contract that is liable to restrict or distort competition within the meaning of that provision.”20 To understand
the importance of this case, a brief factual information should be given. In this case, Crehan was not an end-customer of a cartel who seeks damages for harm caused by an anti-competitive horizontal agreement. Crehan was himself party to a vertical agreement which restricted competition by effect in relation with horizontal agreement in question. Therefore, it was expectedly controversial that whether Crehan should have the right to claim damages for harms caused by an anti-competitive agreement for which he was himself partly responsible21. The
Court supports its affirmative interpretation on this issue by referring to function of private enforcement for effective application of Union law. According to the Court,
“the existence of such a right (to claim anti-trust damages) strengthens the working of the Union
competition rules and discourages agreements or practices, which are frequently covert, which are liable to restrict or distort competition22.”
This decision is a milestone for private enforcement of EU competition law since, in addition to its compensatory function, it provides an objective of deterrence against anti-competitive behaviours for private enforcement. From that point of view, private enforcement of EU competition rules also serves for public interests besides interests of private parties. The question of which interest should be prior to the other in a situation of conflict of interests will be discussed later in this paper.
The other significant decision of the Court is Manfredi case in which the Court adds a condition for assertion of anti-trust damages. The Court held that “any individual can claim compensation for the harm suffered where there is a causal relationship between that harm and
19 Whish R. and Bailey D., Ibid, p. 328
20 Case C-453/99 Courage Ltd. v. Bernard Crehan, par.24 21 Whish R. and Bailey D., Ibid, p.315
an agreement or practice prohibited under (Art.101 TFEU)”23. This condition actually exists in
the nature of tort law, however, the reason for that the Court felt it necessary to recall that condition regarding specifically anti-trust damages actions was remaining procedural autonomy of Member States. In the time of Manfredi, there was not uniformity on procedural rules regarding actions for damages in EU competition law. This was creating the danger of undermining the effective use of right to claim damages. However, in Manfredi case, the Court accepted the autonomy of Member States on designation of procedural rules governing actions for safeguarding rights of individuals derived directly from EU law in so far as these rules may offend EU’s principle of equivalence and principle of effectiveness24. In other words, the Court
decided that national procedural rules governing actions for anti-trust damages cannot be less favourable than the rules governing similar domestic actions and they cannot render the exercise of rights conferred by EU competition law practically impossible or excessively difficult25.
It is settled case-law of the Court that, in any case, national legislation must ensure the full effectiveness of EU competition law despite Member States’ procedural autonomy. Therefore, in accordance with the outcome of Crehan case, in Kone case, the Court expressly refers to the objective behind Art.101 TFEU. It states that national procedural rules governing actions for anti-trust damages must specifically take into account the objective pursued by Art.101 TFEU, which is to establish a well-functioning internal market which must be driven by effective and undistorted competition26. From this point of view, even if Member States’
domestic legal systems enjoy an autonomy to define and apply the concept of ‘causal link’, which is set forth as a condition for actions for damages in Manfredi, they cannot use a narrow interpretation as well as they do in other private law litigations due to the objective of establishing an undistorted competition in internal market.
From all these case-law of the Court, it is obvious that, within the meaning of actions for anti-trust damages, private enforcement of EU competition law has always had a public interest because of the ultimate Union objective of establishment of well-functioning competitive internal market. This characteristic should make both national courts and EU institutions solve legal problems in accordance with that objective. This means that the general
23 Joined Cases C-295/04 and C-298/04 Vincenzo Manfredi v. Lloyd Adriatico Assicurazioni
SpA, par. 61
24 Ibid, par.62 25 Ibid.
principles and national procedural rules of private law enforcement should be interpreted with a different understanding which is compatible with this public characteristic of EU competition law.
2.1.1.1. Legislative Ground for Action for Anti-Trust Damages The main legislation on actions for damages in EU competition law is the European Parliament and the Council’s Directive 2014/104/EU on actions for damages. Before analysing the Damages Directive in detail, it would be more appropriate to start with the Council Regulation No.1/2003.
