European Union: Changes To The UK's Regime For Antitrust Damages Actions To Implement The EU Damages Directive

Last Updated: March 29 2017
Article by Antitrust Watch

Authored by: Rebecca Dipple

Regulations implementing EU Directive 2014/104 (the "Damages Directive") have come into force in the UK. The Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017 (SI 2017/385) (the "Regulations") entered into force on 9 March 2017 and were published on 14 March 2017. The Regulations amend the UK Competition Act 1998 by adding a new section 47F and new Schedule 8A.

The Damages Directive aims at harmonising access to private damages for competition law infringements across EU Member States. As a Directive, it requires implementation by Member States through national legislation.  The UK has a comparatively well-developed private damages regime which already met many of the requirements of the Damages Directive.  However, the Regulations make some significant changes to existing law, e.g. in relation to proving loss.

The key areas covered by the Regulations are as follows:

  • Limitation:  The Regulations provide that the limitation period for competition damages actions shall not start to run until the infringement has ceased and the claimant knows, or can reasonably be expected to know (a) of the infringer's behaviour, (b) that the infringer's behaviour constitutes an infringement of competition law, (c) that the claimant has suffered loss or damage arising from the infringement, and (d) the identity of the infringer. The Regulations also provide for the suspension of the limitation period during an investigation by a competition authority, which includes the European Commission and competition authorities of other Member States, and during a consensual dispute resolution process between the parties.  This increases the period after an infringement during which infringers may be exposed to potential damages actions.
  • Presumption of Loss:  The Regulations introduce a rebuttable presumption that cartel infringements cause loss or damage. This concept did not previously exist in English law but will make it easier for parties who have suffered damage as a result of a cartel to bring claims where there already exists an infringement decision by a competition authority.  Claimants will still need to prove the extent of their loss or damage.
  • Indirect Purchasers:  It is established law in the UK that indirect purchasers (i.e. those further down the distribution chain who did not purchase directly from cartel members) have a right to bring damages claims against infringers. The Regulations make it easier for indirect purchasers to show that they suffered a loss by introducing a rebuttable presumption that an overcharge levied on a direct purchaser was passed on to indirect purchasers.
  • "Passing on" Defence:  If defendants seek to employ the "passing on" defence (i.e. to claim that the claimant passed its loss down the supply chain), they will have the burden of proving this.
  • Joint and Several Liability:  As a general principle of English law, defendants will be jointly and severally liable for the damage caused by a cartel. The Regulations provide for certain exceptions to this principle for small and medium-sized enterprises (as defined in the Regulations) and undertakings which received immunity under the EU cartel leniency programme in return for co-operation with an investigation.  Also, where an infringer settles with a claimant, the settling infringer will cease to be liable to the settling claimant unless the other infringers are unable to pay the outstanding value of the claimant's claim, in which case the settling infringer will be liable for the other infringers' shares (unless expressly excluded by the terms of the settlement).  The Regulations also provide an incentive to early settlement by restricting non-settling infringers from seeking a contribution for damages from the settling infringer.
  • Disclosure:  The UK's existing disclosure regime is wider than the minimum standards required under the Damages Directive. However, the Regulations place limits on the ability of the UK courts to order disclosure of certain categories of documents from a competition authority's file.  The courts may not at any time order disclosure of cartel leniency statements and settlement submissions that have not been withdrawn.  In addition, the courts may not order disclosure of a competition authority's "investigation materials" (such as Statement of Objections, RFIs, responses to RFIs and withdrawn settlement submissions) before the closure of the competition authority's investigation.
  • Proving Infringements:  The Regulations provide that final decisions of Member States' competition authorities are prima facie evidence of an infringement of competition law.
  • Exemplary Damages:  The courts and the UK Competition Appeal Tribunal ("CAT") are prohibited from awarding exemplary damages in competition damages actions.

The Regulations apply both to actions based on EU and on UK competition law.

With regard to commencement, the Regulations distinguish between "substantive" and "procedural" provisions. The substantive provisions in respect of passing on, presumption of harm, joint and several liability, limitation, settlements and exemplary damages will only apply to claims relating to loss or damage resulting from infringements of competition law which took place on or after 9 March 2017.  Given that cartels may take years to come to light, it is likely to be some time before these provisions are tested in the courts.  The provisions relating to disclosure and use of evidence will apply to claims in relation to which the first proceedings before the court or CAT began on or after 9 March 2017.

The full text of the Regulations may be found here.

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
Related Video
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.