UK: The UK Implements The EU Antitrust Damages Directive

The Damages Directive1 seeks to promote private enforcement of EU competition law before national courts across the European Union (the "EU"). The UK Regulations2 implementing the Directive3 were laid before Parliament on 20 December 2016 but will not come into force until after they have received formal Parliamentary approval (the "Implementation Date"). The Regulations will apply to claims brought on or after the Implementation Date, although the extent of their application differs depending on when the infringements to which the claims relate took place. The Regulations will make significant changes to rules governing antitrust damages actions:

  • The Regulations make changes to the limitation periods for competition damages actions brought after the Implementation Date. Limitation periods will in these cases be suspended during investigations by competition authorities and during any consensual dispute resolution ("CDR") process.
  • The Regulations introduce a presumption that cartel infringements cause loss or damage. In future, if there is a finding of infringement, it will be for the defendant to rebut the presumption of loss in any damages action.
  • The Regulations change the rules on passing on. Indirect purchasers will benefit from a presumption that any overcharge suffered by direct purchasers has been passed on to them. Meanwhile, in order to raise passing on as a defence, an infringer will bear the burden of proving that any overcharge has been passed on by a claimant.
  • The Regulations will, in most cases, prevent co-defendants from bringing contribution claims against a defendant that has settled with the claimant.
  • Certain categories of information will become immune from disclosure, including leniency statements and settlement submissions. Pre-existing information and contemporaneous evidence will remain subject to disclosure, even if they were produced to a competition authority in the context of leniency or settlement discussions.

We discuss the changes in more detail in this Alert Memorandum.


1) Antitrust Damages Directive

The right of any natural or legal person to claim compensation for loss suffered as a result of an infringement of EU antitrust rules is well-established.4 The European Commission, however, was concerned that the underdevelopment of national rules governing damages actions in many Member States prevented victims from effectively exercising their rights to claim compensation.

The Directive aims to make it easier for victims of anti-competitive behaviour to seek compensation from infringing parties before national courts in all Member States. In particular, the Directive seeks to harmonise rules governing limitation periods, the passing on of overcharges, the principle of joint and several liability, disclosure, and the quantification of harm.

2) UK approach to implementation

The UK Government consulted on the approach to implementing the Directive in early 2016. It concluded that, because the UK already had well-established rules governing rules for antitrust damages actions, an overall "lighter touch" approach to implementation would be more appropriate than copying out the Directive's provisions in their entirety. Under this approach, existing provisions that already meet (or exceed) the Directive's requirements will be left in place, and changes will be made only where necessary.

The Directive applies only to cases involving a breach of EU competition law, including where both EU and national competition law are infringed. Member States are not required to implement the provisions to claims that relate solely to infringements of national competition law. The UK Government considered, however, that having different rules depending on whether a damages action is based on EU or UK competition law would lead to uncertainty for businesses and consumers, not least because most damages actions are based on both EU and UK competition law. Therefore, although not required by the Directive, the UK Government has decided to apply the provisions of the Directive to all competition damages actions.


1) Temporal application of the Regulations

The Regulations implementing the Directive will come into force on the Implementation Date. The Regulations distinguish between "substantive" and "procedural" provisions.5 "Substantive" provisions of the Regulations apply only to the extent that a claim relates to loss suffered on or after the Implementation Date as a result of an infringement that took place on or after the Implementation Date. "Procedural" provisions of the Regulations apply to all claims brought on or after the Implementation Date, whenever the relevant loss was suffered and whenever the infringement took place.

Thus, a claim issued on or after the Implementation Date relating to loss suffered as a result of an infringement that took place before the Implementation Date is subject to the "procedural" but not the "substantive" provisions of the Regulations. The Regulations do not apply to claims issued before the Implementation Date.

2) "Substantive" provisions Limitation periods

The limitation periods in the UK remain unchanged (i.e., six years for England, Wales, and Northern Ireland and five years for Scotland). The Regulations, however, effect changes to the starting point of the limitation periods and set out circumstances under which limitation periods are suspended, leading to the creation of what the UK Government refers to as a "standalone competition limitation regime."

The Regulations copy out the Directive's requirement that limitation periods shall not run until the infringement has ceased and the claimant knows, or can reasonably be expected to know:

  • Of the infringer's behaviour;
  • That the infringer's behaviour constitutes an infringement of competition law;
  • That the claimant has suffered loss or damage arising from the infringement; and
  • The identity of the infringer.

Arguably, existing UK limitation rules already had a similar effect and UK courts would have interpreted UK limitation rules consistently with the Directive in any event without the need for the copying out of the Directive's requirements.6

The Regulations provide for the suspension of the limitation periods during an investigation by a competition authority.7 "Competition authorities" are defined as comprising the Competition and Markets Authority (the "CMA"), the UK sectoral regulators with concurrent competition powers,8 the European Commission, as well as the competition authorities of other EU Member States. The suspension begins when the competition authority commences a formal investigation and does not end until one year after the investigation ends.

