On the third day of Christmas my true love gave to me...national implementation of the Damages Directive?
The deadline for implementation into national law of Directive 2014/104/EU (the Damages Directive) is 27 December 2016. Despite the fast-approaching deadline for transposition, it appears that so far only Latvia has actually adopted any legislation to implement the Directive.
Although little national law has yet been implemented, a number of legislative proposals have been laid before national lawmakers in other Member States, for example: Germany (already a preferred jurisdiction for claims) published a draft law in July 2016, the Netherlands put forward a legislative proposal in June 2016 and Italy adopted a draft decree in October 2016.
In terms of the UK, the Department for Business, Innovation and Skills (as was), launched a consultation in January 2016 on the implementation into national law. That consultation closed in March and no outcome from the feedback has yet been published. The consultation envisaged transposition by the deadline, however, it may not have envisaged the result of the June referendum. Of course, the result of that advisory referendum does not obviate the need to implement EU law, but it may go some way to explain why little progress can be seen to have been made on this issue.
The UK's damages regime is already well-developed and further enhancements were brought in via the Consumer Rights Act (which came into force on 1 October 2015, after the Directive had come into force). However, the maturity of the UK's regime arguably makes implementation more difficult. The Government acknowledges in its consultation that the usual approach, which is to copy out the Directive as far as possible, would "result in a two-tier system – with one procedure for cases involving EU competition law and one for cases brought under solely UK competition law". The Government accordingly proposed a single system regardless of which set of laws applied – a system that would minimise uncertainty but which does not make transposition easy.
In light of the referendum result and the UK's comprehensive regime for private damages actions, it remains to be seen whether action would be taken by the Commission to initiate infringement proceedings should implementation not occur in the UK.
So, although the Damages Directive seeks to introduce an element of harmony into the mechanisms for redress for breaches of competition law across the European Union, absent a last minute flurry of activity, it may be a silent night in the European Union for the Damages Directive.