Implementation of the Antitrust Damages Directive in the UK : limited reform of the limitation rules

Rodger, Barry J (2017) Implementation of the Antitrust Damages Directive in the UK : limited reform of the limitation rules. European Competition Law Review, 38 (5). pp. 219-227. ISSN 0144-3054

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This article will examine the implementation of the Antitrust Damages Directive in the UK, focusing on one central aspect, namely the reforms introduced to the rules on limitation (and prescription) of actions in a competition law litigation context. There has been considerable academic and practitioner literature about private enforcement of EU and domestic competition law in the last twenty years. Competition litigation has developed as a complement to public enforcement of competition law and to ensure that rights infringed by competition law breaches are compensated. The article will outline briefly the development of the laws, rights, procedures and mechanisms introduced through UK and EU law to facilitate private enforcement of competition law in the UK. There has been considerable domestic statutory development of the private enforcement architecture in the UK since the passing of the Competition Act 1998 and this has been supplemented at the EU level, in particular most recently by the adoption of the Antitrust Damages Directive. The Directive was finally introduced in 2014 after more than a decade of policy discussion at the EU level. The Directive seeks generally to introduce a set of provisions to establish a minimum level playing field of procedural and substantive laws to facilitate the recovery of compensation in relation to EU competition law infringements across the EU Member States courts. This article will outline generally the process of implementation of the Directive in the UK. A notable issue is the decision to apply the provisions of the implementing measures to actions involving both infringements of EU law and domestic competition law, despite the more limited EU law scope of the Directive itself. The article will focus on the limitation provisions in the Directive, given the centrality of limitation in the history of competition litigation in the UK, and the potential significance of the revisions to those rules which will be applicable in both an EU and domestic law context. The Directive implementation process in the UK demonstrates this polarisation both generally and specifically in relation to aspects of the revised limitation rules. Accordingly, after discussing the background to development of private competition law enforcement in the UK, the article will consider the interpretation and application of the limitation provisions in the domestic case-law over the last fifteen years. As will be noted, this has been an issue which has dominated the case-law particularly of the specialist Competition Appeal Tribunal. The article will then consider the impact of EU law and focus on the limitation provisions in the Directive and their implementation in the UK, assessing the potential impact on domestic court application of a key issue in competition litigation practice, namely the date the limitation period starts running.