To constitute a legal reasoning for private enforcement of EU competition rules which was tried to be clarified by the case-law of the Court, Reg.1/2003 emphasises the role of national courts in applying Union competition rules in its Recital (7). Under Art.6, it explicitly accepts the essential role of national courts on protecting the subjective rights under EU law, and at the same time, Recital (7) implies the complementary characteristic of private enforcement in EU competition law. Therefore, according to Reg.1/2003, it is clear that private enforcement of EU competition law is not only about providing compensation remedies for individuals suffering harm caused by competition law infringements, but it also plays an important role in effective application of competition rules, simultaneously in achieving public enforcement objectives. This understanding is totally compatible with the settled case-law of the Court which is mentioned earlier in this paper.
In relevance with the subject, Recital (21) of Reg.1/2003 remarks the importance of consistency in the application of the competition rules between Member States. For providing uniformity in the application of competition rules in civil proceedings, it offers a cooperation mechanism between national courts and the Commission, and it also legalises it under Art.15 and Art.16 of Reg.1/2003. These provisions should be read in conjunction with the Commission’s Co-operation Notice27. Art.16 of Reg.1/2003 is also significant for avoiding risk
of legal uncertainty by creating conflicts between the decisions of the Commission and national courts. According to this provision, national courts are obliged not to take decisions running
27 2004/C 101/04 Commission Notice on the co-operation between the Commission and the
courts of the EU Member States in the application of Art.81 and 82 EC (Art.101 and 102), 2004/C 101/04
counter to the decision adopted by the Commission. If a national court considers that a Commission’s final decision, meaning decisions not subject to an appeal before EU courts, is unlawful, the only thing it can do is to refer the questions to the Court in preliminary rulings procedure under Art.267 TFEU28.
Since Art.16(1) of Reg.1/2003 provides for the Commission’s decisions on infringement of EU competition rules binding effect for national courts of Member States, it naturally enables individuals claiming harm caused by that infringement to bring ‘follow-on actions’ before national courts. By the nature of ‘follow-on actions’, claimants do not have to prove the existence of competition law infringement, but they still need to establish causal link between harm suffered and infringement29.
In spite of the fact that settled case-law of the Court and abovementioned provisions of Reg.1/2003 in conjunction with Commission’s Co-operation Notice have provided a legal basis for actions for damages in EU competition law, there was a lack of uniformity creating intense difficulty for national courts in the application of Art.101 and 102 TFEU30. More specifically,
the principle of procedural autonomy of Member States causing significant differences between national legal systems was both preventing a desired level playing field for undertakings operating in the internal market and was making it difficult for consumers to effectively exercise their rights derived from EU law31. To satisfy the need for legal certainty, the Damages
Directive was adopted on 26 November 2014. Even though it clarified some blurred points regarding actions for anti-trust damages such as effect of national decisions, limitation periods and, partly, disclosure of evidence, it is still widely criticised since it remains silent for important issues including the notion of causal link, use of expert evidence, availability of collective actions, evidential value of the Commission’s commitment decisions etc32. It might
also be claimed that it was a deliberate choice to leave those unclarified issues to national procedural rules. The reason is that under Recital (11) of the Damages Directive, it is stated that “all national rules governing the exercise of the right to compensation for harm resulting from an infringement of Art.101 and Art.102 TFEU…must observe the principles of effectiveness
28 Commission Co-Operation Notice, Ibid, par.13 29 Whish R. and Bailey D., Ibid, p. 323
30 Bovis H.C. and Clarke M.C., Private Enforcement of EU Competition Law, Liverpool Law
Review (2015), vol:36, p. 53
31 Recital (9), Damages Directive 32 Dunne N., Ibid, p.165
and equivalence.” In this context, the Damages Directive seems like an aggregate version of legal know-how of the EU law on actions for anti-trust damages.
2.1.2. The Obstacles to the Ability of Individuals to Claim Damages for Infringement of EU Competition Rules
Although the Damages Directive theoretically provides a solid legal ground for actions for anti-trust damages, there are a number of practical obstacles to the ability of individuals to bring a damage claim before national courts. The victims of anti-trust violations often take the difficulties of proving their claim into account, combined with the uncertainty regarding the outcome and risk to undertake burden of litigation costs, including lawyers’ fees in a possibility of rejection of claim33. Furthermore, the cost of accessing information and perhaps fees for
expert witnesses in order to prove causal link between harm suffered and competition law infringement in follow-on actions, or to prove the infringement in stand-alone actions, are often identified as the main reasons of why individuals, especially end-consumers whose losses are relatively low, refrain from bringing their damages claim before national courts34.
