One of the main objectives of the so-called Damages Directive (2014/104/EU) was to make antitrust enforcement more effective. Although in most EU countries private antitrust enforcement has been possible subject to general rules of civil law; the number of private antitrust litigations has remained relatively low. It is presumed that the complementary roles of public and private enforcement, as well as the synergy between them, will take effect if formal decisions taken during public enforcement will have binding effect with regard to follow-on private litigations. According to the Damages Directive, final national decisions on competition infringements shall have binding effect in follow-on litigations. What is to be understood under ‘binding effect’, and the potential effects thereof, has been subject to a lively debate among academics and practitioners. It has been questioned if decisions of an executive body can bind the judiciary, and if so, to what extent. What is the evidentiary value of a formal decision of a NCA regarding national courts, but also on the court of another Member State. The article deals with the main issues and arguments presented in the general debate on the binding effect of national competition law decisions, and provides a closer look on this topic with regard to specific CEE countries.

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Effect of National Decisions on Actions for Competition Damages in the CEE Countries

The objective of this thesis is to examine the approach adopted by the European Commission in recently regulated energy markets. Antitrust investigations indicate that the European Commission increasingly tends to implement competition law, in particular through commitment decisions, in order to create a quasi-ex ante regulatory effect in the markets. The main conclusion of this thesis is that a lack of legal certainty and insufficient clarification of the law originating from this approach might have detrimental impacts on a single and competitive energy market design in Europe.
This thesis consists of three substantial chapters in addition to the introductory and final conclusion chapters. The first chapter analyses long-term supply contracts concluded in the wholesale markets from both an economic and a legal perspective. The economic analysis of the contracts shows that the functioning of European energy markets remains ambiguous. The European Commission thus seems to adopt a strategy to balance spot market trading with long-term supply contracts and vertical integration through antitrust investigations.
The second chapter aims at examining the tendency of European Commission to assess the foreclosure effects of a preferential use of cross-border energy transmission networks within the new liberalised energy markets. While a pro-entry bias approach of the European Commission is observed in the case law, it is difficult to find recognition by the Commission as well as secondary EU law of the likely pro-competitive effects of long-term cross-border transmission network reservations resulting from the associated long-term cross-border supply contracts. Besides, it can be observed from the case law that the European Commission and the European Courts tend to approve the preferential use of networks as long as the right holder engages in a major investment in these networks. As a consequence, the methodology adopted by the European Commission for the antitrust analyses of priority access rights to cross-border infrastructure might fail to correspond with legal predictability and economic accuracy.
The aim of the third chapter is to show the tendency of the European Commission to finalise antitrust investigations through a public settlement procedure, which seems to be a convenient tool for the facilitation of market regulation through antitrust enforcement. The increased number of commitment decisions in the energy markets raises a concern regarding the possible detrimental effects of this trend. With the consideration of the importance of legal certainty in the regulated markets in terms of market building and social welfare, the chapter proposes a hypothetical framework guideline including certain measures which may increase the efficiency and sustainability of public settlement procedures and also improve legal certainty in the energy markets.

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The Liberalisation Of European Energy Markets: The Use Of Competition Law As A Regulatory Tool

The real issue is whether the 50-year-old EU system is well equipped to run antitrust law in an environment which, now more than ever, calls for equality of arms between enforcing agencies and defendants. Stefano Grassani (Pavia e Ansaldo)

The Increasing (Ab)use of Commitments in European Antitrust Law: Stockholm Syndrome

By tipping the scale in favor of plaintiffs in private enforcement actions, Article 9 amounts to a sort of procedural A¢â‚¬A“affirmative actionA¢â‚¬Â statute: as such, it is at odds with due process. Stefano Grassani (Pavia e Ansaldo)

Stefano Grassani

Papers

The Increasing (Ab)use of Commitments in European Antitrust Law: Stockholm Syndrome

The Binding Nature of NCA Decisions in Antitrust Follow-on Litigation: Is EU Antitrust Calling For Affirmative Action?