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Elaine Whiteford, Feb 25, 2015
On June 11, 2013, the European Commission launched two initiatives relevant to competition damages. The first, which led to the adoption of the EU Damages Directive in November 2014, has enjoyed significant coverage and publicity. It obliges Member States to allow disclosure of documents to be sought from parties to competition damages litigation, as well as third parties; introduces presumptions about passing-on; clarifies aspects of joint and several liability; and introduces a limitation period of at least five years.
Member States now have until the end of 2016 to implement the Directive’ provisions, although it seems likely that their full impact will be felt only a number of years thereafter as lawyers and judges grapple with practices that have not formed part of their traditional dispute resolution processes. In particular, in many EU jurisdictions, the obligation to allow proportionate disclosure of relevant documents, and not simply documents held on a competition authority’s file, may be transformative of competition litigation, particularly relating to passing-on.
What can be said unequivocally is that the Directive is likely to stimulate further claims and one side effect of that will be to further encourage innovative ways of grouping claims by those who consider they have been harmed by particular tortious conduct. Whatever the advances that have been m…