Keck vs. Trailers: have certain selling arrangements been towed away?

Amanda Spalding

PhD Candidate at King’s College London

 

In the 1990s the European Court of Justice (ECJ) established a distinction between the product requirements and certain selling arrangements in the case of Keck and Mithouard.[1] A few years ago in Trailers[2] the ECJ declined to extend Keck to user arrangements and declared that a measure will be classified as a measure having equivalent effect to a quantitative restriction if it hinders access to the market. Though Keck has not been specifically overruled does this market access test mean that Keck has been abandoned? This post will examine whether the market access test has indeed overtaken the Keck certain selling arrangements exception or whether the tests actually deal with separate situations. There is an argument that the phrasing used in Trailers actually excluded product requirements and certain selling arrangements from the market access test.[3] It is also possible that the market access test only applies when the measure is discriminatory whereas certain selling arrangements only apply to indiscriminate measures.[4]  These arguments will be explained and critiqued here.

 

Pre-Keck

Before jumping straight into the Keck case it is necessary to give a bit of background as to why it was decided. As is well known, in the case of Dassonville[5] the ECJ defined a measure having equivalent effect to a quantitative restriction (MEQR) as ‘all trading rules enacted by member states which are capable of hindering directly or indirectly, actually or potentially intra-community trade.’ This is a very wide definition and a trend started with opponents of regulation attacking national rules in view of EU law compliance.  Thus Member State competence to impose any regulation was severely limited. A good example of this is the Sunday Trading case law which challenged the limits on Sunday trading hours imposed in the UK.[6] Eventually the ECJ declared that these rules could be justified by socio-cultural reasons but by that point the UK Parliament was already under huge pressure to change the law.

 

The Keck Case

The Keck case concerned traders selling goods at a loss which contravened French law. The traders argued that this prohibition restricted a method of sale promotion and so was a MEQR. The ECJ noted ‘the increasing tendency of traders to challenge national rules’ and drew a distinction between product requirements and certain selling arrangements (CSAs). Product requirements would always fall within the scope of EU law and have to be justified but CSAs.  So long as the CSAs applied equally to all traders in the national territory and had the same effect on all traders in law and in fact, fell outside the scope of the Treaty. This French prohibition was a CSA and so was not prohibited under EU law. The Keck case was applied again in Leclerc-Siplec[7] where the TV advertising of fuel distributors was prohibited and was found to be a CSA. After that Keck was not successfully used again in front of the ECJ[8] but more recently a body of case-law concerning ‘user arrangements’ came before the ECJ – where these certain selling arrangements?

 

User Arrangements

In the Trailers case an Italian rule prohibited motorcycles, mopeds, bicycles etc. from pulling trailers thus there was effectively a ban on a certain type of trailer. The ECJ found that the rule did not discriminate with regard to origin but in fact only imports were affected as no trailers were manufactured in Italy. The ECJ identified three situations where a rule could be regarded a MEQR.

  1. Where the object/effect of the measure is to treat products from other member states less favourably than domestic products.
  2. When a measure requires goods lawfully made in another member state to meet another condition even if it applies to all products indiscriminately.
  3. Any other measure which hinders the access of products originating in other member states to the market.

The third situation applied here as the prohibition on the use of the product would have a big impact on consumer behaviour which will affect demand for the product. However this could be justified under the mandatory requirement of road safety.

A second user arrangement case emerged soon after. In Mickelsson and Roos[9] two people were caught riding jet skis on a body of water where the use of watercraft is prohibited by Swedish law. The ECJ did not even refer to Keck but went straight to the definition of a MEQR provided in the Trailers case. It found such a limitation would hinder access to the market as it would deter consumers from buying the product but it could be justified on the grounds of the protection of health and life of plants and animals and environmental protection.

 

Market Access vs. Keck

Though Keck has not been specifically overruled, has it been abandoned in favour of a market access test? Perhaps not as there is an argument that the phrasing used in Trailers exempts CSAs from the market access test.[10] The ECJ reiterates that discriminatory measures and product requirements are always prohibited by Article 34 and that CSAs are only prohibited in so far as they are discriminatory. Then the ECJ states ‘Any other measure which hinders the access of products originating in other Member States to the market of a Member State is also covered by that concept [MEQR]’ The phrase ‘any other measure’ is confusing, since it is not clear whether it refers to the a measure which is not a discriminatory measure, a product requirement or a CSA? Or does it refer to any non-discriminatory measure – including CSAs?

If it is the former situation, then the market access test may be said to apply to residual rules.  Residual rules are those rules which cannot be classed as a product requirement nor can they be considered product requirements but which affect the sale of a product.  Some examples are a requirement to report data, restrictions on the transport of the product and indeed prohibitions on the use of the product. However this reading of the judgement is not without its problems. The most prominent being that, given the nature of residual rules, it does not make much sense in the internal market. Why would the court exclude CSAs from the market access test when they are likely to have bigger impact on the sale of the product than a residual rule? CSAs govern where, when, how and to whom the product may be sold – factors far more likely to affect trade than a requirement to provide data. There is also a potential for overlap between CSAs and residual rules, for example a requirement not to sell cigarettes to under-18s would be both a CSA (to whom) and a residual rule (prohibition on use).

Another argument which suggests that Keck has not been abandoned is the idea that the market access test only applies when a measure is discriminatory.[11] In order for a CSA not to be caught by Article 34 TFEU it must fall equally on all traders in the national territory and affect the same in law and in fact – in other words it must not be discriminatory. If a measure is not discriminatory because it affects all traders equally then it surely follows that there is no market access problem. Any trader trying to break into the market faces the same obstacles as any other. This is a more convincing reading. Although this argument does not seem to stand up against the ECJ case law, a prohibition on trailers for mopeds, for example, would affect any company attempting to start such a business in Italy as well as those from other Member States. In other words it fell equally on all traders but there were simply no traders from Italy. Thus the discrimination distinction seems also to be problematic.

 

Conclusion

Has Keck been abandoned then? Maybe seems to be the only possible answer. This whole area of EU law has been encased in uncertainty for a long time. The refusal of the ECJ to clear up the situation seems bizarre given the obvious potential consequences for both member states and traders. The two explanations outlined above are not without their problems but their adoption by the ECJ would not be all that surprising. It would not be the first time the Court has engaged in strange and contradictory logic.[12] Until the Court chooses to clarify the situation however, traders and Member States will have to deal with the legal uncertainty.

