The Transposition of the Antitrust Damages Directive in​ Luxembourg

Abstract

The Antitrust damages directive was transposed into Luxembourgish law by the Loi du 5 décembre 2016 relative à certaines règles régissant les actions en dommages et intérêts pour les violations du droit de la concurrence et modifiant la loi modifiée du 23 octobre 2011 relative à la concurrence. The new rules apply to actions for damages introduced after its entry into force on 10 December 2016.

The Luxembourgish Transposition Act is limited to those provisions that are necessary to satisfy the requirements of the Directive. Rules that are (considered to be) included in the general law of obligations or civil procedure are not specifically transposed. In this regard it is noteworthy that the rules of the Directive concerning the power of the Court to order the disclosure of specified items of evidence or relevant categories of evidence circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts in the reasoned justification have not been transposed specifically since the general rules of civil procedure are more lenient. The Directive does therefore not improve the position of the claimant in this respect. The rules of the Directive limiting the court’s power to the disclosure of evidence to what is proportionate and those concerning the protection of confidential information have been transposed. It is uncertain whether this leads to a more restrictive disclosure than that which had been available in the absence of the transposition of these provisions. The claimant’s position improves, however, regarding access to documents in the file of competition authority while the information on the Directive’s grey and black list Art. 6(5) and (6) is protected as required. Before the transposition of the Directive any use of documents obtained as a result of a public enforcement procedure for any other purpose was prohibited.

Legal disputes are expected regarding the application of the Transposition act to damages actions that are exclusively based on infringements of national competition law, the probative value of final infringement decisions by a competition authority or review court of another Member State, the notion of undertaking and its impact on parent company liability, the duration of the limitation period, the quantification of harm, the fact that the presumption of harm is passed on can only be invoked by direct purchasers and not by the infringer as a defence and the secondary consequences of solidarity/liability in solidum.

Keywords: Cartel damages, private enforcement of competition law, antitrust damages directive