There are also some other obstacles derived from legal uncertainty at EU level such as fault requirement, measures for quantification of harm, collective redress etc. However, in the context of this paper, since the most relevant problem regarding anti-trust damages action is related to difficulties on proving infringement by collecting evidence, EU legislation and case-law of the Court regarding disclosure of evidence will be examined in detail.
2.1.2.1. Difficulties on Access to Evidence in Actions for Anti-Trust Damages and Disclosure of Evidence
The right to claim damages is recognised for any natural or legal person, including consumers, undertakings, public authorities etc., irrespective of the existence of a contractual relationship between individuals seeking compensation and the defendant, and regardless of
33 COM (2008) 165 Final, Staff Working Document accompanying the White Paper on
Damages Actions for Breach of the EC Antitrust Rules
34 Cseres, K. J., Harmonising Private Enforcement of Competition Law in Central and Eastern
Europe: The Effectiveness of Legal Transplants Through Consumer Collective Actions, 2015, Yearbook of Antitrust and Regulatory Studies, 8(12), 33-59. DOI:
whether there has been a prior of an infringement by either the Commission or a national competition authority35.
If a claimant brings a private action before a national court without a prior decision by a competition authority, this action is called ‘stand-alone’ action36. In stand-alone actions,
claimant has to firstly prove the existence of competition law infringement. In other words, claimant has to bring an action to establish the breach. Following this, claimant, by nature, needs to prove causal link between a quantifiable harm suffered and anti-trust violation committed by a particular defendant37. Since, mostly, to prove an infringement of competition
law requires a complex factual and economic analysis, anti-trust damages actions are often brought before national courts once a competition authority has found an infringement of EU competition rules, which is called ‘follow-on’ actions38. Due to Art. 16(1) of Reg.1/2003
providing that a Commission decision which there has been an infringement is binding for national courts, claimants can rely on Commission’s infringement decisions in follow-on actions for anti-trust damages. However, claimants in those actions still have to prove causal link and the existence of quantifiable harm. It is obvious that stand-alone actions mostly face problems as regards proof of the infringement, especially when they are brought by third parties. Nevertheless, they are used frequently in some Member States39.
As it is indicated under Recital (14) of the Damages Directive, the necessary evidence to prove a claim for damages is often held exclusively by the opposing party or by third parties, and accordingly, access to evidence might be extremely difficult for claimants. In such circumstances, strict procedural rules on bringing evidence only by claimants can impede effective use of right to claim compensation guaranteed by TFEU40. Therefore, as it is stated in
Recital (15) of the Damages Directive, it is appropriate to ensure that claimants are afforded the right to obtain the disclosure of evidence relevant to their claim. To guarantee full effective application of Art.101 and 102 by the hand of actions for damages, the Damages Directive
35 Recital (13) of the Damages Directive
36 COM (2013) 404 final and SWD (2013) 203 final, Commission Staff Working Document –
Executive Summary of the Impact Assessment on Damages Actions for Breach of the EU Antitrust Rules, par. 10
37 Whish R. and Bailey D., Ibid, p.323-324
38 Staff Working Document – Executive Summary of Impact Assessment, Ibid, par.10 39 Private Enforcement and Collective Redress in European Competition Law – Congress
Proceedings Vol.2, eds.: Bandi Gy, Darak P, Lancos P., Toth T. 2016, Wolters Kluwer, p. 93
(Art.5 (1)) makes the Member States obliged to ensure national courts, upon the request of claimant who has presented a reasoned justification regarding the evidence requested, to order the defendant or third party disclose relevant evidence. At the first sight, it seems clear that national courts should provide necessary opportunities for disclosure of evidence to individuals claiming damages in civil proceedings, however, there are some limitations on it.
