1. Commissioner’s Legal Advisor - Italian Competition Authority
Cooperation between Private and Public enforcement in the Damages Directive and beyond
Paolo Caprile
Commissioner’s Legal Advisor - Italian Competition Authority
September

2. Presentation scheme Introduction. Cooperation principle.
Effectiveness of both public and private enforcement.
Conclusions.

3. Introduction Regulation (EC) No 1/2003
The Damages Directive (Directive 2014/104/EU)
Which goals?

4. Directive 2014/104/EU: goals Achieving deterrence
Coordination between private and public enforcement
Already affirmed in Reg. (EC) 1/2003 [art. 15] – European Commission and National Competition Authority (NCA) as amicus curiae
The UberBlack case: «The act by which the Authority submits written observations to the Court fulfils the need for cooperation between the Authority and the Court; it complies with the protection of a public interest and doesn’t support any Party of the proceedings» (Rome District Court – Specialized Division for Enterprise, Ord. 26/05/2017).
See Reg. (EC) 1/2003 [art. 16] 1. When national courts rule on agreements, decisions or practices under Article 81 or Article 82 of the Treaty which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission. They must also avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated. To that effect, the national court may assess whether it is necessary to stay its proceedings. This obligation is without prejudice to the rights and obligations under Article 234 of the Treaty.
Proportionality in order to secure the effectiveness of the public enforcement

5. Instruments of cooperation between NCAs and national courts (I):
Chapter II «Disclosure of evidence»
Assessment on information included in the «black list» [Art. 6 para. 7]:
Leniency Statements – Settlement submissions
Some have argued that is possible to disclose documents of the leniency file (except for statements) with some mitigations:
The information specifically prepared for the proceedings may be disclosed only after a NCA has closed its proceedings [see grey list, art. 6 para. 5].
Disclosure from the NCA as extrema ratio, only where no party or third party is reasonably able to provide that evidence [Art. 6 para. 10].

6. Instruments of cooperation between NCAs and national courts (II):
Chapter II «Disclosure of evidence»: prerequisite
Proportionality of the order to disclose information [art. 6 para. 4]:
Specific request with regard to the nature, subject matter or contents of documents;
Relating to an action for damages before a national court;
Need to safeguard the effectiveness of the public enforcement.
Observations to the national court on the proportionality of disclosure requests [Art. 6 para. 11]
NCA acts on its own initiative
Considerandum 30 of the Directive states that Member States should be able to set up a system whereby a competition authority is informed of requests for disclosure of information

7. Instruments of cooperation between NCAs and national courts (III)
Chapter V «Quantification of harm»
The role of the NCA with regard to the quantification of harm [Art. 17 para. 3]
It may have a lack of neutrality. In this regard it cannot replace the judge and/or the independent technical advisor that are super partes.
Only the courts are empowered to quantify the harm.
NCA may provide guidance on quantum [Recital 46] and give its assistance in pointing out the most suitable economic methods and techniques to quantify the damages.
Critical aspects

8. Enhancing the (private and public) enforcement power (I)
By easing the burden of proof: infringement found by NCA’s final decisions or by a review court are binding on the national court [Art. 9]
Differences between article 16 of Reg. 1/2003 and Article 9 of the Directive
What about commitment decisions?

9. Enhancing the (private and public) enforcement power (II)
By suspending (or interrupting) the limitation period if a NCA takes action in order to investigate or proceed [Art. 10(4)]
2. Limitation periods shall not begin to run before the infringement of competition law has ceased and the claimant knows, or can reasonably be expected to know: (a) of the behaviour and the fact that it constitutes an infringement of competition law; (b) of the fact that the infringement of competition law caused harm to it; and (c) the identity of the infringer.
3. Member States shall ensure that the limitation periods for bringing actions for damages are at least five years.
4. Member States shall ensure that a limitation period is suspended or, depending on national law, interrupted, if a competition authority takes action for the purpose of the investigation or its proceedings in respect of an infringement of competition law to which the action for damages relates. The suspension shall end at the earliest one year after the infringement decision has become final or after the proceedings are otherwise terminated.

10. Enhancing the (private and public) enforcement power (III)
Relevance of leniency programm and settlement agreements: limitation to the disclosure of evidence [Art. 6(7)] - derogation from joint and several liability [Art. 11(4)]
1. Member States shall ensure that undertakings which have infringed competition law through joint behaviour are jointly and severally liable for the harm caused by the infringement of competition law; with the effect that each of those undertakings is bound to compensate for the harm in full, and the injured party has the right to require full compensation from any of them until he has been fully compensated. […]
4. By way of derogation from paragraph 1, Member States shall ensure that an immunity recipient is jointly and severally liable as follows: (a) to its direct or indirect purchasers or providers; and (b) to other injured parties only where full compensation cannot be obtained from the other undertakings that were involved in the same infringement of competition law

11. Conclusions Effective antitrust damages actions must be approached
in order to secure a balance between over and under- deterrence
without undermining the effectiveness of current level of public enforcement
Implementation of an information mechanism
A more specific guidance and coordination on quantification of harm
Fostering the process of specialization of the judges

12. Conclusions (II) Fostering the process of specialization of the judges
Some hints from the Italian experience
2003. Specialised Intellectual Property Divisions
(settled in the Appeal Courts of the main Italian cities)
2012. Specialized Divisions for Enterprise
(at least one for each Italian region at Appeal Courts)
2017. Specialized Divisions for Enterprise
also specialized in antitrust damages litigations
(Milan, Rome, Naples)

13. Thank you for your attention.
Cooperation between Private and Public enforcement in the Damages Directive and beyond
Thank you for your attention.
28 September 2018
Zadar - Croatia

14. Questions for seminar assessments
Yes or no questions
According to Directive 2014/104/EU (so called Antitrust Damages Directive) can the judge order to disclose the leniency statements made by a party before the National Competition Authority (“NCA”)?
According to the Antitrust Damages Directive, if an antitrust infringement is ascertained by NCA’s final decisions or by a review court, are these decisions binding on the national courts?
According to the Antitrust Damages Directive, is the limitation period related to an antitrust suit suspended if a NCA takes action in order to investigate or proceed with respect to the same conducts on which the said antitrust suit is grounded?
Open questions
Which instruments are given by the Antitrust Damages Directive for achieving coordination between National Competition Authorities and National Courts?
Which documents fall under the so called black list and cannot be disclosed by the NCAs, according to art. 6(6) of the Antitrust Damages Directive?
Which role could the NCA play with regard to the quantification of harm by the judges in antitrust suits?