Thanks to a vote on 27 March, on a report on the European Commission's (EC's) Green Paper on damages actions for breach of the EC antitrust rules, the European Parliament (EP) has taken a new step towards facilitating private damages actions for breach of EC antitrust rules.

Facilitating private enforcement of EC competition rules, in particular through actions for damages, serves a double purpose: it allows victims of antitrust infringements to get compensation for the loss suffered and increases the incentive for companies to comply with the law.

That double objective was recognised by the Court of Justice in 2001 in its judgment in Courage v Crehan. In that judgment, the court held that the full effectiveness of article 81 EC would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or a conduct liable to restrict or distort competition.

The EC has repeatedly stressed the importance it attaches to private enforcement of EC antitrust rules. As Commissioner Kroes said: "Businesses and consumers in Europe have a right to damages if they have lost out as a result of the anti-competitive behaviour of others. We are presenting options to help ensure that this right is a reality, and not just a theory".

The Green Paper on which the EP voted deals with, among other things, the main issues regarding effective private damages actions, such as (i) access to evidence; (ii) the need for a fault requirement; (iii) the definition of damages and their amount; and (iv) the possibility for bringing collective actions. On this last issue, the motion, proposed to Parliament, "[t]akes the view that for reasons of economy, speed and consistency, victims should be able voluntarily to bring joint actions, either directly or through organisations whose statutes have this as their object".

This idea of collective actions is not confined to EC antitrust infringement claims. Meglena Kuneva, the European Consumer Affairs Commissioner, has proposed a similar initiative that would "empower consumers to jointly pursue European-wide claims against companies that provided faulty goods or services".

Neither Kuneva or Kroes have detailed how a Europe-wide collective redress might work in practice – the issue is out for consultation – but the topic sparked fierce debate and uncertainty in the business community.

Although the Green Paper, as well as the explanatory statement to the parliamentary report, expressly distinguish the envisioned collective redress actions from the North American model of litigation, the business community clearly fears the arrival of US-type class actions, along with their perceived flaws, in the EU. This was voiced by Ernest-Antoine Seilliere, president of Business Europe, when he stated that he "strongly supported improving consumers' access to justice… but was strongly against a US-type class action because of the drawbacks of the system".

The criticism of European businesses mainly focuses on three aspects of US-type litigation: (i) the filing of claims through a class action and its opt-out system; (ii) the rules on production of evidence; and (iii) the potential for treble damages. From the perspective of the business community, these features of US litigation are not only unnecessary to the effective enforcement of EC antitrust rules but, moreover, are contrary to the essential principles of most European continental legal systems.

The proponents of US-type class action litigation will argue that the actual private enforcement rate of antitrust infringements is significantly higher in the US than it is in the EU, where it remains rare. Furthermore, according to them, the so-called drawbacks of the system are necessary features to warrant its efficiency. Only the admissibility of collective actions would allow consumers to bring a claim at reasonable expense, and the potential of treble damages should not only be seen as a deterrent towards infringers, but as a crucial incentive for private parties to initiate claims that would otherwise never be initiated due to the small amount of sustained damages. According to some US practitioners the "justice obtained through this system may not be perfect, but it is certainly better than no justice at all".

EU officials have repeatedly indicated that it was not their intention to duplicate the US-type class action litigation in Europe. They are facing a delicate balancing act between the perceived efficiency of the US system in enforcing antitrust legislation and the perceived hindrance to business that this would entail. No doubt the business community will closely scrutinise the developments on this issue.

There is also little doubt about the fact that experience gained with legal arguments developed in US collective damages actions will increasingly become relevant on the EU litigation scene. A number of US class action practices have picked up on this development and are opening offices in Europe. They seem confident about the fact that the EU institutions, in their desire to create an efficient collective redress tool for antitrust infringements, will end up devising a system very similar to the existing US model.