2.1.2.1.1. Access to the Commission’s Files
The rules on access to Commission’s files or the documents held by it are provided in Reg. No. 1049/200141 in a general meaning, not specific to competition law. Since transparency
in EU enables administration to enjoy greater legitimacy and it contributes to respect for fundamental rights as laid down in Art.6 TEU and in the Charter of Fundamental Rights of the EU, all documents of the institution should be accessible to the public42. This access not only
regards to documents drawn up by the institutions, but also documents received by them43.
However, by nature of transparency, certain public and private interests need to be protected by way of exceptions. These exceptions defined numerus clausus in the Regulation and should be interpreted narrowly. In situations where conflict of interests emerges, a balance between those interests of preserving an effective system of public enforcement and facilitating the functioning of an accessible system of private enforcement should be provided44. This kind of
conflict is generally experienced when claimants request to access to leniency documents.
Art. 4(2) of Reg.1049/2001 provides that the Commission shall refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person unless there is an overriding public interest in disclosure. Regarding the leniency documents, the Commission generally tends to prevent access to these documents in order to safeguard the credibility of leniency programmes and protect its objective45. However, since
this kind of attitude may impede the effective use of right to claim compensation, the Court examines whether the Commission has a plausible justification for its refusal. In CDC
Hydrogene Peroxide case, the General Court indicates that “if the Commission decides to refuse
41 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May
2001 regarding public access to European Parliament, Council and Commission documents
42 Recital (2) and (11) of Reg.1049/2001 43 Recital (10), Ibid.
44 Ashton D. and Henry D., Competition Damages Actions in the EU – Law and Practice, 2013,
Elgar Competition Law and Practice, p.71
access to a document which it has been asked to disclose, it must explain how disclosure of requested document could specifically and effectively undermine the interest protected by the exception provided for in Art.4 of Reg. 1049/200146”. On the other hand, the Court also
considers whether there is an actual need for the document subject to request of disclosure to prove claimant’s allegation. In this manner, any person seeking compensation for the loss caused by an infringement of competition rules must establish the necessity for him to have access to Commission’s documents in order to prove his claim. In the absence of such necessity, the claimant’s request for access to files in order to bring an action for damages does not provide an overriding public interest within the meaning of Art.4 of Reg.1049/200147. Even if these
case-law of the Court is constituted regarding access to leniency documents of the Commission, the indications of the Court draw a general frame for interpretation rules and legal standards on how to apply exceptions to the right for access to files. Therefore, the outcome of the Court on this issue will be used in other chapters while analysing the right of claimants to access to commitment decisions of the Commission.
2.1.2.1.2. Access to Documents Held by National Competition Authorities
Mainly, the abovementioned principles presented by the Court are also relevant for access to documents held by national competition authorities. However, in Pfleiderer case, the Court was on the view that “it is for the national courts of the Member States, on the basis of national law, to determine the conditions under which such access must be permitted or refused by weighing the interests protected by EU law48”. On the other hand, in Donau Chemie case, it
limits the discretion of national courts on deciding about disclosure of documents held by national competition authorities by providing that if there is no other way of obtaining that evidence, national courts cannot refuse to grant access to documents since it would render ineffective the right to claim damages which directly derive from EU law49.
2.2. Public Enforcement of EU Competition Rules
46 Case T-437/08, CDC Hydrogene Peroxide v. European Commission, par.35
47 Case C-365/12 P European Commission v. EnBW Energie Baden-Württemberg AG, par.108 48 Case C-360/09 Pfleiderer AG v. Bundeskartellamt, par.32
One of the driving forces behind enforcement of EU competition rules is to provide most favourable economic environment in which establishment of a well-functioning internal market is granted. Accordingly, it is necessary to deduce that infringement of Art.101 and 102 TFEU may severely harm market structure within the EU. Therefore, enforcement of competition law, by its nature, has obviously had public interest
Moreover, since “establishment of competition rules necessary for the functioning of the internal market” falls within exclusive competence area of the EU under Art. 3(1-b) TFEU, involvement of EU institutions in enforcement of EU competition rules is inevitable even if the enforcement powers of competition rules are shared by the EU and Member States50.
