Consumer protection and antitrust damages actions under Directive 2014/104: an evaluation

(1)

1

Consumer protection and antitrust damages actions under Directive

2014/104: an evaluation

Iris Malliou

(2)

2

4. What are the main obstacles that consumers face when they claim damages for breaches of competition law ? ... 17 4.1. Substantive obstacles ... 18 4.1.1. Access to evidence ... 18 4.1.2. Causation link ... 18 4.1.3. Quantification of damages ... 19 4.1.4. Requirement of fault ... 21 4.2. Procedural obstacles ... 21 4.2.1. Legal standing ... 21

4.2.2. The burden and the standard of proof ... 22

4.3. Practical obstacles ... 23

4.4. Other reasons that create obstacles ... 24

5. How does the Directive address these obstacles? ... 25

5.1. Legal standing direct-indirect purchasers ... 25

5.2. Access to evidence ... 25

5.3. Proof and quantification of harm ... 26

5.4. Other obstacles ... 28

6. Evaluation of the Directive provision from a consumer perspective ... 29

6.1. Improvements ... 30

6.2. Open issues and controversies ... 31

6.3. Overall assessment from a consumer protection perspective ... 34

(3)

3

Bibliography ... 38

The preparatory Studies of the Commission ... 39

Legislation ... 40

Case law ... 40

Abstract

The right to damages for the violation of the antitrust law was first introduced by the case law of the Court of Justice of the European Union. This case law has dealt with issues such as the quantification of damages, the persons that are entitled to sue under EU and domestic completion law and the release of information from the one party to the other. A couple of years later, the European Union Legislator took the opportunity to introduce Directive 2014/104 EU 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. The main goal of this Directive is to facilitate access to the right to damages for all victims of an infringement of articles 101 and 102 TFEU, regardless of their individual or their collective nature, to promote the effectiveness of EU antitrust rules, and to secure the exercise of the right to damages for any natural or legal person. This paper examines the main features of this Directive and the given solutions from a consumer perspective. As consumers can claim damages according to the existing case law, it is under question whether or not this Directive offers effective protection to consumers as victims of an infringement of the competition law rules. The outline of the paper is the following: firstly, it will describe the main features of the right to damages under this Directive; thereafter, we will determine the main obstacles that consumers as claimants of damages actions face; after determining the main issues that are raised, we will describe the provisions and the guidelines of the Directive to the Member States, and finally we will evaluate the new provisions under a consumer perspective. The main question to be answered is how effective the Directives’ provisions are in offering consumers a high level of protection in the relevant domain (see art 38 TFEU). As a criteria to the effectiveness, the comparison of the existing problems will be studied, as well as their solution under the Directive. The obstacles that will be examined are substantive, procedural, practical and other obstacles. Specifically, the issues that will be analyzed are the legal standing, the disclosure of evidence, the adoption of the joint and several liability of the infringers, the acceptance of the indirect purchasers as claimants and the quantification of damage. These are the legal institutes that usually create obstacles to consumers when they are willing to file an action for damages. The main evaluation criteria will include the situation of the consumer as a claimant before and after the implementation of the Directive.

(4)

4

1. Introduction

The first traces of elements of private enforcement in competition law go back to early 1960s when a report said that in all Member States private parties could start proceedings before national courts such as action for damages. Later the European Commission pointed out that these kinds of actions might be a useful support for the public enforcement of the competition law. However, the concept of a specific action for damages action took place in a European level firstly with the Courage case and secondly with the Regulation 1/2003 .1

Directive 2014/104 EU 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 (henceforward: Directive or Antitrust Damages Directive) is the result of these European initiatives and it was signed on 26 November 2014 and published in the official Journal of the EU on 5 December 2014. Member states need to transpose this Directive until 27 September 2016. This Directive was preceded by a Green paper in 20052 a White Paper in 20083 and a proposal for a Directive by the European Commission in 20134.

Nevertheless, this Directive is a minimum harmonization directive, which means that the Member States during the transposition may introduce more efficient or stricter measures as long as these measures do not conflict with the Directive’s requirements. For this reason the Directive is not a fully harmonized element in the EU Member States.5 This may carry the risk of forum-shopping by undertakings that try to avoid strict rules in specific Member States, as a result they choose other Member States that provide less strict rules.

To begin with, the main goals of this directive are to facilitate the access to damages for all the victims of the infringement of the articles 101 and 102 TFEU, regardless of their individual or their collective nature6, to promote the effectiveness of the antitrust EU rules, and to secure the right to damages for any natural or legal person. Prima facie, it seems that the Directive is trying to give a stable and valid legal basis for all those people or undertakings that are trying to get compensation from an infringement of antitrust rules.7 As we will see below there is a

1_{Editorial comments, One bird in the hand…” The Directive on damages actions for breach of the competition}

rules, Common Market Law Review 51: 1333–1342, 2014, p.1336

2_{Green Paper of the Commission (2005) Damages actions for breach of the EC antitrust rules :}

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52005DC067

3_{White Paper of the Commission (2008) Damages actions for breach of the EC antitrust rules:}

http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:52008DC0165&from=EN

4_{http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0404:FIN:EN:PDF}

5_{Strand M, Iacovides M, Bergström M, European P. Harmonising EU Competition Litigation : The New Directive}

And Beyond [e-book]. Oxford: Hart Publishing; p. 8

6_{http://ec.europa.eu/competition/antitrust/actionsdamages/directive_en.html}

(5)

5

difference in the way that any consumer could have access to justice before the introduction of this Directive and after its implementation from the Member States.

For the purpose of the analysis to be carried out in this paper, we had to concentrate on certain “main features” of the framework put in place by the Directive. The main features of this Directive considered are the following: easier access to the evidence of the violation of the EU competition law rules, as well as disclosure of the information that the European Commission or the national authority that has announced the violation. Further features are the fines to the relevant undertakings, a clear limitation period of 5 years for the claimants to bring their damages claims, and finally the clarification of the passing off phenomenon, because indirect purchasers will have a rebuttable presumption of their harm.

On the other hand, there are some principles that the case law has created, linked to the main features of the Directive, as these principles are either included in the Directive or are part of its main features. The basic principles considered are firstly the full compensation principle, which means that not only the actual loss (damnum emergens) will be paid but also the loss of profit (lucrum cessans) plus the interest (as already the Manfredi8 case of the European Court of Justice decided (henceforward CJEU), and secondly the joint and several liability of the participants of an act of infringement of the EU competition law rules, which means that any participant will be responsible towards the victims for the whole harm caused by the infringement.

