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Directive 2014/104/EU on antitrust damages actions (hereinafter – the Damages Directive) was signed into law on 26 November 2014. The Directive on Damages was transposed in Lithuania and Estonia. Still not transposed in Latvia. This Directive has introduced a number of measures intended to facilitate private enforcement claims in the EU Member States.

The Directive implemented many changes to the laws in the Baltics: prescription term, securing evidence, passing on of the overcharges, consensual dispute resolution. The Damages Directive obliges the Member States to ensure that the limitation period for bringing an action for damages is suspended for the duration of any consensual dispute resolution process. Moreover, the Damages Directive establishes the main principles that shall govern the effect of consensual settlements on subsequent actions for damages. The Damages Directive encourages parties to resolve their disputes negotiating and avoiding the need to go to court. Since the proposed framework for consensual dispute resolution of private enforcement disputes is quite new, many issues remain to be resolved in practice of Member States.

Currently, most of the cases in the Baltics are concerned with the abuse of dominance. Moreover, these cases mainly dealt with abuses that resulted from the application of discriminative conditions to the injured undertakings. After analyzing private enforcement cases brought in Poland, Latvia, Estonia, Slovakia and other countries it came by no surprise that most of the private enforcement cases originated from the abuse of dominance. This fact may have a number of possible explanations. First, we presume that it might be simpler to determine and to prove the abuse of dominance than anticompetitive agreement. Second, the company that suffered from the abuse of dominance might be more inclined to present a claim to the court or inform the Competition Council than the company which has participated as a counterpart in anticompetitive agreement. The Competition Council could impose a fine on both undertakings that have concluded the anticompetitive agreement. Third, if you are not a party to the anticompetitive agreement it is really difficult to collect evidence concerning such agreement. The undertaking may suffer damage because of the anticompetitive agreement but the undertaking might have no information that the anticompetitive agreement was concluded;

In most cases, in the Baltics, antitrust damage claims have been submitted as a follow-on action. This feature is common to most antitrust damage cases in Member states and can be easily explained. First, private enforcement cases are very complex and often there is a lack of evidence. Moreover, specific expert knowledge in competition law is required. The Competition Council has a lot of competition law experts and it is empowered to carry out inspections (with prior authorization of the Vilnius Regional Administrative Court) in order to collect evidence for the comprehensive investigation. Secondly, since antitrust damage cases are complex they could extend for a long time and involve huge legal costs. The investigation performed by the Competition Council would allow the claimant to save a considerable amount of costs. Third, if the undertaking may base the claim on the prior decision of the Competition Council, it is much easier to persuade the court that the claim is sound. Fourth, because of the complexity of the competition cases, the undertakings quite often might have a lot of doubts whether there was any infringement of the Competition Law. The decision of the Competition Council would eliminate any doubts concerning the breach;

Currently, in Lithuania, all the private enforcement claims are brought only by the undertakings and there are no antitrust damage claims brought by consumers. However, the Parliament of Lithuania has adopted amendment of the Code on Civil Procedure that will regulate group action. We hope that the present amendment will create a legal platform for the consumers to submit antitrust damage claims.