 

[1] Case 267 and 268/91 [1993] ECR I-6097

[2] Case C-110/05 Commission v Italy  [2009] ECR I-519

[3] E. Spaventa, ‘Leaving Keck behind? The free movement of goods after the rulings in Commission v. Italy and Mickelsson and Roos’’, (2009) 34 ELRev. 914

[4] G. Davies, ‘Understanding market access: Exploring the economic rationality of different conceptions of free movement law’, (2010) 11 GLJ 671

[5] Case 8/74 [1974] ECR 837

[6] Case 145/88 Torfaen Borough Council v B&Q plc ECR 3851, Case 169/91 Stoke-on-Trent City Council v B&Q plc ECR 6635

[7] Case 412/93 ECR I-179

[8] Although there is an argument that there are ‘hidden uses’ of Keck in ECJ cases Case 384/93 Alpine Investment ECR I-1141; Case 51/96 Christelle Deliege ECR I-2549; Case 544/03 Mobistar ECR I-7723 but this is outside the scope of this paper.

[9] Case 142/05 [2009] ECR I-4273

[10] For the full argument and rebuttal see E. Spaventa, ‘Leaving Keck behind? The free movement of goods after the rulings in Commission v. Italy and Mickelsson and Roos’’, (2009) 34 ELRev. 914

[11] For the full argument see G. Davies, ‘Understanding market access: Exploring the economic rationality of different conceptions of free movement law’, (2010) 11 GLJ 671

[12] Case 137/09 Josemans [2010] ECR I – 13019

Interchange Transaction Fees: Moving Toward Increased Standardisation and Governmental Regulation

Robert Miklós Babirad

1. Introduction

 

Credit and debit card interchange transaction fees have been subject to increasing governmental regulation and review both within the EU and abroad.  This article will begin with a brief overview of interchange transaction fees as well as the arguments both in favour of and against their stricter regulation by governmental authorities. The proposed EU level regulation for interchange fees will also be considered contextually with regard to a parallel trendoccurringin the United States, which appears to follow a similar methodology to that being pursued by the European Union in this area.

 

In conclusion, it will be suggested that the European Union is engaging in a beneficial move toward increased and stricter governmental regulation of interchange transaction fees with the overall objective of promoting consumer welfare, increasing product price transparency and inhibiting anti-competitive conduct within this field.

 

2. The Controversial Nature of Interchange Fees

 

In accordance with EU regulation, a fee paid between the consumer’s payment service provider and that of the merchant, which has been multilaterally agreed upon (although bilateral agreements may also occur), constitutes a multilateral interchange fee.[1]  Under the U.S. Durbin Amendment, interchange transaction fees are defined as “any fee established, charged or received by a payment card network for the purpose of compensating an issuer for its involvement in an electronic debit transaction.”[2]  Interchange fees are paid per transaction by the bank of the retailer to the bank of the consumer where a payment card is used (the reversal of this payment sequence may also occur).[3]  Additionally, interchange fees are paid for by consumers as part of the cost of their purchase of goods and higher interchange fees have the potential to subsequently result in greater product costs.[4]

 

The issue of increased governmental regulation of interchange fees has both supporters and opponents, because these fees have a significant impact on various parties and interests connected with a transaction.  The interesting nature of interchange fees stem from the fact that the costs as well as the corresponding benefits received by both an issuer and acquirer of a particular payment card are directly associated with the interchange fee that has been established.[5]  Therefore, various parties are impacted by the interchange fee rate as well as the type of payment card that is being employed by the consumer.  It is also important to note that the predominant source of revenue derived by a credit card company, where a consumer is not otherwise liable for other finance costs associated with the use of their payment card, stems from the interchange fee.[6]

 

A difficulty associated with interchange fees is that they are for the most part not readily noticeable by the consumer while generally constituting the greatest part of the fee being paid in connection with their purchase.[7]  Additionally, the use by cardholders of payment cards that produce higher fees is encouraged.[8]  Companies issuing payment cards also compete with each other by offering greater interchange fees in order to “attract issuing banks” to their particular card, thereby also resulting in increased merchant costs, which are passed on to consumers.[9]

 

An argument in favour of the need for greater standardisation and governmental regulation is that interchange fees being collectively established; possess the possibility of constituting anticompetitive conduct.[10]  Increased regulation of interchange fees has the potential to remove hidden costs not readily visible to the consumer and to require retailers to compete against each other on price costs for retail goods that reflect greater transparency.[11]Lower interchange fee charges and increased regulation also possess the positive potential of encouraging banks to issue the cards of new payment schemes such as those emerging in the field of mobile payments.[12]

 

Enhanced governmental regulation and enforcement of interchange transaction fees are necessary, because without such a system in place, these fees have the potential to be used as a bargaining instrument between banks and card issuing companies who may compete to increase their own respective profits exponentially, but without making equal provision for consumers to also derive corresponding benefits.

 

The relatively “hidden” nature of these fees is also troublesome, because of their ability to negatively impact consumers, who may not otherwise be aware that an increase in the price of the goods that they purchase, is directly related to the bargaining occurring between banks and card issuing companies with regard to the setting of interchange fee transaction rates.  A limited or unregulated situation with regard to these fees has the ability to work to the severe detriment of consumers.

 

The lack of an EU level regulation also creates increased disparities where each Member State is individually legislating with regard to the establishing of interchange transaction fees.  Interchange fee rates will vary between Member States as well as the degree of effective enforcement available against their abusive use by banks and card issuing companies, which may seek to attain maximum profits at the expense of consumers.  Additionally, consumers within the European Union may only have the opportunity to fully benefit from the potential benefits otherwise available to them by purchasing within the Single Market, through the establishment of an EU wide regulation, which standardises interchange transaction fees and provides a uniform set of expectations and guidelines that prevent these fees from being exploited by private interests.