In this context, the powers of the Commission to enforce Art.101 and 102 TFEU are defined and detailed under Reg.1/2003 which became applicable on 1 May 2004. According to the provisions of Reg.1/2003, the Commission, by its decision, may find an infringement (Art.7), order interim measures where prima facie evidence regarding infringement is found (Art.8) and make commitments offered by undertakings subject to the Commission’s preliminary assessment on a potential infringement binding (Art.9), or it may find Art.101 and 102 TFEU inapplicable for the case in question (Art.10)51. In addition, the Commission may
impose fines and periodic penalty payments in compliance with Art.23 and 24 of Reg.1/2003. As it can be seen on the wording of those provisions, the Commission has a broad discretion on assessing anti-competitive behaviours of undertakings and make decisions regarding infringements.
To analyse the use of commitment decision as evidence in actions for damages, it is necessary to explain the legal status and effect of commitment decision as a tool of public enforcement and its evidential value in actions for damages with the possible effects to private enforcement. In this way, it is aimed to achieve which attitude through the conflict between public enforcement and private enforcement of EU competition rules should be adopted in the possibility of using commitment decisions as legal ground and evidence in antitrust damages actions.
50 Frese, M. J. (2012). Sanctions in EU competition law: principles and practice, Universiteit
van Amsterdam Digital Academic Repository, downloaded on 23 May 2017
51 By taking its irrelevancy into account, investigation powes are not counted in this part.
2.2.1. Commitment Decisions of the Commission under Art.9 of Regulation No. 1/2003
Commitment decision can be defined as a relatively new tool of public enforcement mechanism for EU competition rules, which provides an opportunity to settle with economically complex competition law cases in a quick and flexible way where also undertakings are willing to be a part of a mutually beneficial cooperation52. The power of the
Commission to adopt a commitment decision is based on Art.9 of Reg.1/2003: “Where a Commission intends to adopt a decision requiring that an infringement be brought to an end”, the undertakings in question may “offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment”. Following this, the Commission may, by adopting a decision called ‘commitment decision’, “make those commitments binding on the undertakings”. This decision “shall conclude that there are no longer grounds for (any further) action by the Commission.”
Art.9 of Reg. 1/2003 should be read in conjunction with Recital 13 and 22 of the same Regulation. The general principles leading to adoption of this enforcement mechanism are defined under Recital 13. It clearly states that commitment decisions do not involve any finding on whether there has been or still is an infringement. Therefore, as it will be analytically discussed in the following sections, the use of commitment decisions as evidence in private damages actions produce different results from infringement decisions.
2.2.1.1. Legal Status of Commitment Decision of the Commission and Its Effects
In spite of the fact that both the undertakings subject to competition law concerns and the Commission cooperate each other and make a bilateral effort to settle with the case, commitment decisions cannot be evaluated as a negotiation document or bilateral contract since, here, the Commission makes commitments offered by the undertakings binding by adopting a unilateral act53. The act enforcing competition rules is that act itself which is adopted
unilaterally by the Commission. As a natural result of this public act, non-compliance with the
52 Schweitzer, H., Commitment Decisions: An Overview of EU and National Case Law,
e-Competitions, No. 48150, (© e- Competitions – Institute of Competition Law, www.concurrences.com; Institute of Competition Law) , p.1
commitments made binding by that decision might be sanctioned through imposition of fines under Art.23(2-c) or periodic penalty payments under Art.24(1-c) of Reg.1/2003. Thus, it is clear that the public characteristic of commitment decision is predominant and it requires compliance and, accordingly, enforcement.
As it is mentioned before, according to Recital 13 of Reg. 1/2003, commitment decisions are adopted without concluding whether an infringement of competition law has existed; rather it ends the procedure, started by the Commission, depending on preliminary findings relating to suspected anti-competitive conducts of the undertakings which are parties to the decision. Therefore, mainly for the sake of procedural economy and prevention of increase in harm, the Commission, by its discretion, chooses to remain silent on the existence of infringement in return of sufficient commitments offered by undertakings to protect competition and market structure within internal market.
Notwithstanding, the discretion of the Commission to adopt commitment decision cannot be understood as an unlimited power. By taking the risks of excessive use of commitment decisions (i.e. lack of deterrence effect, inappropriateness to prevent strong horizontal coordination, discouraging effect on private actions etc.) into consideration, Recital 13 of Reg.1/2003 states that “commitment decisions are not appropriate in cases where the Commission intends to impose a fine.” This implies that Art.9 procedure should not be initiated in the case of hard-core restriction of competition54 or in the case where the Commission has
strong and irrefutable evidence regarding violation of antitrust rules.