1.1. Research question

As the Directive states in its initial article, its purpose is to ensure that anyone who has suffered harm caused by an infringement of competition law can effectively exercise the right to claim full compensation. Also, it sets out rules that protect the undistorted competition in the internal market and remove obstacles to the competitions’ proper function.9

The purpose, on the other hand, of this essay is to try to evaluate the protection of natural persons and specifically consumers under the light of this new Directive for the violations of the European or the domestic competition law.

In respect of the directive’s aims, the position of consumers seems to be particularly problematic. Due to the nature of consumer’s claim that prima facie faces difficulties in the issue of the quantification of the damage and the causation link between the conduct and the damage, the following research question should be answered:

8_{Joined cases C-295/04 to 298/2004 Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA et al, (2006) ECR}

I-6619

(6)

6

To what extent does the Directive provide effective protection to consumers as victims of an infringement of the competition law rules?

In order to answer this question an answer should be given as well to the following sub-questions as well, in order to make a correct evaluation of this European initiative:

a) What are the main obstacles that consumers face have to deal with in order to get compensation because of the infringement of antitrust rules?

b) Which of these obstacles does the Directive address? c) Are these issues solved effectively by the Directive?

All the above mentioned questions will lead to the answer whether or not this Directive has achieved its main purpose, through a description of the main features and facilities that it offers to consumers who fall victim to a distortion of competition.

1.2. Methodology and outline of the paper

The relevant method is the doctrinal that will lead to understanding the main features of this Directive and to evaluating the protection that offers to the weak group of consumers. The structure of this paper is the following: Chapter 2 will provide the relevant legal background, by addressing the relevant case law that led to the adoption of this Directive and describing the provisions of articles 101 and 102 TFEU; Chapter 3 will address the background of the adoption of the Directive, the choice of the Directive as a matter of legal necessity and the main features of the relevant right to damages under this Directive. Chapter 4 will address the main obstacles that consumers face when they claim or are willing to claim damages for the breach of the competition law rules. There main obstacles have been noted both in the EU preparatory documents of the Directive and the literature that deals with the Directive. Chapter 5 will summarize the given solutions to the above obstacles, Chapter 6 will evaluate the protection that consumers receive from this Directive, and finally Chapter 7 will give the final remarks as conclusions.

2. Main features of the EU competition law rules (art. 101 & 102

TFEU)

Article 101 TFEU prohibits all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market10, and article 102 TFEU prohibits any abuse of the dominant

(7)

7

positions of the undertaking in the internal market.11 These provisions of the Treaty create a direct horizontal effect of rights and obligations for the individuals and undertakings in Member States, which national courts must enforce.

As it is also stated in the preamble of the Antitrust Damages Directive, national courts must protect subjective rights by awarding damages to the damaged parties. This means that the effectiveness of these articles demands a practical effect that can be achieved by granting full compensation to the victims of the violations.12 Furthermore as the same Directive states, effective exercise of the right to compensation for the harm caused by the infringement of the competition law means that effective procedural provisions need to be implemented13.

Until now, due to the absence of EU legislation concerning actions for damages, these procedures are governed by national laws in substantive and procedural rights. However, it has to be borne in mind that these national rules must fulfill the criteria of effectiveness and equivalence, which means that that the domestic law may not make it impossible of extremely difficult to exercise the right to damages.14

The fact that this Directive follows the principles of the existing case law as is pointed above is confirmed by two factors. Firstly, the spirit of the adopted provisions reminds the principles of the existing case law and secondly the preamble of the Directive mentions the close relationship between the case law and the Directive. Recital 12 of the preamble states that the Directive reaffirms the principles of the case law of the CJEU and the acquis communautaire of the right to compensation of harm by infringement of competition law, and does not “pre-empt any further development there”.15_{In other words, the Directive confirms that any} infringement of articles 101 and 102 TFEU as well as any infringement of national completion law16 may result action for damages by individuals or undertakings for compensation before the national courts.

2.1. How did the case law of Court of Justice of the European Union

lead to the adoption of the Directive 2014/104?

11_{see art. 102 here:}_{http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012E/TXT&from=EN} 12_{See para 3 of the preamble}

13_{See para 4 of the preamble} 14_{See para 11 of the preamble} 15_{See para 12 of the preamble}

16_{As it is defines in art.1 of the Directive, national competition law means provisions of national law that}

predominantly pursue the same objective as articles 101 and 102 TFEU and that are applied to the same case and in parallel to Union competition law pursuant to Regulation 1/2003 EC, excluding provisions of national law which impose criminal penalties on natural persons, except to the extent that such criminal penalties are the means whereby the competition rules applying to undertakings are enforced

(8)

8

The main principles of this Directive were found to the case law of the Court of Justice of the European Union. Due to numerous cases that claimed damages before the CJEU, it seems that this Directive was the obvious path that the European Legislator had to follow in order to collect all the main principles together and to givefinally a valid legal basis for the actions to damages. As it was already noted above, one of the main principles of the Directive is that any individual may exercise the right to damages, regardless if he or she is a party to an agreement for the

breach of competition law or not.

The Directive borrowed this principle from the Courage and Crehan case17_{of the CJEU, which} established the right to damages from breach of the EU competition law and specifically the articles 101 and 102 of the TFEU18. In this case, the claimant Courage, a brewery, merged with pubs of Grand Met, forcing pub owners to buy beer exclusively from Courage at a non-negotiable price. Mr. Crehan leased a pub with this obligation, but did not pay for beer delivery, because he claimed that their agreement for the lease and purchase of beer at a specific price was contrary to art 81 (now 101 TFEU) and counterclaimed damages.

The Court in this case stated that any individual has the right to claim damages for loss caused to him/her in breach of article 101 TFEU. Articles 101 and 102 TFEU have direct horizontal effect and produce rights for the individuals concerned.19 The main importance of this case was the statement of the court that any individual- even if he/she has taken part to an agreement that breaches competition rules- may claim damages that resulted from this breach.

It has to be borne in mind that the Courage case wasn’t about a price cartel or about a consumer claim, but of a vertical distribution agreement between a supplier and a distributor. This case inflamed the recognition of the right to compensation to “any individual”. However, this notion of “any individual” that was used by CJEU, was formulated in such a broad sense, that it seemed to include consumers, provided though that there is a causal link between the conduct of infringement and the economic loss of the consumer.