 

3. Present Situation in the EU

 

The European Union does not presently have a direct legislative framework in place for the regulation of interchange transaction fees.[13]  The issue has been addressed by the Member States by adopting legislation and enforcement through judicial proceedings by national competition authorities, but this has also led to the creation of disparities with regard to interchange transaction fee regulation throughout the Single Market.[14]  The proposed regulation will fill an existing gap in the legislation, which is currently in place relating to payment services, but which fails to address the need for a system that standardises interchange transaction fees throughout the European Union.[15]

Presently, the Payment Services Directive[16] operates with the objective of providing conditions and consumer rights for payment services on an EU-wide basis and provides for a standardised structure concerning payments throughout the Single Market.[17]  Additional regulations have also been enacted, which complement this provision, but none which directly address the standardisation of interchange transaction fees on an EU-wide level.[18]

Enforcement in the market concerning card payments has also occurred through judicial proceedings related to competition law enforcement by both national competition authorities as well as the European Commission.[19]  The General Court’s judgment in MasterCard, Inc. and Others v European Commission[20] stated that competition is restricted by multilateral interchange fees, consumers do not derive benefits from these fees and card acceptance costs are subsequently increased through their application.[21]Visa and MasterCard have also submitted commitments to the Commission with regard toreducing multilateral interchange fee charges concerning both domestic as well as transactions that cross Member State borders.[22]  However, even these commitments combined with the existing Payment Services Directive are insufficient for the providing of an effective and uniform EU-wide system for the standardisation and effective regulation of interchange transaction fees.

An argument in favour of greater regulation within the European Union is that without such regulation being effected at the EU level, disparities in interchange rates between Member States will continue to hinder competition, the market entry of a greater variety of payment service providers will be restricted, higher consumer prices will result, and an overall reduction will occur in the EU consumer’s ability to otherwise benefit from the advantages of the Single Market.[23]  A trend toward greater governmental regulation and standardisation of interchange fees both within the EU and abroad has necessarily developed in this field in an effort to inhibit anticompetitive conduct while increasing transparency and promoting increased consumer welfare.

4. The EU’s Proposed Regulation for Interchange Fees

 

On July 24, 2013, the European Commission put forth a Proposal for a Regulation of The European Parliament and of The Council on interchange fees for card-based payment transactions.[24]  The proposed EU regulation aims at greater governmental regulation by standardising and capping multilateral interchange fees throughout the European Union.[25]  The cap would be applied to both consumer credit as well as debit cards and be set at 0.3% of a transaction for credit cards and at 0.2% for debit cards.[26]  An interesting aspect of the proposed regulation is that merchants will be able to levy a surcharge or decline acceptance of cards, which fail to have regulated interchange fees.[27]

 

Mr. Almunia argues for the necessity of the proposed EU level regulation, because only greater transparency and the regulating of interchange fees will prevent consumers from otherwise continuing to pay higher prices for retail goods, whose costs are a direct product of inflated and hidden interchange fees, which constitute a portion of the product’s final price.[28]

 

New forms of payment services will also be provided with enhanced regulation under the decision of the Commission to adopt Payment Services Directive Two.[29]  This will have a particular impact in the area of e-commerce and provide for a more “level playing field” between differing providers of payment services.[30]  The overall EU trend appears to be toward increased standardisation and regulation of interchange fees at the EU rather than Member State level resulting in enhanced cost transparency and lower interchange fees for consumers throughout the European Union.  Payment methods, which fail to operate under these regulations, will be at a disadvantage and as a result consumers will be better informed of the actual charges that make up the final cost of the goods, which they purchase.

 

5. A Parallel U.S. Move Toward Stricter Governmental Regulation of Interchange Fees?

 

The United States appears to be following a similar trajectory to that of the European Union with regard to providing for enhanced standardisation and stricter governmental regulation of interchange transaction fees.  In the recent and controversial July 2013 case of NACS v Board of Governors,[31] a U.S. District Court held that the Federal Reserve Board had “clearly disregarded Congress’s statutory intent” in its interpretation of the Durbin Amendment[32] by “inappropriately inflating all debit card transaction fees by billions of dollars” while not providing multiple networks for each transaction involving a debit card, which would be unaffiliated.[33] The Court held that the Durbin Amendment did not enable the Federal Reserve Board to consider, in setting the standard for interchange fees, “any costs, other than variable ACS costs incurred by the issuer in processing each debit transaction.”[34] The Court also stated that the Federal Reserve Board was not empowered by Congress to “make policy judgments” with the result of increased interchange rates for consumers.[35]

 

The Court’s approach is that of a stricter and narrower interpretation of the Durbin Amendment’s standards for the promulgation of regulations by the U.S. Federal Reserve Board with regard to the setting of interchange transaction fees.  A broad interpretation of the interchange fee standard and the inclusion of policy considerations being accounted for in determining this standard was not supported by the Court and this appears to be reflective of a parallel policy approach to that which is being pursued by the EU with regard to its respective call for the stricter regulation and standardisation of interchange transaction fees.

 

 

6. Conclusion

 

Enhanced governmental regulation of interchange fees has the potential to result in the removal of hidden costs, lower interchange fees and increase competition that will be to a greater degree transparent.  Additionally, the development of new payment schemes will be encouraged and consumers will benefit from lower product prices as well as being able to take advantage of the benefits of the Single Market through the common standardisation of interchange fees.

 

Critics of the proposed regulation argue that restrictions on the amount that may be charged as an interchange fee will result in an increase in cardholder fees while there will be no subsequent reduction with regard to the prices charged for retail goods.[36]  The counter argument is that this criticism will not be supported, because competition between banks will occur on the basis of visible cardholder fees as a result of an EU-wide regulation rather than on hidden interchange transaction fees.[37]

 

An additional argument by payment card companies and banks is that increased standardisation and governmental regulation of interchange fees will prevent these entities from being able to generate a profit or to recover their respective expenditures.[38]  Although this does not appear to be a sustainable argument, the validity of this claim will in actuality only be known after the regulation comes into effect.  The Commission anticipates agreement on the proposal by both the European Parliament and the Lithuanian Presidency to occur in the Spring of 2014.[39]

 

 

[1]Payment Services Directive and Interchange Fees Regulation: Frequently Asked Questions, Memo/13/719, 24 July 2013, p. 7.

<http://europa.eu/rapid/press-release_MEMO-13-719_en.htm> Accessed 9th of October 2013.

[2] Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. No. 111-203, 124 Stat. 1376-2223 (2010), § 1693o-2(c)(8).

[3]Frequently Asked Questions, p. 7.

[4] Ibid. at p. 5.

[5]Chang, Howard H., and David S. Evans. “The competitive effects of the collective setting of interchange fees by payment card systems.” Antitrust Bulletin Fall 2000: 641. LegalTrac. Web. 9 Oct. 2013, p. 653.

[6] Ibid.

[7]Farrell, Lisa. “A step in the right direction: regulation of debit card interchange fees in the Durbin Amendment.” Lewis & Clark Law Review Winter 2011: 1077-1106. LegalTrac. Web. 9 Oct. 2013, p. 1083.

[8]Frequently Asked Questions, p. 3.

[9] Ibid.