The legal effect of commitment decisions should be analysed in two parts: (i) whether it is binding for parties and, (ii) whether it is binding for national courts or national competition authorities.
From the perspective of parties to commitment decision, it is obvious that commitments that they offered after preliminary assessment of the Commission have become legally binding from the moment of the adoption of commitment decisions by the Commission. Therefore, the committing undertakings have to comply with them. Otherwise, the Commission “may impose fines” or “periodic penalty payments” on them if they fail to comply with a commitment made
binding by a Commission decision pursuant to Art.9 of Reg.1/200355. This also means that
when an undertaking which is the addressee of a commitment decision violates its commitments, the Commission can take an action against it without concluding the existence of the past or current infringement. In other words, violation of commitments made binding by a decision of the Commission constitutes itself a legal offence56.
The other legal effect of commitment decisions on their addressees (undertakings) on their availability for appeal. Even if there is no clear provision in EU legislation preventing undertakings from appealing the Commission’s commitment decisions, it would be an extremely unreasonable argument to support that commitment decisions can be appealed. There are two main reasons behind this outcome. First of all, commitment procedure can only be driven by voluntary participation of parties and only proceed if both sides consent to conclude57.
Even though the one who initially declares his will for adoption of a commitment decision should be the undertaking in question, it could always change its strategy and force the Commission to prove its allegations by infringement decision procedure, and when the Commission adopts an infringement decision, then, this can always be made subject to appeal before ECJ.
Secondly, to open commitment decisions to appeal would also be inappropriate for the purpose to handle with competition law cases quickly, flexibly and cheaply. Accordingly, this consequence would diminish the Commission’s incentive to enter into commitment discussions58. Therefore, it should be concluded that parties to commitment decision are not
entitled to appeal against this decision59.
The blurry point subject to discussions about commitment decision is its legal effect on national courts and national competition authorities. Recital 13 of Reg. 1/2003 clearly states that “commitment decisions are without prejudice to the powers of competition authorities and courts of the Member States to make a finding (on whether there has been an infringement or
55 Art.23(2-c) and 24(1-c) of Reg.1/2003
56 Cook, C.J., Commitment Decisions: the Law and Practice under Article 9, 2006, World
Competition, vol.29(2), p.221
57 Ibid, p.222 58 Ibid, p.223
59 Ibid.; Although this result seems very clear, there is no former judgement clarifying this
not) and decide upon the case.” In the same way, in Recital 22 of Reg. 1/2003, after emphasising the importance of avoiding the conflicting decisions in order to provide legal certainty and establish a uniform application of EU competition rules, it is indicated that “commitment decisions adopted by the Commission do not affect the power of the courts and competition authorities of the Member States to apply Art.101 and 102 TFEU.” On the other hand, under Art.16 of Reg.1/2003, national courts are precluded from taking decisions “running counter to the decision adopted by the Commission” while applying Art.101 and 102 TFEU.
Some academicians argue that adoption of commitment decisions which create an obligation for the undertaking to act in compliance with those commitments leads to a presumption that the Commission, by its decision, also determines that such conducts fulfilling commitments are consistent with EU competition rules60 . Therefore, they also claim that
national authorities cannot contradict with the Commission’s decisions by declaring conducts of the undertaking which are already envisaged and permitted by commitment decision as violation of competition rules61.