A second principle that derives from the CJEU case law is the one of full compensation. This principle was founded in Manfredi.20 In this case, there was a tied selling of insurance products, an agreement between the insurance companies, to coordinate and fix prices of insurance premiums, that wasn’t justified by the market conditions and therefore was against the article 101 TFEU.

As a consequence, numerous consumers brought actions for damages against the insurance companies that had taken part to the agreement, in which the parties were exchanging

17_{C-453/99 - Courage and Crehan, ECLI:EU:C:2001:465}

18_{Niamh Dunne, Courage and compromise: the Directive on Antitrust Damages, E.L. Rev. 2015, 40(4), 581-597,}

p. 582

19_{Ashton David, David Henry, Competition damages actions in the EU : law and practice (2013), Elgar completion}

law and practice. p.5

(9)

9

information for the cost of the premiums for the mandatory insurance of the vehicles. The consumers before the Italian courts sought compensation for the damage they suffered due to the increase of the insurance cost. The CEJU in this case made clear that the notion “any individual” means that any natural of legal person can claim damages for the harm suffered, provided that there is a causal link between the harm and the conduct of the infringement of the article 101 TFEU.

Moreover, it ruled that the national court have to decide when this causal relationship exists, but the national courts the Court held, have to take into account the principles of effectiveness and equivalence. Even though this case involved direct purchasers, it seems obvious that the Court would ask for causal link for indirect purchasers (as the same principle was confirmed late on the Kone case).21 In other words, the Court stated that the right to damages is given to any individual as long as there is harm, competition law infringement and causal relationship between the harm and the conduct that led to the violation of the competition law.22 Also, in this case the Court stated another important principle. This principle interprets the meaning of full compensation, which means that the harmed person may seek damages not only for the actual loss but also for loss of profit plus interest.23

Three more cases led to the adoption of the Directive as it is. First is the Kone case 24. In this case, some undertakings in more than one Member State had entered in a large scale agreement purporting to divide up the elevator and escalator market. For this reason, the European Commission issued a fine of 992 million euros, because this agreement was in breach of article 101 TFEU.

After the fine by the Commission, ÖBB-Infrastruktur claimed that other companies, even though they didn’t take part to the initial agreement, they increased their prices. In order to estimate the augmentation of the price, a comparison has to be made between the price that the supplier would charge under normal competition rules, and the ones that were created after the creation of the cartel. This phenomenon is called the “umbrella effect”.25

The Court accepted the claim against cartel members, where the claimant was a consumer of a non-cartel member that due to the “umbrella effect” was imposing high prices because of the existence of the cartel. In other words, the significance of this case might be seen when it is realized that in this case the CJEU did not consider the fact that the consumer wasn’t either direct or indirect purchaser, as a reason to deny the compensation. Instead, the Court decided only based on the causation that led to higher prices.

21_{Drexl J. (2015) ibid. p. 6}

22_{Lianos, I., & Geradin, Damien, editor of compilation. (2013). Handbook of European competition law. Volume}

II, Enforcement and procedure. p. 240

23_{Ashton David, David Henry, ibid, p. 5} 24_{C‑557/12 , ECLI:EU:C:2014:1317} 25_{Drexl J. (2015) ibid. p. 6}

(10)

10

In other words, the fact was that the applicant had suffered losses, and the question that was put before the CJEU was whether or not these losses may be claimed from the companies that were involved in the cartel. This is a question of a causal connection between the damage that occurred by an act or an omission of the fined undertakings and the harm that the consumer suffered due to the raise of the price. And the answer by the Court was that as long as a causal link exists - even if it is remote - the consumers have to be compensated. Moreover, what the court stated in this case was that precludes the interpretation of the domestic law in a way that excludes the civil liability of the fined companies for a price raise of others undertakings prices. Another interesting case is the Pfleiderer case. In this case pursuant to Article 101 TFEU, the German competition Authority, Bundeskartellamt, imposed fines for 62 million euros on three European paper manufacturers. After this, Pfleiderer asked for full access to the file in order to seek damages from national courts. The claimant was an undertaking. This undertaking is one of the three top leading wood manufacturers. After the imposition of the fine to the three paper manufacturers, the above undertaking -as a plaintiff- claimed that at least the last three years had purchased paper valued 60 million euros from the abovementioned paper manufacturers that were fined due to the distortion of the competition. In other words, the claimant claimed damages due to the raised price of the paper.

In this case there was a leniency program in place. Leniency program means the operation under which a member of a secret cartel cooperates with an investigation of the competition authority, by voluntarily providing presentations regarding that participant’s knowledge of and role in the cartel, in return for its participation to the investigations get immunity or reduction of fines, for its participation in the cartel.26 These leniency programs exactly because they offer immunity to the cartel member that took part to the investigations make the collection of the evidence from the claimants more difficult.

The question that was posed was the combination of the existence of leniency programs and the right of the claimant or future claimant to get information and evidence of the cartel that violated the competition law. The preliminary ruling about the access to full information in conjunction with the leniency programs, was that any individual that had been adversely affected by an infringement of the EU competition law may not be precluded from obtaining access to documents, but it is up to the national court to determine the conditions, under which this disclosure may be permitted or dismissed. This balance from the domestic courts has to be done on a case by case basis according to national law, taking also into account the specific circumstances of each case.27 As we will see the this disclosure principle of this was transplanted in the Directive It is important to mention that disclosure means the disclosure of information to the claimant that is necessary for the claim of his damages

26_{Art.1 (15) of the Directive 2014/104 EC}

27_{Editorial comments, One bird in the hand…” The Directive on damages actions for breach of the competition}

(11)

11

Last, is the Donau Chemie case28, in which the Oberlandesgericht Wien29 sitting as a Cartel Court, imposed fines to Donau Chemie and other undertakings for violation-inter alia- of article 101 TFEU on the market for the wholesale distribution of printing chemicals. After this decision, the “VDMT”30_{, that is an association of undertakings that was established with a view} to represent the interests of its members that were undertakings in the printing sector, asked from the abovementioned court a full access to the file. In other words, this association asked full information of the infringement of the article 101 TFEU, that took place by the above undertakings, in order to decide afterwards whether or not to bring an action for damages of its members before the relevant courts.

In this case the CJEU confirmed the Pfleiderer rule of disclosure of the evidence and the necessary balance that the national courts need to do, because as it is stated in para 31, any rule no matter if it allows a full access to the documents in question or if it refuses this access as matter, is liable to undermine the effective application of article 101 TFEU and the rights that this article offers to individuals.

