Commission sends letter of formal notice to 21 Member States for failing to transpose the EU Damages Directive within deadlin…

The European Commission has sent a letter of formal notice to 21 Member States, including Spain, for failing to meet the December 2016 deadline to transpose Directive 2014/104/EU on antitrust damages actions (the “EU Damages Directive”) .

The recipients of such letter are: Latvia, Spain, Estonia, the UK, Belgium, Czech Republic, Slovenia, Cyprus, Malta, Italy, Romania, Poland, Germany, France, Bulgaria, the Netherlands, Austria, Greece, Portugal, Ireland and Croatia . This means that, to date, only seven Member States have fully transposed the said Directive, namely, Denmark, Finland, Hungary, Lithuania, Luxembourg, Slovakia and Sweden.    

The EU Damages Directive, which was adopted in November 2014, sets out the minimum standards that should govern antitrust damages litigation in EU Member States .     Nowadays, rules on the evidence that needs to be presented by victims of cartels before national courts to obtain damages from cartelists are quite strict and make it difficult for victims to succeed in such cases .     The EU Damages Directive ensures that victims can obtain access to certain evidence and that deadlines to bring a lawsuit are reasonable.

EU Member States affected by the letters normally have two months to reply to the EU Commission. If replies are not deemed as satisfactory, the Commission could go one step further and send reasoned opinions . After receiving a reasoned opinion, there is a two month deadline for Member States to reply. The Commission would then analyze the replies and decide whether Member States’ legislation is in line with EU rules .     If that is not the case, an action for infringement of EU Law may be brought before the Court of Justice of EU .