This view seems problematic since it misunderstands the legal status of commitment decision. As it can be easily seen under Recital 13 of Reg.1/2003, “commitment decisions should find that there are no longer grounds for action by the Commission without concluding whether or not there has been or still is an infringement.” As it is mentioned before, commitment decisions do not involve any findings regarding past or actual existence of an infringement. This would also be relevant for future conducts which are consistent with its commitments subject to the Commission’s decision since, by its very nature, there is an absence of a deep and comprehensive assessment on whether the conduct of the undertaking has been anti-competitive or not. Therefore, the only technical function of commitment decisions is to sufficiently meet with the Commission’s concerns regarding anti-competitive characteristic of an undertaking’s market activities. This cannot mean that consistent attitudes with the commitments would remove the potential existence of alleged infringements; rather, it provides that there is no ground for further actions by the Commission. Hence, the power of national authorities to apply Art.101 and 102 and decide upon whether the undertaking acting consistent with the Commission’s commitment decision has been violating competition rules would never distort the uniform application of EU competition rules within the meaning of Art.16 of
60 See Cook, C.J., Ibid. 61 Ibid, p.226
Reg.1/200362. More aggressively, John Davies and Manish Das argue that if there is no
decision, there is no real application of Art.101 and 102 TFEU, thus, a finding regarding an infringement cannot run counter to a commitment decision of the Commission63.
In addition to that, one should bear in mind that the legislators undoubtedly needed to emphasise under both Recital 13 and 22 of Reg.1/2003 that commitment decisions do not affect the power of national authorities of the Member States to apply Art.101 and 102 TFEU and decide according to findings. The reasoning behind this choice is that legislators intended to separate the legal status of commitment decisions and infringement decisions. Therefore, when Art.16 of Reg.1/2003 is read in conjunction with abovementioned recitals, purposive interpretation should also be in favour of the power of national authorities to apply EU competition rules regardless of whether the undertaking in question is acting compatible with commitment decision of the Commission.
This debate is crucial since it also affects the possibility of antitrust damages actions, where there is a commitment decision, brought before national courts to conclude with the success of damages claims. If the contrary view64 is embraced, it would make damages actions
in EU competition law dramatically ineffective. Therefore, the contradiction which will be assessed in following chapters between private enforcement tools and public enforcement mechanisms would be inextricably deeper.
2.2.1.2. Commitment Decisions as Evidence/Legal Ground in Antitrust Damages Actions within the EU Competition Law
Since the main discussion in this paper is mainly on the use of commitment decisions in civil proceedings, the intersection point of public and private enforcement of EU competition rules should be covered.
As it is stated by the Commission, commitment decision is a formal settlement desired both by undertakings under investigation and the Commission where its enforcement priorities
62 For supporting view, see. Wouter W., Settlements of EU Antitrust Investigations:
Commitment Decisions under Article 9 of Regulation No. 1/2003, 2006, World Competition 29(3), p.361
63 Davies, J. and Das, M., Private Enforcement of Commission Commitment Decisions: A
Steep Climb not a Gentle Stroll, 2005, Fordham International Law Journal 29(5), p.931
justify this choice65 and where it does not intend to impose a fine according to its preliminary
assessment on suspected anti-competitive conduct of the undertaking66. However, as it is
explained before, commitment decision does not conclude whether there has been an infringement of EU competition rules or not. It follows that commitment decisions do not provide immunities for undertakings from being challenged in private proceedings for their former behaviours67. This outcome should similarly be relevant for future behaviours of
undertakings which act even consistent with commitments made binding by the Commission decision because the absence of a finding regarding competition law infringement in commitment decisions makes that decision mean that the Commission only accepts the fact that the case is no longer one of its enforcement priorities68. Thus, individuals’ (defined as any
natural or legal person under the Art. 3 of Damages Directive) right to claim damages in private actions regarding the undertaking’s former or current anti-competitive conduct is still reserved69. In other words, the adoption of commitment decision by the Commission does not
preclude individuals from bringing private actions before national courts to claim compensation for the harm caused by the undertaking party to that commitment decision.
Different from infringement decisions of the Commission, commitment decisions do not give a path to ‘follow-on actions’ before national courts since there is no such finding on competition law infringement involved in commitment decisions. Therefore, damages claims must be brought as ‘stand-alone actions’ which is significantly disadvantageous for individuals due to the lack of investigatory powers and difficulties that individuals inevitably face while collecting evidence.