[10] Chang, p. 654.

[11]Almunia, J, Introductory Remarks on Proposal for Regulation on Interchange Fees for Cards, Internet and Mobile Payments, Speech/13/660, 24 July 2013, p. 2.

<http://europa.eu/rapid/press-release_SPEECH-13-660_en.htm> Accessed 9th of October 2013.

[12] Ibid. at p. 3.

[13]Commission Proposal for a Regulation of the European Parliament and of the Council on interchange fees for card-based payment transactions COM (2013) 550/3, p. 4.

<http://ec.europa.eu/internal_market/payments/docs/framework/130724_proposal-regulation-mifs_en.pdf> Accessed 28th of October 2013.

[14]Ibid.

[15]Ibid.

[16] European Parliament and Council Directive 2007/64/EC on payment services in the internal market OJ 2007 L 319/1.

<http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:319:0001:0036:EN:PDF> Accessed 28th of October 2013.

[17]Commission Proposal, p. 4.

[18] See Ibid.

[19]Commission Proposal, p. 4.

[20]Case T-111/08 MasterCard, Inc. and Others v European Commission [2012].

[21]Commission Proposal, p. 4.

[22]Ibid. at p. 5.

[23]Frequently Asked Questions, p. 5.

[24]Commission Proposal for a Regulation of the European Parliament and of the Council on interchange fees for card-based payment transactions COM (2013) 550/3.

<http://ec.europa.eu/internal_market/payments/docs/framework/130724_proposal-regulation-mifs_en.pdf> Accessed 28th of October 2013.

[25]Almunia, p. 2.

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29]Frequently Asked Questions, p. 1.

[30] Ibid.

[31]NACS v Board of Governors of The Federal Reserve System (D.D.C. Jul. 31, 2013) (Loislaw Federal District Court Opinions).

[32] See Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. No. 111-203, 124 Stat. 1376-2223 (2010).

[33]NACS v Board of Governors, pps. 1-2.

[34] Ibid. at p. 33.

[35] Ibid. at p. 46.

[36]Almunia, p. 2.

[37]Ibid.

[38] Farrell, p. 1079.

[39]Frequently Asked Questions, p. 6.

 

The modernised Professional Qualifications Directive – The end of crisis-induced unemployment in the EU?

Andrea Redondo

LL.M in European Law and Economic Analysis, College of Europe; BSc in Economics and Finance, LSE; LLB, Université Paris 1 Panthéon-Sorbonne and Universidad Complutense of Madrid

 

On 20 November 2013 the Council of the European Union adopted Directive 2013/55/EU on the modernisation of Directive 2005/36/EC on the recognition of professional qualifications.[1] As Commissioner Barnier had predicted,[2] the Council adopted the Directive at first reading, following an agreement with the European Parliament which had itself voted in favour of the text at its plenary session of 9 October 2013. This article analyses the historical background and key features of the modernised Professional Qualifications Directive and provides an answer to the question of whether this modernised Directive will bring an end to crisis-induced unemployment in the EU.

 

Historical background

Long have the days passed where a fully-qualified professional of one Member State was strongly dissuaded from moving to a different country as they would most likely fail to satisfy the requirements to practice their profession in the host Member State and would, consequently, have had to complete, again, an entire training course in the host country. Proof of this blatant restriction to free movement of persons and services is the abundant case law of the Court of Justice in this respect, like the Vlassopoulou,[3] Klopp[4] and Gebhard[5] cases, just to name a few.

In order to overcome this serious hurdle to the achievement of the internal (then common) market, Member States introduced, and subsequently enhanced, rules on mutual recognition of qualifications to reduce the burden for professionals wishing to work in a Member State different from the one where they had acquired their professional qualification.

In 2005, the Professional Qualifications Directive entered into force,[6] which consolidated the acquis communautaire – composed of 15 Directives – in this field of EU law and included some additional innovative aspects. This Directive provided for the following:

  • Automatic recognition for a limited number of professions on the basis of harmonised minimum training requirements. This automatic recognition entailed that the host Member State could only check whether the qualifications were in line with the minimum required by the Directive. Automatic recognition applied to doctors, dentists, nurses, midwives, pharmacists, veterinary surgeons and architects.
  • A general system for the recognition of evidence of training, applicable to a large majority of professions. On this basis, access to regulated professions was granted to any professional demonstrating that s/he is a fully-qualified professional in the Member State where he or she obtained the professional qualification. It is only in the cases where the qualifications of a professional substantially differ from those required by the host Member State or in those cases where the length of the time spent in the profession falls short of those of the host Member State that the latter may impose compensatory measures in order to close the gap and thus grant the professional full access to the relevant field of expertise. These compensatory measures can be of two kinds: (i) an adaptation period which takes the form of a period of supervised practice; or (ii) an aptitude test.
  • A new system of free provisions of services on a temporary and/or occasional basis. With the exception of professionals involved in the public health and safety sector, professionals can, in principle, provide their professionals on a temporary and/or occasional basis without a prior check of professional qualifications.  In this respect, Member States can only gather information on the status of the temporary or occasional workers in an annual declaration which covers detailed information about the establishment, insurance and professional competences in another Member State.

Given that the 2005 Professional Qualifications Directive already seemed like a big step forward, it is legitimate to ask the following question: why did the Directive require a modernisation so shortly after its entry into force? The answer, which was already identified in the Single Market Act of April 2011,[7] is that modernisation is required to reflect the changes and evolutions that have occurred recently in EU labour markets, to bring the Directive into the twenty-first century – in particular in light of the great importance of modern technologies – and to respond to the need of simplification by having a smoother system of recognition of qualifications supporting the mobility of professionals across the EU. According to the Single Market Act, modernising the legislation applicable to the system of recognition of professional qualifications was the key action to improve mobility of EU citizens in the single market. And this is precisely what the modernised Professional Qualifications Directive seeks to achieve.

