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
plaintiffslimited access to evidence; (2) different regimestreatment 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-
8. Commission Staff Working Paper Annex to the Green Paper on Damages
Actions for Breach of the EC Antitrust Rules (Staff Working Paper),
9. Former European Competition Commissioner Neelie Kroes dismissed the
“opt-out class action, in which one single indiv idual can bring an a ction

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