In other words, the court ruled that any national rule, no matter if it offers without discrimination to all claimants information about the infringement of the article 101 TFEU or restricts this possibility might be liable to undermine the effective protection that the article 101 TFEU offers. This is because the national courts have to make the balance as it was mentioned above in a case to case basis of whether to allow or not the disclosure of evidence to the parties that ask for it. This balancing by the national courts between the respective interests is necessary, because any absolute refusal or grand of the access would lead to a less effective article 101, which protects both the leniency programs and the right to information disclosure.

Overall, this Directive derives from the principles that the CJEU established more than 10 years ago, and continues the acquis communautaire of the right to damages as it is established by the case law. Does this mean though that this Directive has only a confirmative role to the EU case law?

3. Right to damage

3.1. Directive as legal necessity

There is a question that arises about the adoption of the Directive. Was the Directive really necessary? If we consider that most of the principles that this Directive adopts, follow the path of the abovementioned case law, then which were the new elements that this Directive offered to the right to damages?

28_{C-536/11 Donau Chemie and Others, ECLI:EU:C:2013:366} 29_{Higher Regional Court, Vienna}

(12)

12

To begin with, the case of Courage and Crehan31 for example confirmed the principle of the private enforcement of competition law through damage claims. Also, in Manfredi32 the same position was held. This could lead to considering the issue solved, but this is not the case because it has to be noted that what the case law of CJEU offered, is principles to guideline the Member States, which are not and shouldn’t be concrete. As the Court itself stated, these claims to damages are subject to national law under the principles of equivalence and effectiveness. As a consequence, different approaches were followed by the Member States. In Germany, for example, the term “any individual” that the case law ruled and the Directive uses as well, was interpreted as prohibiting the consumer claims but allowing claims of co-contractors and competitors. On the other hand, in Italy the Italian Supreme Court has allowed consumers to claim damages33.

These examples of national courts show that the CJEU rulings have still left room for the courts of the Member States to adopt different interpretations, which has led to different results. This means that, so far, it plays a significant role whether the violation occurred in Germany or in Italy. That makes it more difficult for consumers to claim damages under specific Member States legislation. 34

On the other hand, the Manfredi35 case highlighted? that the EU legislator cannot and shouldn’t solve all the issues that arise from the damage actions. The principle of effectiveness, that requires that the national rules do not make the exercise of the right practically impossible and the principle of equivalence, that requires that the same rules, which are used in the violation of the national competition law, have to be used to the violation of the EU competition law, are mentioned in the above cases. This is also proved by the Kone case, in which the Court held that the principle of effectiveness requires national courts to confirm the causal link between the cartel and the higher prices.36

As the Commission’s Staff Working Paper37 concluded, the actions for damages for the violation of competition law rules were in general totally underdeveloped and an astonishing diversity exists in the approaches of the Member States. According to this study, also, since 1962, only few cases of successful damage’s awards for the violation of the EU antitrust rules,

31_{C-453/99 - Courage and Crehan, ECLI:EU:C:2001:465}

I-6619

33_{Bovis, C., & Clarke, H. (2015). Private Enforcement of EU Competition Law. Liverpool Law Review, 36(1), p. 55} 34_{Bovis, C., & Clarke H. (2015)., ibid, p. 55}

I-6619

36_{Drexl J. (2015). ibid. p. 6}

37_{Commission Staff Working Paper, Annex to the Green Paper Damages actions for breach of the EC antitrust}

rules (2005) see here:

(13)

13

took place, and the same limited number is seen in cases of violation of national competition law rules.38

As a result, the EU legislator took the chance of clarifying the area of the right to damages. This initiative of the EU legislator creates a level playing field of the rules of the right to damages. Under this Directive, the legislator tries to solve the issues that have arisen regarding the legal standing of the claimants, the disclosure of evidence, the quantification of damages and other issues that create obstacles to consumers as future claimants, through provisions that aim to create substantive and procedural legal certainty. All in all, a level playing field in this area is a step toward the creation of a healthier internal market in EU.39

Overall, this Directive’s main objective is to minimize the loopholes that are created and to create a stable legal basis for this kind of actions, as well as, to provide solutions that are based on uniformity.40

For these reasons, and, mainly, because the legal regime existing before the Directive could create legal uncertainty to the claimants, in general, and consumer as claimants, specifically, the choice of the Directive can be considered as a legal necessity. This is obvious when we consider that the Directive aims in filling the gaps that the CJEU case law created. The other solution that could have been followed was more concrete recitals in the case law. But, as it is well known, the role of the judge is rather to answer the specific questions in a case to case basis than to create general rules that can be adopted by the legislators of the Member States. On the other hand, the choice of a Directive as the method to unify the right to damages for violation of competition law, instead of the choice of a Regulation has a meaning as well. In the field of consumer law protection the legislator uses Directives, because consumer policy is a shared competence between the EU and the Member States, and for this reason the EU has limited powers.41

Lastly, the choice of the method of Directives gives the advantage to the national legislator, as well, to decide the way that the Directive will be implemented. This means that some Member States may decide to adopt stricter rules and some others looser, depending of course to the nature of the Directive as a full or minimum harmonization.

3.2. Background of the Directive

In 2005, a law firm was commissioned to make a study over the possibilities and limitation to seek damages for the violation of the European competition law. This study (“the Ashurst

38_{Bovis, C., & Clarke, H. (2015). ibid, p. 55}

39_{Bovis, C., & Clarke, H. (2015). Private Enforcement of EU Competition Law. Liverpool Law Review, 36(1), p. 54} 40_{Bovis, C., & Clarke, H. (2015). Private Enforcement of EU Competition Law. Liverpool Law Review, 36(1), p. 50} 41_{Twigg-Flesner, C. (2011). ‘Good-Bye Harmonisation by Directives, Hello Cross-Border only Regulation?’ – A}

(14)

14

study”), showed that the different laws in the Member States were underdeveloped and that only a small number of victims were compensated. 42

This study was followed by a Green Paper by the Commission43_, _{where some significant} obstacles were identified towards an efficient system of claims for damages. For this reason the paper states that through the facilitation of bringing such actions, the benefit wouldn’t be only in favor of the individuals or the undertakings that would be able to invoke damages but also for the enforcement of the antitrust law.44 The main purpose of the Green paper and the Commission’s Staff Working Paper45_{was to identify these obstacles and to show the options} for different approaches for future European action in this field.46

