Competition law damages actions are often characterized by the uncertainty of the causal connection between the infringement and the harm. The damage consists in a pure economic loss flowing from an anticompetitive conduct. In such cases, the complexity of the markets structures, combined with the interdependence of individuals' assets, fuel this causal uncertainty. In this work, Claudio Lombardi elucidates the concept of causation in competition law damages actions and outlines its practical implications in competition litigation through the comparative analysis of the relevant statutory and case law, primarily in the European Union. This book should be read by practitioners, scholars, and graduate students with experience in competition law, as well as those interested in analyzing economic torts and causation in general.

Causation in Competition Law Damages Actions

This article scrutinizes the last ten years of the academic debate on EU citizenship law taking nine fundamental disagreements among scholars as starting points. It explores EU citizenship's relationship with three groups of issues of fundamental importance, including the place of this concept within the fabric of EU law, the influence of this concept on the essence of the Union as a system of multi-level governance, and its impact on the lives of ordinary Europeans. A large number of key works which influenced the Court and the legislator in the recent years is assessed to outline the likely direction of future research, as well as EU citizenship's future development. Although the literature on the subject is overwhelmingly rich and diverse, this article aspires to provide a representative sample of issues of interest for the framing of the concept at issue from a supranational perspective, necessarily leaving national literatures aside.

The Essence of European Citizenship Emerging from the Last Ten Years of Academic Debate : Beyond the Cherry Blossoms and the Moon?

https://www.zora.uzh.ch/id/eprint/168189/9/Just_2018_Governing_online_platforms_accepted_manuscript.pdf

Governing online platforms: Competition policy in times of platformization

espanolTras mas de medio siglo de aplicacion eminentemente publica del Derecho de la Com­petencia, estamos asistiendo a un impulso de la aplicacion privada, que permite a los perjudicados por conductas anticompetitivas reclamar danos y perjuicios ante los tribunales civiles. Tanto la Directiva 2014/104/CE como su transposicion en Espana por el RD Ley 9/2017 significan grandes avances en este ambito. El objeto del presente trabajo es el analisis y valoracion critica de los primeros pronuncia­mientos judiciales que han tenido lugar resolviendo estas reclamaciones, derivadas principalmente de carteles (azucar, seguro decenal, sobres de papel). Se prestara especial atencion a los informes periciales de valoracion del dano, asi como la diferente eficacia de las acciones follow-on y las stand-alone EnglishAfter more than half a century of public enforcement of Competition law in the EU, we gaze at the fostering of private enforcement, which allows filling damages actions to those who have suffered the economic harm due to anticompetitive practices. Both Directive 2014/104/CE and its implementation in Spain through RD Ley 9/2017 are significant steps in this direction. The aim of this paper is the critical analysis of the first judicial pronouncements dictated when dealing with such claims, basically provoked by cartels (such as sugar, property insurance or envelopes). We examine closely the relevance in these proceedings of the economic proof, as well as the different effectiveness of follow-on and stand-alone actions.

La aplicación privada del derecho de la competencia: acciones de daños y pronunciamientos judiciales

i ACKNOWLEDGMENTS ii ABBREVIATIONS vi 1 Democratic EU: From Representation to Participation 1 1.

Participatory democracy in the European Union : a civil perspective

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.

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

This paper provides an overview of the legal status quo in the European Union relating to the binding effect, in follow-on competition law cases, of public enforcement decisions, as well as of some of the legal issues which are likely to be the subject of controversy in years to come, in this regard. It tackles decisions declaring antitrust infringements adopted by the European Commission and by national competition authorities, as well as commitment decisions and decisions declaring infringements of merger control and State aid rules. It discusses the material, subjective and temporal scope of the binding effect. It also tackles other issues, such as the obligations of national courts relating to non-infringement decisions and on-going investigations, and the issue of negative declarations. Finally, it looks into the arguments which may be put forward by litigants before national courts to avoid or circumvent the binding effect of public enforcement decisions. It is argued that the case-law already provides answers to many of the issues which are likely to be raised, which one may arrive at through a systematic and coherent interpretation of the general principles of EU Law, as clarified by the Court.