The Regulations also provide for the suspension of the limitation periods during any CDR process between the claimant and the defendant.9 The suspension begins from the day on which the claimant and the defendant bilaterally agree to engage in the CDR process and either party can unilaterally end the suspension by withdrawing from the CDR process. There are no limitations on the length of the suspension on account of the CDR process.10

The Regulations further preserve the existing law that provides for the suspension of the limitation periods pending collective proceedings.

As a result of the automatic suspension of the limitation periods in circumstances laid down by the Regulations, defendants engaging in anti-competitive behaviour on or after the Implementation Date would potentially be susceptible to damages actions for a much longer period than at present.

Presumption that cartel causes loss

The Regulations provide that a cartel is presumed to have caused loss or damage. The finding of an infringement in a decision binding upon the courts will therefore, without more, entitle a purchaser from an infringer to bring a claim for loss or damage. The burden of rebutting such presumption of loss will be on the infringer.

Passing on of overcharges

Where an infringement led to price increases that were, in whole or in part, passed along the distribution chain by a direct purchaser, the issue of passing on arises. Indirect purchasers (i.e., those further down the distribution chain) have to prove that the loss suffered by the direct purchaser was passed on to them, in order to establish that they suffered harm and are entitled to claim compensation from the infringer. Passing on, at the same time, provides a defence for infringers against claimants who have passed on the whole or part of the overcharge to their customers.

The UK Government considered that existing case law already established indirect purchasers' right to compensation and the availability of the passing on defence.11 It considered, however, that there remained doubts as to where the burden of proof rested for the establishment of passing on.

The Regulations provide for a departure from the ordinary principles that a claimant must prove the loss it suffered. An indirect purchaser claimant is deemed to have established that the overcharge has been passed on to it by showing:

  • The defendant committed an infringement;
  • The infringement resulted in an overcharge for the direct purchaser from the defendant; and
  • The claimant has purchased goods or services subject to the infringement.

The Regulations also expressly place on the defendant the burden of proving that an overcharge has been passed on by the claimant.

As a result of the Regulations, direct and indirect purchaser claimants in damages actions will be able to rely on presumptions that they suffered loss as a result of an infringement that took place on or after the Implementation Date. Defendants, on the other hand, will have to rebut such presumptions using evidence that normally is in the claimants' or third parties' control or possession.

Exemplary damages

The Regulations prohibit the award of exemplary damages in antitrust damages actions.12

Joint and several liability

The principle that parties to anti-competitive behaviour are jointly and severally liable for the damage caused is well-established. This means that a claimant can seek full compensation from any of the infringers and that it is up to the defendant to claim compensation from the other infringers in respect of the proportion of the harm for which they are responsible.

The Regulations provide for derogations from this general principle in respect of defendants that are small and medium-sized enterprises ("SMEs"), immunity recipients,13 and defendants that settled with the claimant.

In respect of an SME, the Regulations provide that the defendant is liable only for loss caused to its own direct and indirect purchasers, provided that:

  • Its share of the relevant market during the infringement period was less than 5%;
  • Its economic viability would be irretrievably jeopardized but for this provision;
  • It did not lead the infringement or coerce others to participate in the infringement; and
  • It has not previously been found to have infringed competition law.

In respect of an immunity recipient, the Regulations provide that the defendant is liable only for loss caused to its own direct and indirect purchasers and suppliers, except where a claimant is unable to obtain full compensation from other infringers (e.g., due to their insolvency).

In respect of an infringer that settles with the claimant, the Regulations provide that the settling claimant will cease to have a right of action against the settling infringer regardless of the terms of the settlement, except where the other infringers are unable to pay damages (e.g., due to their insolvency). However, it is possible to exclude expressly as part of the settlement the settling infringers' liability for other infringers' shares of the damage where the latter are unable to pay damages.

The Regulations provide that non-settling infringers are precluded from bringing a claim against the settling infringer by way of contribution. Until now, a defendant considering settlement has faced the risk of being brought back into the proceedings by non-settling infringers via contribution proceedings. The Regulations will go some way to ensuring the finality of a settlement in relation to a claim based on an infringement that took place on or after the Implementation Date.

3) "Procedural" provisions Disclosure

The disclosure regime in England and Wales requires parties to damages actions to disclose all documents on which they rely, all documents which adversely affect their own case, and all documents which adversely affect or support another party's case.14

Before the Regulations came into force, only limited categories of documents could be withheld from disclosure, including documents that are protected by legal professional privilege and, in some circumstances, cartel leniency statements.15,16 The Regulations set out broader categories of documents for which the UK courts may not order disclosure.

The Regulations prohibit the UK courts from ordering the disclosure of cartel leniency statements and settlement submissions that have not been withdrawn.

The Regulations also prohibit the UK courts from ordering the disclosure of the following documents before a competition authority ends its investigation:

  • Information sent by the competition authority to an undertaking that is the subject of the investigation, e.g., Statement of Objections, or Requests for Information ("RFIs");
  • Information prepared by an undertaking for the purpose of the investigation, e.g., responses to the competition authority's RFIs; and
  • Settlement submissions that have subsequently been withdrawn.