 

Key features of the modernised Professional Qualifications Directive

Whilst the modernised Directive builds on the achievements of the existing Directive, it also incorporates new features. As the European Commission very elegantly puts it, “the modernisation of the Directive reaffirms the underlying philosophy of mutual recognition and mutual trust between Member States, whilst exploring innovative ways to better reflect it in practice”.[8]

In a nutshell, the key features of the modernised Professional Qualifications Directive are as follows:

  • Creation of the European Professional Card (“EPC”):[9] this is actually one of the major features of the modernised Directive. The EPC, which will not take the form of a physical card due to the risk of falsification or outdating, will be an electronic certificate to allow the cardholder to obtain the recognition of his or her qualifications in a simplified and accelerated manner. In particular, this electronic certificate will be exchanged between competent national authorities through the Internal Market Information System “(IMI”).[10] The competent authority of the home Member State will communicate any requisite information about the professional at stake to the competent authority of the host Member State via IMI, thereby significantly reducing the administrative burden and costs for professionals.
  • Modernisation of the definition for harmonised minimum training requirements for the professions which benefit from automatic recognition. For example, for doctors, the modernised Directive clarifies that the basic medical education ought to be based on 5,500 training hours done within a minimum of 5 years.
  • Mutual evaluation of regulated professions: in order to limit as much as possible the number of regulated professions, Member States will have to provide a detailed list of the professions that are regulated and the activities that are exclusively reserved to these professionals, as well as to justify the need to regulate these professions. There shall be a subsequent mutual evaluation of these professions which shall be facilitated by the European Commission.[11]
  • Common training principles: the currently existing system of automatic recognition will be further extended to new professions on the basis of the common training framework or tests. If in at least one third of Member States access to a particular profession is regulated, a common training framework or test can be established. The qualifications obtained under such frameworks or tests would then be automatically recognised in all the participating Member States.
  • Language skills: the verification of language skills at the host Member States can only take place once the latter has recognised the professional qualification of the individual concerned, although it can, however, take place before the professional accesses the profession. Quite importantly, language verifications – which must be proportionate to the activity pursued and free of charge for the professional – must be limited to the knowledge of only one official language of the host Member State, the choice of which is left to the person concerned in case of multilingual Member States.
  • Training abroad: young professionals wanting to access regulated professions will have the opportunity to do part – or even the entirety – of the traineeship in another Member State.
  • Alert mechanism: the modernised Professional Qualifications Directive is not only intended to enhance the free movement of professionals. It also aims to strengthening the protection of patients and consumers by means of an alert mechanism for education and health professions. More concretely, the competent authority of the home Member States must inform the competent authorities of all other Member States via IMI of any identified professional from these specific sectors who has been – temporarily or permanently – suspended or prohibited from practising his or her professional activity, or who has made use of falsified documents.

 

Conclusion

It is undeniable that the modernised Professional Qualifications Directive is a very important step forward in reducing – perhaps even significantly – unemployment in the EU as an enhanced mobility of professional will allow labour markets to work more efficiently. The new features contained in the modernised Directive are so far-reaching that new generations of professionals will enjoy from a greater exposure to foreign potential employers which will undoubtedly reduce the currently exorbitant levels of youth unemployment. This will have positive consequences not only on professionals, but also on customers and patients who will equally benefit from the internationalisation of free movement of professionals.

However, whether the modernised Professional Qualifications Directive will have specifically such a positive impact on crisis-induced unemployment is much more questionable. In particular, crisis-induced unemployment has most severely affected people in a difficult age range who, following a long period of unemployment, have seen their employability drastically plummet. Furthermore, and rather unfortunately, these people may lack the necessary linguistic skills and have too strong ties holding them back for them to seek job opportunities outside their national borders. This is a reality which Member States and EU institutions seem to have deliberately obviated in order not to face the cruel reality which results from such a floor-shaking crisis as the one we have been experiencing in the European Union for over 5 years now.

Consequently, this modernised Professional Qualifications Directive is certainly to be applauded as it gives a great leeway to future generations of professionals and enhances the protection of consumers and patients, but this does not mean that Member States and EU institutions – and, in particular, the European Commission – can feel relieved from their obligations vis-à-vis current generations of professionals. They must still work hard to put forward tangible and palatable initiatives which will alleviate the current unsustainable situation.

[1] Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (“the IMI Regulation”), available here: http://www.parlament.gv.at/PAKT/EU/XXV/EU/00/29/EU_02996/imfname_10423779.pdf

[2] Statement by Commissioner Barnier, available here: http://europa.eu/rapid/press-release_MEMO-13-866_en.htm?locale=en

[3] Case C-340/89, Irène Vlassopoulou v Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg, [1991] ECR I-2357.

[4] Case 107/83, Ordre des avocats au Barreau de Paris v Onno Klopp, [1984] ECR 2971.

[5] Case C-55/94, Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano, [1995] ECR I-4165.

[6] Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ L 255, 30.9.2005, p. 22), available here: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:255:0022:0142:EN:PDF

[7] Single Market Act – Twelve levers to boost growth and strengthen confidence, SEC(2011) 467 final,  available here: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0206:FIN:EN:PDF

[8] Modernisation of the Professional Qualifications Directive – frequently asked questions (point 5), available here: http://europa.eu/rapid/press-release_MEMO-13-867_en.htm?locale=en

[9] It should be noted, however, that although the Directive creates the EPC as a concept, the introduction of the EPC for a particular profession requires the adoption of further implementing acts by the European Commission.

[10] More information concerning IMI is available here: http://ec.europa.eu/internal_market/imi-net/index_en.html

[11] In this respect, see the Communication of the Commission of 2 October 2013 on evaluating national regulations on access to professions, SWD(2013) 402 final, available here: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0676:FIN:EN:PDF

Europe in Crisis: King’s Policy Institute on Democratic Legitimacy in Europe

Ermioni Xanthopoulou and Adrienne Yong

PhD Candidates in EU Law at King’s College London

 

As part of the continuing “Europe in Crisis” project (kicked off by the UKAEL Annual Lecture by Sir Nigel Sheinwald, a review of which was done earlier on this very blog) on November 12, 2013 an extremely lively panel of three Europe experts debated the question of the democratic legitimacy in Europe. Held by the King’s Policy Institute and chaired by Professor Anand Menon, the public lecture attracted a range of different attendees, from students and professors to practitioners from the Foreign Office and the like. Undoubtedly, the very topical title was a draw in itself, and the debate certainly did not fail to impress. With the personalities of the panellists clashing professionally, a heated and animated discussion fostered an exciting atmosphere for all those present to immerse themselves in, leaving everyone with food for thought as it concluded.

 

John Peet

The first panellist was John Peet, the Europe Editor of The Economist. Given his long serving background in the civil service, it was apt he began with establishing when the notion of a ‘democratic deficit’ was first spoken of. He cites 1979, which presents an interesting juxtaposition with how it may be perceived now. Indeed, this author was under the impression that perhaps the idea of democratic legitimacy would not simply be an institutional question. However, it was this route which the discussion followed hence the solution considered throughout was the directly elected European Parliament. Materialising itself in 1979, it persisted to be the discussed solution to the democratic deficit throughout the 1970s until the 1990s. Peet argues that whilst it was a resolution at the EU level, it was inherently unsatisfactory hence in 2013, the question would still be put forward to the public in a lecture held by King’s.