In ‘stand-alone actions’, claimants have to prove, firstly, the existence of an infringement. By the nature of competition law violation, proving an infringement mostly requires a factual analysis including complex economic assessment. Following this, as similar with ‘follow-on actions’, the existence of quantifiable harm and causal link between harm and infringement must be proven. In practice, ‘stand-alone actions’ are not seen as a favourable way
65 MEMO/04/217, 17 September 2004, Commitment Decisions (Article 9 of Council
Regulation 1/2003 providing for a modernised framework for antitrust scrutiny of company behaviour)
66 Recital 13 of Reulation No. 1/2003 67 Whish, R. and Bailey, D., Ibid, p.273 68 Ibid, p.274
for individuals who cannot enjoy any investigatory powers like the Commission does whereas even ‘follow-on actions’ are not attractive for specific group of individuals such as end consumers.
However, there is an undeniable fact that damages actions brought after the adoption of a commitment decision cannot be evaluated as a pure ‘stand-alone’ action. It should be kept in mind that, according to Art.9 of Reg.1/2003, the prerequisite for adopting a commitment decision is the initial intention of the Commission “to adopt a decision requiring that an infringement be brought to an end.” From this provision, it should be understood that before the offer of the undertaking under investigation to discuss commitments, the Commission had serious doubts regarding the compatibility of the undertaking’s behaviours with EU competition rules70. In this case, it should be concluded that initial doubts of the Commission
regarding potential competition infringement should not be ignored by national courts in civil proceedings on antitrust damages claims71. In other words, at least, factual background of
commitment decisions should be taken into account by national courts.
2.2.1.2.1. Evidential Value of Commitment Decision in Actions for Damages
Due to the unique nature of commitment decisions in the context of competition law enforcement, its evidential value in actions for damages brought by individuals is ambiguous. Unfortunately, there is no clear indication in any EU legislation related to this subject. Nevertheless, it is still possible to come up with a solution.
As it is explained in detail before, due to the absence of finding on an infringement in commitment decision, it cannot be directly used as a legal ground for ‘follow-on actions’ yet it may still have a value as evidence in actions for damages.
It is obvious that commitment decisions cannot be seen as conclusive evidence of the existence of infringement since it does not involve such finding. Furthermore, it is also impossible to see commitments made by the undertaking in question as admission of anti-competitive conduct of that undertaking. Otherwise, it would be substantially meaningless for
70 Wouter, W.J., Ibid, p.361 71 Ibid.
undertakings to offer commitments since it would bear almost all legal consequences of infringement decisions. Additionally, one of the main motivations for undertakings to apply for commitment decision is to relieve itself from the possibility of ‘follow-on actions’, however, when their commitments are evaluated as admission of infringement, practically, all damages actions would be similar to stand-alone actions.
Accordingly, the argument qualifying commitment decisions as quasi-admission of infringement is not acceptable in that sense72. The reason is that even if some of the facts subject
to commitment decision cannot be refuted by undertakings in civil proceedings, it would not mean that they admitted their infringing act before commitment decision was adopted by the Commission since they have not been analytically assessed by the Commission. Instead, investigation is closed when the Commission evaluates commitments as sufficient to meet with its competition law concerns.
From this perspective, the effectiveness of private enforcement of EU competition rules would inevitably be diminished where individual claimants attempt to bring their case depending on commitment decisions. To refrain from this consequence, it can be argued that commitment decisions of the Commission must have a certain probative value, or more specifically, the use of commitment decisions as rebuttable presumption of an existence of the competition infringement before national courts73. However, this proposition would carry the
risk to undermine the purpose of commitment decision as a public enforcement tool. The reason is that to attribute a rebuttable presumption value to a commitment decisions would discourage the undertaking under investigation to offer commitments since they will eventually have to carry the burden of proof to show the non-existence of the alleged infringement. Moreover, this result has the potential for the undertaking under investigation to be excessively challenged by its competitors in actions for damages74, and this would be used as a tool for intimidation and
damage. Consequently, the possibility to achieve the objective targeted by the adoption of commitment decision as a new mechanism for public enforcement of EU competition rules by
72 Duron, A., Private Damages Actions in the Wake of a Commitment Decision: New Risks
after the Judgement of the Paris Commercial Court in Eco-Emballages?, 2016, Journal of European Competition Law and Practice 7(2), p.128
73 Rat, D., Commitment Decisions and Private Enforcement of EU Competition Law: Friend or
Foe?, World Competition Law and Economics Review, (© Kluwer Law International; Kluwer Law International 2015, Vol.38/4), p.539
