International Mass Actions and Class Actions - C. European Union

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CHAPTER IX

INTERNATIONAL MASS ACTIONS AND

CLASS ACTIONS – C. EUROPEAN UNION

Articles 101 and 102 of the Treaty on the Functioning of the

European Union (TFEU),1 which prohibit anticompetitive arrangements

and abuse of a dominant position have direct effect in the Member

States,2 and are directly enforceable by private citizens.3 While private

enforcement of antitrust violations was originally slow to develop in the

European Union (“EU”), there is now a real focus on facilitating private

redress, including through class actions and settlements.4 Recent

measures, such as the Damages Directive5 and the European

Commission’s (the “Commission”) separate Collective Redress

Recommendation,6 provide for the removal of some of the barriers to

broader class action litigation in the EU. As a result, new or expanded

domestic class action regimes have been introduced in, for example, the

United Kingdom, Italy, Belgium, and France. These developments have

1. Formerl y known as the Rome Treaty of 1957.

2. As were their predecessors: Articles 81 and 82 of the Rome Treaty.

3. Courage Ltd v Crehan [2001] ECR I-6297. That decision led to 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 Rome

Treaty, which expressly empowered domestic courts to apply (the

predecessor versions of) Articles 101 and 102. See also Manfredi v Lloyd

Adriatico Assicurazioni SpA [2006] ECR I-6619.

4. There is a developing terminology in Europe of “collective actions” and

“collective settlements”, but in this chapter we will refer instead to “class

actions” and “class settlements”.

5. 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

Members States and of the European Union (“Damages Directive”).

6. Commission Recommendation of 11 June 2013 on common principles for

injunctive and compensatory collective redress mechanisms in the

Member States concerning violations o f rights granted under Union Law

(“Collective Redress Recommendation”).

310 Class Actions Handbook

been accompanied by a growth of the claimant bar, together with an

increased availability of litigation funding.

This section provides an overview of the main developments at EU

level (including a discussion of the Damages Directive and Collective

Redress Recommendation), while also providing a snapshot of the class

action and class settlement regimes in the United Kingdom, Netherlands,

Italy, Belgium, and France.

A. Brief History of Antitrust Class Action Litigation in Europe

The general antitrust litigation landscape in Europe has traditionally

been quite different from that which prevails in the United States. Some

of the more significant differences from the United States system, in

many European jurisdictions, include the absence of treble damages and

jury trials, the loser-pays principle, more limited discovery rights, and

the ability to bring contribution claims. Many of these differences, which

largely still remain, have presented barriers to broader class action

litigation in the EU. However, the situation in Europe has developed over

the last decade (and especially in the last few years) to the point where

class actions are now both possible and encouraged.

In late 2005, the Commission published a Green Paper7 and

companion Staff Working Paper8 addressing private rights of action for

competition violations. The Green Paper identified several obstacles to

private enforcement of European competition law, including (1) potential

plaintiffs’ limited access to evidence; (2) different regimes’ treatment of

whether a plaintiff must show some level of culpability for the antitrust

violation (as opposed to excusable error); (3) the definition of damages;

(4) how to resolve the pass-on problem; (5) cost recovery; and (6) the

coordination of public and private enforcement. The Green Paper also

specifically raised the prospect of class actions for antitrust violations,

noting that such actions “can serve to consolidate a large number of

smaller claims into one action, thereby saving time and money”.9 The

7. See Commission of the European Communities, Green Paper on Damages

Actions for Breach of the EC Antitrust Rules (Green Paper), http://eur-

lex.europa.eu/LexUriServ/site/en/com/2005/com2005_0672en-01.pdf.

8. Commission Staff Working Paper Annex to the Green Paper on Damages

Actions for Breach of the EC Antitrust Rules (Staff Working Paper),

http://ec.europa.eu/comm/competition/antitrust/actions-damages/sp_

en.pdf.

9. Former European Competition Commissioner Neelie Kroes dismissed the

“opt-out class action, in which one single indiv idual can bring an a ction