The specific topics that this Green paper included were: access to evidence, fault requirements, damages, the so-called “passing-on defense” and indirect purchaser’s standing, the defense of consumers interest, the cost of the actions, the coordination of public and private enforcement and lastly the jurisdiction and applicable law. The main objective of this green paper was to receive as much feedback as possible. The question was “should something be done to enhance the prospects of bringing successful claims for damages under articles 101 and 102 and, if so what?”47

The feedback that the Commission received was significant. Over 150 replies were received and the general agreement of these comments and suggestions was that more effective rules for the right to damages were necessary. The substance of the received comments was that the low degree of the compensation that the victims received was due to the national law’s procedural obstacles.48

In 2008, the White paper of the Commission was published49, which included several legislative proposals in order to ameliorate the actions for damages, introducing also representative actions and opt-in collective actions for the victims of small damages. Also the

And Beyond [e-book]. Oxford: Hart Publishing; 2016, p.5

43_{http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52005DC0672&from=EN} 44_{Green paper of the Commission p. 3}

rules (2005) see here:

http://ec.europa.eu/competition/antitrust/actionsdamages/sp_en.pdf

46_{Green paper of the Commission p. 4}

47_{Milutinović, V. (2010). The 'right to damages' under EU competition law from Courage v. Crehan to the White}

Paper and beyond (European monographs 73). Alphen aan den Rijn: Kluwer Law International, p. 77

49_{White Paper of the Commission (2008) Damages actions for breach of the EC antitrust rules:}

(15)

15

White Paper proposed that once a victim has already proven the infringement of the articles 101 and 102 TFEU the infringer should be liable for the damage that caused to the parties. 50 As the main objective of the White Paper is to give specific solutions for the highlighted issues of right to damages, the first guiding principle is the full compensation principle51 According to this Paper the proposed measures and policy choices involve the issues of : indirect purchasers and collective redress52, the access to evidence: disclosure inter partes53, the binding effect of NCA decisions54, the fault requirement 55, the quantification of the damages56, the passing on phenomenon57_{, the limitation periods}58_{, the cost of damages actions}59_{and lastly} the interaction between leniency programs and actions for damages60.

After 8 years the Commission presented its Proposal for Directive61 and in December 2014 the Directive was adopted, as it was mentioned also above. The reasons for the Commission’s delay were two, firstly due to the difficulties that were faced to the evidence as part of the leniency program and secondly due to the difficulties to reach a general consensus for the adoption of the collective redress mechanism.62

3.3. Right to damages under the Directive

The most important, probably, principle that the Directive sets out is the full compensation principle63. Full compensation means that the person, which suffered the harm, should be placed in the position that it would have been in if the violation of competition law hadn’t taken place. This means that the compensation should cover apart from the actual loss, the loss of profit, and the payment of interest. However, overcompensation should be avoided64. Overcompensation can be considered as an extra award, as the punitive damages award, or multiple damages or any other type of damages apart from the one described above may be given the claimant.

As concerns the legal standing, the Directive states that any natural or legal person may seek damages for breach of competition law65. The most important issue that this Directive explicitly

51_{See White Paper point 1.2} 52_{Ibid 2.1} 53_{Ibid 2.2} 54_{Ibid 2.3} 55_{Ibid 2.4} 56_{Ibid 2.5} 57_{Ibid 2.6} 58_{Ibid 2.7} 59_{Ibid 2.8} 60_{Ibid 2.9} 61_{http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0404:FIN:EN:PDF} 62_{Strand M, Iacovides M, Bergström M, ibid , p.6}

63_{Art. 3} 64_{para. 3 art. 3} 65_{para. 1 art. 3}

(16)

16

addresses is the problem of the indirect purchasers,66 which can claim damages, and there is no more need of a contractual relationship between the victim and the legal or natural person that violated the competition law rules. 67

In the matter of the disclosure of evidence68 to the claimants, the Directive, states that Member States should ensure that the relevant courts will be able to disclose evidence to the claimants as precisely and as narrowly as possible69 on the basis of reasonably available facts, and as proportionate as possible. In order to determine this proportionality, the courts should consider the legitimate interests of all parties involved, as well as the interest of third parties. 70_Also, national courts may disclose confidential information, when this information is considered relevant to the action for damages.71

Overall, under these provisions the Directive tries to draw a balance between the conflicting interests of the claimants and the leniency programs. The Directive generally states that is at the discretion of the national courts to decide whether and to which extend they will allow claimants or future claimants, so they can decide whether or not to file an action.

Furthermore, joint and several liability is introduced for undertakings which have infringed competition law in joint behavior72. This principle means that the claimant may choose from all the undertaking that took part in the anti-trust action, one undertaking for example that will be obliged to compensate the victim for the total amount of the damage and not only for that part that this specific undertaking contributed to this damage. What can happen later is that this undertaking may seek the amount from the other undertaking through a different action. However, there is an exception from the provision of joint and several liability 73.This exception provides that, under specific circumstances, an undertaking is liable only to its direct and indirect purchasers. This is the case, for example, when an undertaking is a small or medium size (SME) that has a market share under 5% at any time during the infringement of the competition law and the principle of joint and several liability may jeopardise the economic viability of the undertaking.

There is, though, an exception to this exception, that means that we go back to the rule, and an SME is jointly and severally liable under two conditions. Firstly when this SME has led the infringement of the competition law or has coerced other undertakings to take part, and secondly when it has violated the antitrust rules again in the past.74

66_{Art. 14}

67_{Editorial comments, "One bird in the hand..." The Directive on damages actions for breach of the competition}

rules. (2014). Common Market Law Review, 51(5), 1333-1341, p.1338

68_{Art. 5} 69_{para. 3 art. 5} 70_{para.3 art. 5} 71_{para. 4 art.5} 72_Art.11 73_{para.2 art.11} 74_{para. 3 art. 11}

(17)

17

The passing on defense is also explicitly allowed under this Directive. A defendant may invoke the fact that the claimant passed on the whole or part of the overcharge resulting from the violation of the competition law and the burden of proof remains on the defendant 75_This means that for non end consumers can be decided that they passed the damage to their consumers, so in the end they didn’t suffer any damage.