 

Peet argues that it was unsatisfactory for 3 reasons – firstly, the Council did not answer to national Parliaments. There was a dissonance with the national Parliaments, as they were hardly even interested. Secondly, by the 1990s, the European project had shifted away from federalising the EU and towards handing power back to national governments. Finally, and this would later be contested by the second panellist, the European Parliament never acquired legitimacy despite being directly elected. This was evident from the fall in voter turnout for the Parliament, as many in the EU still questioned the EU. Admittedly, the Eurocrisis had made everything worse. It encouraged increased intrusiveness into national legal orders somewhat by necessity, leading to Peet asking the question “Who elected Ollie Rehn?”[1]

 

Ultimately, Peet concludes by arguing that there needs to be a bigger role for national Parliaments considering that the European Parliament fails to resolve anything in terms of democratic legitimacy. The money in the EU is national, thereby encouraging a greater role for them in terms of their input. Germany truly believes this, given their accountability in terms of the Eurocrisis. More subsidiarity needs to be shown. Peet argues that even a return to pre-1979 may be desirable, scrapping the direct elections completely.

 

Simon Hix

Simon Hix, Professor at LSE on European and Comparative Politics, vehemently protested, ‘disagreeing with everything’ his previous panellist has said. He began by noting that democratic accountability today was important only to a small group of academics given that the Eurocrisis had lead to re-distributional outcomes. Accountability, however, was important because the EU was about the market, primarily. He equates democracy with legitimacy; there was some winners and ultimately and unavoidably, some losers. It was insufficient to rely solely on the national level to provide this accountability. Hix argued that unanimous agreement amongst governments would be better to achieve this.

 

Hix was famously named as one of the last people to believe in the European Parliament. Pre-1979, national MPs were not useful checks on the government, it were the independent MEPs who were more effective. Hix declared himself a European Parliament supporter because the Council was non-transparent in their decision making. This seemed hypocritical to him – it was supposedly the best representative of the citizens but their debates on legislative amendments were not openly available thus far. Transparency was crucial for him; national Parliaments needed to increase the scrutiny of the Council.

 

There were two different checks and balances with the advent of the Council and the European Parliament. As the Commission makes political choices, they must be more democratically political elected. He argues that there is potentially a need for a choice of Commission President in this sense as well. As for the position of the UK, there is also a need for a UK referendum because the EU is so different now. The UK did not sign up to this current architecture, and the question remains do we want to be isolated in the EU, or isolated outside it?

 

Vijay Rangarajan

Vijay Rangarajan, of the Foreign and Commonwealth Office then asserted that democratic legitimacy is a shared problem across Europe as it is primarily an issue of contact between citizens and governance. Moreover, people do not know their rights at the EU level. However, he noticed, as the other speakers also did, that the Eurozone countries are those particularly concerned about the decision-making which concerns them. He interestingly proclaimed that the new European Parliament will have a ‘significant psychotic element’ and he stressed the need for national parliaments’ further involvement. National parliaments in particular need to work together and ‘put a break on efficiency’ when it is necessary. He argued this could possibly enhance democratic legitimacy issues.

 

Later on, Rangarajan referred to the ‘yellow card procedure’, which national parliaments can issue to the Union legislature, requiring the institutions to reconsider a proposal. According to Article 7(2) of the Protocol on the Application of the Principles of Subsidiarity and Proportionality,[2] the draft must be reviewed where ‘reasoned opinions on a draft legislative act’s non-compliance with the principle of subsidiarity represent at least one third of the votes allocated to the national parliaments’ whereas the threshold is much higher for draft legislative acts submitted on the basis of Article 76 TFEU on the Area of Freedom, Security and Justice (AFSJ). In this second case, the threshold should be a quarter. Concerns have already been expressed on the operation and the effectiveness of this procedure, which he reiterated by reminding us that a plethora of national parliaments have voted against the Proposal for a Regulation on the Establishment of the European Public Prosecutor’s Office. Furthermore, he stressed that the Council should determine and clarify what its position is and noticed again that the legitimacy has been undermined by the call for efficiency.

 

Questions

What was really intriguing was the discussion that followed when the audience was given the time and chance to ask the experienced panel various questions. It was a very stimulating opportunity for everyone there. The questions ranged from the different perceptions of democratic legitimacy across countries, the impact of the CJEU rulings on decision making to the information deficit in the concept of a ‘European demos’.

 

Concerning the various experiences of democratic deficit across Member States, Hix mentioned that the countries facing financial and social crises feel more strongly the imbalances of power and the lack of democratic legitimacy. Peet stressed that the problems are huge in the South Mediterranean countries as people feel that they have lost control of the decision making which concerns them directly. He recommends that national parliaments should have a bigger role because people tend to vote on national issues and on the basis of national parties.

 

Regarding the CJEU and its potential role in legitimacy, after pointing out the significance of the division of power principle, the well-established Economist journalist stated that the Court is a rather ‘ignored’ institution and suggested that people should probably have more interest in who is appointed as a judge, given the importance of the case law. Hix then indicated this institution is interesting regarding the issue of democratic legitimacy, as it has been found that the Court quite frequently takes into account to Member States perception and tilts the balance towards a decision considering national perceptions, providing as an example the Tobacco Advertising case.[3] The need for the appointment of real judges and not diplomats or lawyers has been also underscored by Peet, after being hinted at by the bright audience.

 

As a final point of discussion the panel was asked to provide its opinion on whether there is potential for a European demos, consisting of the European youth and the emerging generation. This is indeed a very interested topic considering the common financial and social problems faced by youths’ experiences of crises. There are serious limitations on their freedoms. Hix claimed that a European demos would be the result of a European democracy, and not the prerequisite. However, it should be mentioned that, contrary to Hix’ final argument, for democracy to exist, there should be a demos to rule and that European citizens, albeit unaware of the very existence of it, might actually constitute a European demos concerned with a plethora of common social and financial problems at the transnational level of the EU.