Antitrust Private Enforcement and the Binding Effect of Public Enforcement Decisions

Portugal is a small country by European standards and, with the financial and economic crisis, it has not always been in the limelight, for positive reasons, in the last years. Here is one area in which, however, this small country, with unlimited access to the gigantic ocean resources, could show the path, or at least, a possible path, to the rest of Europe. That path concerns collective redresses in damages competition proceedings. When the decision was made not to include provisions on collective redress in the EU Antitrust Damages Actions Directive, it became clear that each Member State would have to find its own way of interpreting the principle of effectiveness and its implications for actions relating to mass damages arising from antitrust infringements. And it is good that things turned out the way they did, because the approach which would have been possible at the EU level, as the Commission’s broader 2013 Recommendation shows, would have imposed conditions which might have seriously stifled the possibility of achieving full reparation of damages to consumers through collective enforcement. The choice for the optin system, in particular, would inevitably mean that a great number of consumers would not be represented, favouring the non-reparation of damages to those who are least informed, more prone to inertia and more in need of protection. While research seems to growingly point to the economic and sociopolitical justification of opt-out mechanisms, as long as certain safeguards are in place, very few Member States have as yet made this option. Examples that stand out, in varying degrees, are the Netherlands, Portugal and, more recently, the UK, and Belgium. On the whole, however, it seems fair to say that the laws of the Member States have not yet made it possible for companies to be ordered to fully compensate consumers for the damages caused by anticompetitive practices. Despite the many decisions taken by the European Commission and the NCAs which could have led to follow-on consumer redress, there are very few cases in the EU as a whole which can be pointed to as examples thereof. Two successful cases related to a very limited number of injured parties—the Austrian driving schools cartel case (District Court of Graz, file no. 4 C 463/06 h) and the UK’s JJB Sport case (CAT, case no. 1078/7/9/07), the latter concluded with a settlement. More often, attempts at such actions are wholly unsuccessful, usually not passing the stage of admissibility—such as the French mobile telephony case (Paris Commercial Court, 6 December 2007, UFC Que Choisir v Bouygues Telecom), the Spanish Telefonica case (Madrid Commercial Court No. 4, 7 November 2012, Ausbanc v Telefonica) or the Italian Microsoft case (Milan Tribunal, 20 December 2010, upheld by Milan Court of Appeals, 3 May 2011). This may change. On 12 March 2015, the Portuguese Competition Observatory, a non-profit association of academics from a number of Universities, filed a mass damages claim against Sport TV, which until recently held the monopoly in the provision of paid premium sports channels in Portugal (Lisbon Judicial Court, case no. 7074/15.8T8LSB). The action seeks to compensate over 600,000 clients for damages allegedly resulting from a number of anticompetitive practices, but also to compensate those who were excluded from the benefit of these channels due to the inflation of prices and all Portuguese pay-tv subscribers, between 2005 and June 2013 (over 3 million at the end of the period), who suffered from a reduction of competition on this market as a result of increased transparency and reduced incentive to competition arising from the practices of the company jointly controlled by the pay-tv market leader. Partly following an abuse of dominance decision by the Portuguese Competition Authority, confirmed by the courts, the action can lead to reparations in the tens of millions. In that case, the claim was made possible by the Portuguese (1995) actio popularis law, in which standing is given to any injured consumer or consumer association, with little in the way of certification and no financial resources requirements, very limited court fees and safeguards set up primarily through the vigilance of the Court and the Public Prosecutor. Beyond attracting claimants to Portugal, that claim may turn into a case-study for the EU as a whole. For

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Collective Redress: Will Portugal Show the Way?

This paper tackles some of the practical concerns arising from the adoption of Commitment Decisions by the European Commission, under Reg. 1/2003, namely impact on private litigation and articulation with National Competition Authorities. It hopes to build on some of the opinions expressed by John Temple Lang in the ground breaking paper on this subject, in 2003.

Committing to Commitment Decisions – Unanswered Questions on Article 9 Decisions

In 1920, Hans Kelsen oversaw the introduction into the Austrian Constitution of a new instrument of participatory democracy in Comparative Constitutional Law.3 It would be known as popular legislative initiative (PLI). Although technically it seemed more like an evolution of the right of petition, in practice it was spun from a compromise between a call for direct democracy and a conservative approach to representative democracy.4 Because its structure is so similar to other instruments which, quite diff erently, lead to a direct consultation of the people, and because its German name was the same as had been given to a direct democracy instrument (‘popular initiative’) in the 1919 Weimar Constitution (Volksbegehren), ‘popular legislative initiative’ (PLI) was from the beginning, wrapped in misconceptions and misunderstandings, leading still today to suspicion by some, and overestimation by others.

Miguel Sousa Ferro

Papers

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

Antitrust Private Enforcement and the Binding Effect of Public Enforcement Decisions

Collective Redress: Will Portugal Show the Way?

Committing to Commitment Decisions – Unanswered Questions on Article 9 Decisions

Popular Legislative Initiative in the EU: Alea Iacta Est