In the substance issue of the quantification of the harm76, the Directive mentions that neither the burden of proof nor the standard of the proof required for the quantification of the damage should lead to making the exercise of the right to compensation practically impossible or excessively difficult. That means that the national courts have to estimate the damage occurred, if it is extremely difficult for the claimant to quantify his harm. Also, the national competition authority may assist in the determination of the quantum of the damages.77

What is remarkable is the provision of the presumption of the damage caused by the creation of cartel (101 TFEU), but not by the abuse of a dominant position in the market (102 TFEU), which means that the claimant shouldn’t prove the harm, but on the other hand the infringer still has the right to rebut that presumption.78

The directive also included a separate article about the consensual settlement on subsequent actions for damages79, which provides that following a consensual settlement the claim of the suffered party should be reduced by the settling co-infringers’ share of the harm. Also, national courts when they determine the amount of contribution that the co-infringer may recover from some other infringer, should take in account the amount that the infringer already paid to settlements.

4. What are the main obstacles that consumers face when they claim

damages for breaches of competition law ?

The Commission estimated that only the 25% of the cartel decisions in the period 2006-2012 were followed by private claims for damages. Also, from this small percentage, the majority were actions coming from large enterprises, whilst the consumers and the SMEs preferred not to take part in this procedure. Moreover, it has been estimated that the consumers as a victims

75_Art.12 76_Art.17 77_{para.3 art 17} 78_{Ibid. para.4 art 17} 79_{Ibid. art.19}

(18)

18

of cartels and abuse of dominant position by the undertakings, suffer a loss approximately 69 billion euros per year.80

The problems that consumers face in order to bring an action before a court can be divided to four main categories, substantive, procedural, practical and other reasons.

4.1. Substantive obstacles 4.1.1. Access to evidence

As it is obvious, the key evidence of the violation of competition law rules is held by the undertaking that took part in the cartel. This first obstacle seems to be overlapped if there is a fine of a national authority to the relevant undertaking(s). Because in this case, the evidence has at least been collected by the relevant authority. However, also in this case there is an issue faced. Due to the fact that the disclosure rules are different between the Member States, it is uncertain under which conditions the Member States authorities will give permission for any information disclosure. An example may be given by the difference between the civil law and the common law countries. In the civil law countries, the provision of information disclosure usually are more strict and do not allow access, whilst in common law countries the parties have to disclose the documents that might help the claimants to prove the overcharge.81

On the other hand, this problem is getting more complicated by the fact that, according to the Commission Staff Working Paper82 , the decisions of national competition authorities and other Member States’ court decisions do not have a binding effect on civil proceedings of some Member States. This is problematic because claimants generally and consumers specifically will have to prove specific elements of the violation of the competition law, that normally should be taken as already proved.

Furthermore, according to the Green Paper83_{, in order to minimize the burden of evidence} disclosure of the national authorities, access to this evidence should be arranged by the parties, and not by the national authorities. This statement seems to complicate the things, because it is uncertain if a system like this can work in civil law countries.

4.1.2. Causation link

To begin with, one of the main obstacles that consumers face is the causation link between the act of the violation of the competition law and the damages that occurs due to this violation. Under tort law, where there is no contractual link between the parties, the claimant has to prove the violation of a competition law provision, the damage and the causal link .84

80_{Bovis, C., & Clarke, H. (2015). Private Enforcement of EU Competition Law. Liverpool Law Review, 36(1), p. 50} 81_{Zygimantas J. (2014) Obstacles in European Competition Law Enforcement: A Potential Solution from}

Collective Redress, European Journal of Legal Studies (2014) 7(1) EJLS 125, p. 6

82_{Commission Staff Working Paper, p. 13} 83_{Green Paper, ibid. p. 5}

(19)

19

In other words, the burden of proof lies with the claimant that has to prove that the act of violation of competition law has caused the harm that the plaintiff suffered. This task becomes even more difficult because Member States might require a different certainty of the legal causation. The burden of proof in consumer cases is more complicated, due to the complex nature of the cartels and the pricing that a cartel creates. Even if the defendants have already suffered a fine by a public authority, that someone might think that makes the situation easier for the consumers, still the consumers in these cases have to prove that the very exact violation created this exact damage to them. 85

Moreover, consumers are in general indirect purchasers of the cartel members, and this has the result that they suffer damages when the overpricing is passed-on to the consumers by the intermediate. Because of this, consumers cannot easily prove the damage, and due to the remoteness of the causal link, this element is also difficult to be proved by the consumer. Also, it has to be borne in mind that if both direct and indirect purchasers seek damages for the very same infringement, then the same damage may be compensated two times by the national court. 86

Furthermore, another issue arises when we refer to causation, that is, a test that is used by the courts in order to establish the causation relationship. This test (among others that can take place) is called “but-for” or “counterfactual scenario” and examines the scenario if the violation hadn’t taken place. In other words, the courts have to determine what would have been the position of the claimants but for the competition violation. This scenario though requires the determination for example of the type of the harm, of the market context and the type of claimants. This as it is obvious needs complex economic analysis that is not easy to be done in simple consumer cases.87 This issue creates obstacle in the causation as well as in the quantification of damages, because it is also connected with the determination of the amount of the damage.

4.1.3. Quantification of damages

A third problem that consumers have to deal with, is the significant issue of the quantification of the damages. The purpose of awarding damages, in general, is to compensate and put the claimant in the position that would have been if the infringement hadn’t taken place88_.

As the calculation of the damages might become difficult in usual torts cases, then, we can imagine how more difficult can it be when the question comes to the quantification of the damages that a cartel resulted. In that case, complex financial methods have to take place in order to determine the exact damage, that any close or remote to the carter person, suffered.

85_{Zygimantas J. (2014) Obstacles in European Competition Law Enforcement: A Potential Solution from}

86_{Hjelmeng, E. ibid. p.28-30}

(20)

20

As it is argued,89 the problem is more complicated, because in cartel cases the court has to answer the question of what would have been the price of the product, if the carter hadn’t taken place. In order to answer this, potential factors have to be removed. This is not an easy task for the claimant to prove or the national court to determine. This issue creates a huge obstacle to consumers because in order to prove the damage, by the hypothesis of how much would have been the price of a good or service if the cartel hadn’t taken place, they have probably to pay significant cost to experts and lawyers.

Even if the overcharge is determined precisely, then another substantive question arises, what is the best solution of the way of the compensation. This issue arises due to the fact that there can be two categories of consumers that have suffered the harm. The first one is the group of individuals that suffered significant losses, where in this case is easy to determine the award. But, where there are many individuals or SMEs that have suffered insignificant damages, then the role of the court is more difficult.

