Showing papers by "Francisco Marcos published in 2018"

Transposition of the Antitrust Damages Directive Into Spanish Law

Abstract: This paper analyses the legal measures adopted to implement Directive 2014/104/EU into Spanish law. After briefly looking at the context of private enforcement of competition law in Spain, it examines the process followed for the transposition and the issues discussed before the adoption of the Transposition Decree in May 2017. Overall, it can be affirmed that the new rules comply with the mandates of the Directive, only in a few matters there seems that there will be doubts concerning the interpretation of the new provisions. Some of the doubts may be rooted in the Directive itself (relative responsibility of co-infringers, umbrella claimants, harm to suppliers), and others in the lack of express rules in the Transposition Decree on some matters (causation, fault requirement, interests calculation), moreover it is uncertain how the new procedural tools will play out in practice as they imply a revolutionary change in our procedural rules.

Promotion and Harmonization of Antitrust Damages Claims by Directive EU/2014/104?

Abstract: Directive EU/2014/104 is the latest legal instrument that crystalizes the evolution of EU competition law enforcement. This paper assesses critically the features of the Directive and the challenges it poses for its implementation by Member States. The Directive codifies the case law of the EUCJ and it encroaches upon the autonomy of Member States in setting the institutions, remedies and procedures available for victims’ of antitrust infringements. Although the Directive provides a fragmented and incomplete set of rules that only partially harmonizes antitrust damages claims in the EU, and it’s slanted towards follow-on cartel damages claims, it has publicised the availability of damages claims, creating momentum that will transform how competition law is enforced in the future.

Innovation by dominant firms in the market: damned if you don’t … but damned if you do?

Abstract: Innovation is key for dynamic efficiency and one of the best recipes to increase long-term businesses’ profits and, at the same time, enhance consumer welfare. Modern high-technology markets offer a perfect account of the importance of innovation for business success: either firms keep apace innovating, or rivals will overcome them and they will be left aside by consumers. History shows many examples of firms that have failed to sustain the innovation game and have faded away. At the same time it also demonstrates how many successful businesses have gained a powerful position in the market in a very short period of time by offering good innovative products or services to consumers at competitive prices. Nevertheless, by being successful, firms sometimes have attained a dominant position in the market and that may have meaningful implications from the perspective of antitrust or competition law. In that situation, the experience in many countries shows that innovation decisions by dominant market players can be second-guessed by competition authorities in search for anticompetitive behavior. This paper will assess the limits and dangers competition law enforcers face in their investigations and sanctioning antitrust proceedings in the assessment of anticompetitive unilateral conduct by innovating firms.

The EU Antitrust Damages Directive : Transposition in the Member States

Abstract: This Book makes a significant and original contribution to the literature on the developing area of private enforcement of EU competition law. It delivers a significant, rigorous and comprehensive analysis of the transposition across a broad selection of MS (MS) of a major EU Directive introduced with the aim of harmonising and facilitation competition law damages actions across the European Union. This book seeks to review and analyse the implementation of the Antitrust Damages Directive across a selected number of EU MS. It aims at analysing the transposition of the Directive into national law firstly from a generic EU law implementation perspective, considering MS processes followed in implementing this EU Directive- ‘the Antitrust Damages Directive’. The book also looks more specifically at the national debates and their consequences for the substantive choices adopted in terms of implementation of the various Directive provisions.