However, such documents will be admissible as evidence if they are obtained lawfully through routes other than from the competition authority's file (e.g., if they are voluntarily provided by the defendant that originally submitted the leniency statements and RFI responses).

Pre-existing information or contemporaneous evidence (i.e., information that exists irrespective of a competition authority's investigations) is disclosable and admissible as evidence at any time, irrespective of whether it is submitted as part of an undertaking's leniency application.

Decisions of other Member States' competition authorities

Existing laws already provide that the decisions of the CMA, the concurrent regulators, and the European Commission are binding on the UK courts.17

The Regulations provide further that decisions of the competition authorities and national courts of other Member States, whenever they were handed down, may be presented as prima facie evidence that an infringement has occurred. The presentation of such evidence shifts the burden of proof on the defendant to show that it has not committed an infringement.


The Regulations make changes to UK law only where required or to ensure consistency of approach between cases concerning EU and UK competition law. This approach minimises the risk of uncertainty that a copy-out approach could have created as to the application of existing case law.

The Regulations clarify which provisions of the Directive have retroactive application by specifying which of the provisions are "substantive" and which are "procedural." It may nevertheless be some time before the practical application of the substantive provisions (e.g., limitation periods) will be tested. There also remains the possibility of confusion for any claim brought in the UK after 27 December 2016 but before the Implementation Date.

Finally, it is uncertain to what extent the UK will need, or decide, to amend the provisions of the Regulations after the UK leaves the European Union.


1. Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing action for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (the "Damages Directive" or the "Directive").

2. The Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017 (the "Regulations").

3. Although the UK voted to leave the EU in June 2016, the UK remains a full member of the EU until exit negotiations are concluded. The UK Government confirmed that it would continue to implement and apply EU legislation during this period.

4. See e.g., Courage v Crehan, Case C-453/99; Manfredi, Joined Cases C-295/04 to C-298/04.

5. Article 22 of the Directive prohibits the retroactive effect of "substantive", but not that of "procedural", provisions, without, however, specifying which provisions are "substantive" and which are "procedural".

6. Section 32 of the Limitation Act 1980 provides that the limitation period does not run during the period when any fact relevant to a claimant's right of action was deliberately concealed from it. This is commonly understood as meaning that the limitation period does not start to run until the date of the infringement decision in the case of a secret cartel: see e.g., BCL v BASF [2012] UKSC 45.

7. For completeness, the courts already had the power under existing laws to order a stay of the proceedings, including pending an investigation by the competition authorities.

8. Civil Aviation Authority (CAA), Financial Conduct Authority (FCA), Payment Systems Regulator, Monitor, Northern Ireland Authority for Utility Regulation (NIAUR), Office of Communications (Ofcom), Water Services and Regulation Authority (Ofwat), Gas and Electricity Markets Authority (Ofgem), and Office of Rail and Road (ORR).

9. Parties may already enter into a voluntary standstill agreement suspending the limitation periods, including pending any CDR process.

10. Article 18 of the Directive provides that Member States shall ensure that national courts "may" suspend proceedings "for up to two years" pending the CDR process. The UK Government rejected the inclusion of a two-year limitation on suspension for the purposes of CDR, considering that such a limitation would be counterproductive and be counter to the spirit of the Directive.

11. Sainsbury's v MasterCard [2016] CAT 11. For completeness, the Competition Appeal Tribunal noted that passing on was not a defence as such but rather an aspect of the process of the assessment of damage to ensure that a claimant was not over-compensated.

12. Exemplary damages were in principle available and have been awarded in antitrust damages actions in the past: 2 Travel Group Plc (in Liquidation) v Cardiff City Transport Services Limited [2012] CAT 19.

13. Immunity recipients are undertakings that participated in an infringement but were granted immunity from financial penalties in return for blowing the whistle on the cartel under a cartel leniency programme run by an EU competition authority.

14. Civil Procedure Rules, Rules 31.6 and 31.7 and the Competition Appeal Tribunal Rules 2005, Rules 60-65. The rules governing disclosure in Scotland and Northern Ireland are broadly comparable.

15. Cartel leniency statements are information an undertaking voluntarily provides to a competition authority concerning a cartel and the undertaking's role in relation to the cartel specifically for the purposes of the competition authority's leniency programme.

16. In Case C-360/09 Pfleiderer AG v Bundeskartellamt [2011] ECR I-05161, the Court of Justice of the European Union held that there was no absolute prohibition on the disclosure of leniency materials. Rather, national courts were required to weigh the risks of such disclosure undermining the effectiveness of the EU leniency programme against the right of compensation on a case-by-case basis. The English High Court applied Pfleiderer in National Grid v ABB [2012] EWHC 869 (Ch) and ordered disclosure of parts of the leniency statements in question.

17. Competition Act 1998, section 58A.

This article previously appeared on the Oxford Business Law Blog (

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.