On the other hand, a disagreement about the correct economic method occurs, because when different methods are used, then different results arise. For this reason, the most common objection by the counterparty is about the financial method that is followed by the court. This results to judgments that estimate the damage by trying to find the medium size of the results that the claimant and the defendant support as valid.90

It has to be mentioned, that the difficulties of the quantification of the damage are not only due to the complex financial methods, but also because there are not EU uniform provisions regarding the proof and what is considered as sufficient evidence.91

The fact that the claimants face difficulties in cartel cases as for the quantification of the damages lies also with the issue lack of information that is disclosed to them. This lack of information is the disclosure of evidence of the infringement by the relevant national authorities to the future claimants.

Lastly, we can add that the problem that was faced also in the causation link obstacle, in the case that we have both direct and indirect purchasers, where the damage may be compensated twice tackles the issue of the quantification of the damage as well. The following example will demonstrate this problem. If a monopoly sells products to professional customers in higher prices then there are two options for the costumers. First to absorb the overcharge or second to pass the overcharge to the other consumers. In the latter situation both parties have suffered damage. The role of the national courts is to determine the amount of damage. But, as it is obvious quantification is uncertain and contains problems, due to the lack of the uniform guidelines.92

89_{Hjelmeng, E. ibid. p.30-31}

90_{Bovis, C., & Clarke, H. (2015). Ibid.p.59} 91_{Bovis, C., & Clarke, H. (2015). Ibid p. 59}

(21)

21

Furthermore, in the Commission Working Staff Paper93, that was included as an annex to the Green Paper, as an example of the difficulty to determine the quantity of the damage is given the following: in the case of a cartel, the gained profit equates with difference between the competitive price and the overcharge. But, this calculation doesn’t take into account the lost profits for sales that the defendant didn’t do due to increasing of the price. This is relevant because in EU intellectual property law, for example, the calculation of the profits of the defendant, under intellectual property rights, takes into account the lost profits of sales, due to the overcharge. That gives a precise amount of profits of the defendant, who lost some profits due to the increased price. Under this principle the fluid nature of the calculation principles is observed between different fields of EU law.

4.1.4. Requirement of fault

Regarding the requirement of fault, that is the opposite of strict liability, a question of whether or not this requirement would deter consumers to claim damages is posed. As it has been ruled by the CJEU in the Dekker case94 the requirement of fault might be considered contrary to the effective judicial protection. Although, due to the lack of numerous actions of private parties under EU competition law it is difficult to determine whether a requirement of fault is a “de facto barrier to private actions”. Under the public enforcement cases we have seen that the infringement itself suffices, and there is no necessity of proving any fault of the infringer.95 On the other hand, it is well known that the strict liability rule would make the things easier for the claimants and it would lead to a more effective private enforcement.96 The fault requirement of some national laws would make it extremely difficultspecifically for consumers to claim damages.

4.2. Procedural obstacles 4.2.1. Legal standing

As it concerns the procedural obstacles, first can be noted the legal standing provisions. The requirement of legal interest of each consumer for a valid action might be considered as an obstacle for the legal standing of the consumer. The legal interest, which is required, means that the consumer has suffered a specific damage. As we have seen above, the proof of a specified damage is problematic. This leads also to problems that are connected to the legal

rules (2005), p. 42, see:

http://ec.europa.eu/competition/antitrust/actionsdamages/sp_en.pdf

94_{C-177/88 Dekker (1990), ECR 3941}

95_{Hjelmeng, E. (2006). Consumers’ right of action in antitrust cases: Current problems and future solutions. pp.}

26-27

(22)

22

standing of the consumers, because usually the end-consumers suffer insignificant damages comparing to other competitors.

Also, as it was highlighted, when the case involves many individuals with insignificant harms, then the legal standing provisions may become an obstacle. Because, apart from the countries, in which the class actions have been implemented in their legal system, the collective interest it is protected by the public enforcement of the competition rules but not from a private enforcement of the competition law rules, as it is the compensation of losses.97

The reason why collective actions are significant in the cases of damages actions because of the violation of the competition law, is that end-consumers most of the times do not hold court-proof evidence98 and the national authorities sometimes are reluctant to provide information and evidence, because that are afraid that they might get sued because they provided the wrong evidence. This result to fewer stand-alone actions of consumers in general.99

4.2.2. The burden and the standard of proof

The general rule under the Member States civil procedure law is that the claimant has to prove his allegations. This means that the consumers, for example, have to prove the violation of the competition law, the harm caused by the violation and lastly the causation link between these elements. In other words, the burden of proof lies with the claimant.100 The difficulty arises due to the information asymmetry of the parties. This information asymmetry exists when one party has in its control or access to more evidence than the other party regarding a claim. The first question that is posed, is whether the claimant has to prove the violation of the competition law provisions.101 Of course, this issue is faced only when the members of the cartels haven’t got a fine yet. This happens because when there is a decision of national authorities or the European Commission, then no violation has to be proven.

Specifically, in the EU level, the Regulation 1/2003 provides the rules for actions based on antitrust rules. Specifically, the article 16 (1) of the Regulation 1/2003 provides that when the Commission has already decided on an issue regarding the articles 81 or 82 EC and national courts rule on agreements, practices or decision relevant to the above decision of the Commission, then the national courts may not decide counter to what already has the Commission rules. This is a way of res judicata of the commission decisions for the national courts.

Moreover, the second question that arises about the standard of proof is connected to the fact that the Regulation 1/2003, doesn’t regulate this issue. For this reason, national law has to regulate the standard of proof issue as well. It can be mentioned, that the civil law countries

97_{Hjelmeng, E. ibid. p.25-26} 98_{for example invoices or receipts}

99_{Bovis, C., & Clarke, H. (2015). Private Enforcement of EU Competition Law. Liverpool Law Review, 36(1), p. 56} 100_{Commission Staff Working Paper, ibid. p. 25}

(23)

23

follow the “win the conviction” of the judge rule. But, on the common law countries the rule is a “balance of probabilities” test.102_{This deviation creates differences in the level of the} protection that consumers receive in each legal system.

4.3. Practical obstacles

Apart from substantive and procedural issues, there are some practical impediments for the consumers. One practical obstacle for consumers is the fact that usually unaware of existing violations, whilst intermediate buyers are more likely to understand a competition violation.103 On the other hand, it seems that they lack in financial incentives, when the damage per each consumer is insignificant.104This happens b the consumer for example has no reason to choose to file an action demanding one hundred euros of award.