 

Conclusion

Although the Eurozone financial crisis has recently dominated the debates in relation to EU affairs and EU law, as it was noticed by the panel speakers and by EU lawyers, the discussion on the lack of democratic legitimacy in the EU is always a stimulating topic. The problem is far from resolved. It could be said that this topic is enlightened by the changes brought by the Lisbon Treaty with regard to new powers allocated to European Parliament and to national parliaments. Hence, the debate seeks new direction in view of the social and financial problems that the EU countries have recently faced. Those concerns have particularly become greater recently as the people of Europe feel disconnected from the decision-making on tough policies and laws, despite the admittedly enhanced inter-institutional balance, for which there is still much room of improvement. It has been a pleasure to attend such a great discussion, which definitely gave its audience ample food for thought. Although Euro zone financial crisis has recently dominated the debates in relation to EU affairs and EU law, as it was noticed by the panels and by EU lawyers, the discussion on the lack of democratic legitimacy in the EU is always a stimulating topic. Moreover, the problem is far from resolved. It could be said that this topic is enlightened by the changes brought by the Lisbon Treaty with regard to new powers allocated to European Parliament and to national parliaments. The debate however seeks new direction in view of the social and financial problems that the EU countries recently have faced. Democratic legitimacy concerns have particularly become greater recently as the people of Europe feel that are disconnected from the decision-making on tough policies and laws, despite the admittedly enhanced inter-institutional balance, for which of course there is still much room for improvement. It was a pleasure attending such a great speech and discussion which definitely gave its audience food for thought.

[1] Ollie Rehn is the Vice President of the European Commission, and the European Commissioner for Economic and Monetary Affairs. He has outwardly supported fiscal austerity as to the only way out of the Eurocrisis.

[2] Protocol on the Application of the Principles of Subsidiarity and Proportionality [2004] 310/207

[3] Case C-380/03 Tobacco Advertising [2006] ECR I-11573

Commission Proposal for a Directive on actions for damages revealed – tout pour le peuple, rien par le peuple?*

Jose Manuel Panero Rivas

MA and PGD in Economics for Competition Law, King’s College London; LL.M in European Law, College of Europe

 

On 11 June 2013, the Commission issued its much expected[1] Proposal for a Directive concerning damages claims by victims of antitrust violations (‘the Proposal’).[2] This post aims to examine what the Commission has finally done in an area in which it has never felt too comfortable. The obvious reason for this is that, contrary to what happens with the vast majority of its legislative proposals, depending on its content the Directive could have a potentially detrimental impact on the crown jewel: public enforcement by the Commission of EU competition Rules.[3]

This is a controverted area of EU competition law. Therefore, rather than aseptically describe what the content of the Proposal is, this post rather begins with an explanation of several elements the Commission considered when drafting the Proposal. This will be followed by a description of the solution retained by this institution.

A final word of caution in this introduction: this is a long-waited and matured legislative proposal. However, it is still for the Council and the Parliament to intervene in the legislative procedure. At this stage it is still unclear if amendments will be introduced by any of the two institutions. Nevertheless, what is already known is that some Member States have distinguished themselves by putting spokes in the wheels of this project, in a perceived defence of ‘their’ large corporations potentially exposed to this kind of actions – although one may think they should also consider the interests of, at least domestic, consumers.

 

(i)                 Some background elements for understanding the Proposal

It is worth recalling that the right of compensation for parties suffering the consequences of infringements of EU competition rules is well established in the case law of the Court of Justice of the European Union (‘CJEU’).[4] Nevertheless, absent any EU rule governing this type of actions, it has been for the legal systems of the Member States to lay down detailed rules governing these claims. The limits of this autonomy were identified by the Court when proclaiming the principle of effectiveness (the national rules should not make the exercise of the rights excessively difficult or practically impossible) and the principle of equivalence (the rules may not be less favourable than those governing damages actions for breaches of similar rights conferred by domestic law).[5]

However, the Commission has always been reluctant to introduce US-type actions for damages in the toolbox of competition law enforcement mechanisms.[6] It is no secret that the star tool for the Commission with regard to its fight against cartels is its leniency programme. However, the incentives for an undertaking to apply for leniency (thereby escaping without a fine a prisoner’s dilemma-type situation) could be drastically reduced if the applicant could be subject to follow-on actions for damages by affected.[7] This incentive could be further reduced if the documents which the leniency applicant provided to the Commission could subsequently be requested by a national court, as is now permitted in accordance with the Pfleiderer case law,[8] in order to prove the existence of an infringement. In other words: one might expect that if actions for damages were to be made available to affected parties by a participant in a cartel which applies for leniency – as the principle of compensation of the harm suffered would require – then less applications for leniency would be made. Also companies would perceive less pressure to apply for leniency as they might consider that other undertakings would also be less likely to reveal the existence of the practice.

Determining what the actual damage suffered by a customer of those practices infringing antitrust rules is another essential element of actions for damages, but it is not an easy task.[9] One reason for that is that some of the overcharges incurred could have been passed on to final consumers or other downstream actors in the supply chain. However, it is not uncommon that those indirect purchasers could face procedural hurdles for claiming compensation from the damage they actually suffered. It is also worth noting that the actual damage for some types of antitrust infringements are far from being evident, consider for instance certain infringements of Article 102 TFEU or even infringements of Article 101 TFEU which, despite being classified as infringements “by object”, do not have an actual impact on prices or output.[10]

 

(ii)               Main elements of the Proposal

Bearing in mind the above, the Commission issued its Proposal, which contains the following key elements:

  1. It contains the principle of full compensation. In Article 2, the Proposal states that ‘full compensation shall place anyone who has suffered harm in the position in which that person would have been, had the infringement not been committed. It shall therefore include compensation for actual loss and for loss of profit, and payment of interest from the time the harm occurred until the compensation in respect of that has actually been paid’.
  2. In Article 5, the Proposal establishes the rules on disclosure of evidence, which should allow affected parties to obtain the necessary evidence for presenting their case to a court when the claimant presents reasonably available facts and evidence showing plausible grounds for suspecting it has suffered harm from an infringement of antitrust rules. However, Article 6 offers absolute protection to leniency and settlement applications (for both leniency corporate statements and settlement submissions), also limiting access to other kind of documents needed for the purposes of public enforcement of competition rules.
  3. In Article 11, the Proposal establishes the joint and several liability of participants in collective infringements of competition rules (typically cartels). However, this Article makes an exception for leniency applicants having received immunity, which could only be forced to compensate damages caused by other participants in the infringement after the injured parties have shown they are unable to obtain full compensation from the other undertakings involved in the prohibited practice.
  4. The Proposal expressly recognises the possibility for infringing undertakings to invoke a passing-on defence (Article 12.1 of the Proposal) except in those cases in which it is legally impossible for indirect purchasers to claim compensation for their harm (Article 12.2 of the Proposal). However, this also establishes that indirect affected parties (those suffering harm because of the passing-on of the extra costs) should have at their disposal effective mechanisms of redress (Article 13 of the Proposal).
  5. On quantification of harm, Article 16 establishes the rebuttable presumption that, in case of cartel infringements, it shall be presumed that the infringement caused harm.