Furthermore, a consumer in order to bring an action for small amounts may pay more in the litigation proceeding that what he or she will gain. According to the Final Report about the way antitrust damages action may be more effective of 2007, 105 the plaintiff’s incentive to sue can be described by a simple model: “as the result of a cost benefit comparison, or as an investment decision”. In other words, the plaintiff decides to sue when he or she seeks a positive payoff. The main goal of the claimant is based on the award from a possible settlement of the award of the final trial.

In respect of these calculations there are many factors that the claimants bear in mind, such as the prospective damage award, the probability to settle, the probability to win at trial, the legal fees for litigation, the legal fees for settlement, the court fees, the opportunity cost of effort devoted to litigation, and the opportunity cost of effort devoted to litigation.106

The results of the above mentioned formula, as the study continues107 show that for example more incentives to the claimants would be given by multiple damages action, a reversal of the burden of proof in favor of the claimant, a one-way shifting rule as well as the way of funding of the private litigation. Overall, the costs of each litigation and specifically the attorneys’ fees are greater that the courts’ award sometimes and that will lead the consumers to think if the award worths the hassle.

Furthermore, usually the courts of the Member States use the principle that loser pays the costs of the litigation. That means that a consumer has to pay the other the other party’s costs. But, it is obvious that the undertaking that take part in cartels are large companies and of course

102_{Commission Staff Working Paper, ibid. p. 25}

103_{Final Report, (2007), Making antitrust damages actions more effective in the EU: welfare impact and potential}

scenarios, p. 263, see here :

http://ec.europa.eu/competition/antitrust/actionsdamages/files_white_paper/impact_study.pdf#page=441

104_{Hjelmeng, E. ibid. p.10, Final Report, (2007), Making antitrust damages actions more effective in the EU:}

welfare impact and potential scenarios, p. 265, see here :

http://ec.europa.eu/competition/antitrust/actionsdamages/files_white_paper/impact_study.pdf

105_{Final Report, (2007) , ibid. p. 175,} 106_{Final Report, (2007), ibid. p 184} 107_{Final Report, (2007), ibid. pp. 175-176}

(24)

24

they will have more significant costs that a consumer, subsequently this might lead a deterrent element for the consumers when they want to decide whether or not to sue.108

Finally, it is noted109_{that in developing countries or smaller countries, an obstacle might be} created by the fact that the individual might be afraid to deal with huge companies and enter into a trial with them.

4.4. Other reasons that create obstacles

As we saw procedural, substantive and practical impediments are faced by consumers as claimants to damages due to the violation of competition law. But, there is another question that arises as a result of the above analysis, are there any other reasons why consumers don’t want to get involved in claims for damages?

It has been argued110 that psychological issues may arise due to the lack of legal certainty about the soundness of the evidence that is provided. Also, the amount of damages seems to play a role in the decision of the claimants to claim damages. As it has been noticed that the risk/reward balance might be not proportional for the consumers, so that in the end they might decide to avoid claims for small amounts.

An example is given by the US legal system that follows the principle of tremble damages as an award to such claims. According to US law, damages are punitive or remedial, but tremble damages have a sui generis character as they have characteristics of both punitive and remedial damages.111 In other words, tremble damages, is the concept of the plaintiff seeking and being awarded for the triple amount of his damage. This way of compensation may give initiatives to consumers as well. On the other hand this might be helpful on the other side as a way of prevention of infringements of competition law. The combination of the tremble damages and the increased likehood of the action may reduce the defendant’s motivation to create a cartel. As a result, it is claimed, that on the one hand the violation conducts will be reduced but on the other the number of such actions will be increased112

109_{Zygimantas J. ibid. p. 5}

110_{Sarra A. Marra A. (2008) Are Monetary Incentives Enough to Boost Actions for Damages in the European}

Union? On the Relevance of Incompleteness of Laws and Evidentiary Requirements World Competition 31(3): 379, 2008

111_{Murphy, Robert S. (1990). Arizona RICO, treble damages, and punitive damages: Which one does not}

belong? Arizona State Law Journal, 22(1), 299-322, p. 302-303

112_{Sarra A. Marra A. (2008) Are Monetary Incentives Enough to Boost Actions for Damages in the European}

Union? On the Relevance of Incompleteness of Laws and Evidentiary Requirements World Competition 31(3): 379, 2008

(25)

25

5. How does the Directive address these obstacles?

In general, the Directive aims at two objectives, first the amelioration of the interaction between the public and private enforcement and secondly ensuring the full compensation of the individuals and undertakings that suffered harm due to the distortion of the competition after the creation of a cartel.113

5.1. Legal standing direct-indirect purchasers

For the obstacle of the legal standing the given solution by the Directive comes from the initial article of the Directive. This article states that Member States have to ensure that any individual who has suffered harm caused by an infringement of the competition law by an undertaking or an association can effectively exercise the right to damages. 114_{This provision broadens the} group of claimants of the damage actions, because it is clear that no contractual relationship is required under the Directive. Under this provision, in other words, indirect purchasers and end-consumers may invoke damages.115 According to article 2 (24) of the Directive, indirect purchasers are the natural or legal persons, that acquired not directly by the infringer but from a direct purchaser or a subsequent purchaser, products or services that were the object of an infringement of competition law, or products or services containing them or derived therefrom. The importance of that the acceptance of indirect purchasers as claimants under this Directive, is obvious if we consider how complicated their claim for damages can be when the supply chain consists more than two levels. Then in this case the end-consumers that are indirect purchasers of the infringer confront significant difficulties when they want to claim damages because they have to follow and prove all the levels of the supply chain in order to be considered as claimants.

5.2. Access to evidence

Firstly, the access to evidence issue that arises from the position that consumers have as they are the last link to the chain, is solved by the Directive in the chapter II and the articles 5-8. The Directive states116 that the Member States should ensure that private parties will have access to the evidence that the defendant or a third party have in their control for the facilitation of their claim.

113_{Kirst, P., & Van den Bergh, R. (2016). The European Directive on Damages Actions: A Missed Opportunity to}

Reconcile Compensation of Victims and Leniency Incentives. Journal of Competition Law & Economics 12(1), 1-30. p.2

114_{Article 1}

115_{Editorial comments, ibid. p. 1338} 116_{Art.5 of the Directive}

Consumer protection and antitrust damages actions under Directive 2014/104: an evaluation