 

(iii)             A foreseeable long and winding road until its adoption

The Proposal is now in the hands of the Parliament and the Council. Although the Proposal is a mature piece of legislation, the first reactions of these two institutions suggest that the Proposal is not likely to remain untouched in its final wording and that it will face a rocky ride in the course of the ordinary legislative procedure.

First reactions from various different actors within the Parliament suggest inter alia that (i) collective redress mechanisms should be part of the proposal; (ii) there should be changes in the rules concerning discovery of evidence (with contradictory views with regards to the direction in which the change should go); and (iii) limitation periods – five years in the wording of the Proposal – should be shortened. However, the final vote on the issue is scheduled for 5 December 2013.[11]

At its turn, the Council seems to seek a tightened of disclosure rules, and also a shortening of the limitation period (to three years). It also seems to water down the possible fines a national court could impose to defendants in case they refuse to comply with disclosure orders or destroy evidence (provided by Article 8 of the Proposal).[12]

Apparently, the Council is even contesting the legal basis used by the Commission. The Proposal has used a dual legal basis, namely Articles 103 and 114 TFEU. However, it seems that the Council – against the opinion of the Commission – is trying to avoid the use of Article 114 TFEU. In practical terms, this would mean depriving the Parliament from exercising effective legislative powers with regards to the Proposal.[13]

 

(iv)              Conclusion

The Proposal shows a complex equilibrium. The Commission has tried to genuinely foster actions for damages in the antitrust field while at the same time avoiding undermining a key element of its public enforcement of antitrust rules as is its successful leniency policy.

It is not for this post to determine if the Commission has been too zealous in its protection of public enforcement of competition rules or not.  It is neither for this author to consider if, given the direct impact of the issue on a key competence of the Commission, this institution is the most appropriate actor to issue the Proposal (although, in any event, no other possible actor could have started the legislative procedure). However, the first reactions from the Council seem to point out that Member States would like an even less litigation-friendly environment than the one envisaged by the Proposal. At its turn, voices in the Parliament are claiming for the introduction of collective redress mechanisms. It is worth recalling that the Proposal enters into a field (actions for damages) in which there are significant divergences between Member States. It is possible that its content (for instance with regard to joint and several liability or passing-on defence) could potentially shock well-established principles of civil or commercial statutes or judicial practices in certain Member States.

The final Directive would be a major piece of legislation for EU antitrust policy. Because of the compensation to be awarded under it, it is also of vital importance for undertakings and consumers. Finally this is likely to have an impact on general EU law concerning judicial procedures in Member States. Time will tell what the final result is and if the Directive has the ability to close the gap between antitrust and civil and commercial law rules in several Member States, which may have the impression that competition rules are from Venus while tort liability is from Mars.

 

*’Everything for the people, nothing by the people’. As the learned readers of this blog know, this motto corresponds to the age of Enlightened absolutism having been attributed to some of the European kings of the 18th century.

[1] Precedent works from the Commission in the field include (1) the European Commission, White Paper on Damages Actions for Breach of the EC Antitrust Rules, COM (2008) 165; and (2) the Commission Staff Working Paper Accompanying the White Paper on Damages Actions for Breach of the EC Antitrust Rules, SEC (2008) 404.

[2] Proposal for a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, COM(2013) 404, 11.6.2013. But the Proposal does not come alone. The documents issued by the Commission on 11 June 2013 are the following: (i) Proposal for a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, COM(2013) 404, 11.6.2013 (‘the Proposal’); (ii) Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union, C(2013) 3440, 11.6.2013 (‘the Communication’); (iii) Commission Staff Working Document – Practical Guide on Quantifying Harm in Actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union, SWD(2013) 205, 11.6.2013 (‘the SWD’); (iv) the Impact Assessment Report, SWD(2013) 203 final, 11.6.2013 (the ‘RIA’); (v) Executive Summary of the Impact Assessment Report, SWD(2013) 204 final, 11.6.2013; (vi) a Frequently Asked Questions document; and (vii) a Citizens summary.

[3]  See W.P.J.Wils, “Should Private Antitrust Enforcement be Encouraged?” in W.P.J. Wils, Principles of European Antitrust Enforcement, 2005 pp.111-127.

[4] See Case C-453/99 Courage and Crehan [2001] ECR I-6297; Joined Cases C-295 to298/04 Manfredi [2006] ECR I-6619; and Case C-360/09 Pfleiderer [2011] ECR I-5161.

[5] See Case C-453/99 Courage and Crehan [2001] ECR I-6297; and Joined Cases C-295 to 298/04 Manfredi [2006] ECR I-6619.

[6] Section 4 of the Clayton Act empowers private parties injured by violations of the Act to sue for treble  damages. For a comparison of several aspects of both systems (including the role played in the US by actions for damages and the interface between the different tools) see J. Panero Rivas Criminalisation of EU Competition Law enforcement: the long and winding road in Derecho de la Competencia Europeo y Español, vol  Dykinson Vol XI, 2013, pp. 139-185.

[7] Nonetheless, it is worth noting that those parties, independently from subsequent decisions of the participant in the cartel, have effectively suffered the harm.

[8] Case C-360/09 Pleiderer [2011] ECR I-5161. In that case, the CJEU stated that, in absence of EU Law, it is for the national court to decide on the basis of national law and on a case-by-case basis whether to allow the disclosure of documents, including leniency documents.

[9] On that issue see S. Bishop and M. Walker, The Economics of EC Competition Law: Concepts, Application and Measurement, Sweet & Maxwell, 2010, pp. 699 to 721.

[10] A good example could be information sharing practices that are traditionally considered infringements of Article 101 TFEU by object but whose impact on prices in not evident.

[11] MLex Lawmakers face scrap over ‘group claims’ in damages law, 17 October 2013.

[12] MLex EU States may seek tighter disclosure rules in draft damages law. 10 October 2013. For the initial position of the different Member States see MLex EU Governments size up draft damages claims-law, 3 September 2013.

[13] MLex Legal advice casts doubt on EU damage-claim law, 31 October 2013.