Antitrust Private Enforcement and the Binding Effect of Public Enforcement Decisions
TL;DR: In this paper, 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 some of the legal issues which are likely to be the subject of controversy in years to come, are discussed.
Abstract: 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.
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TL;DR: In this article, the authors examined the effect of decisive influence on the notion of "undertaking" in the case of the Skanska decision of the European Court of Justice (C-724/17).
Abstract: In recent years, cartel infringements have led to fines and damage claims by injured parties running into billions. In view of that, the question of liability is of great significance. In European competition law, the undertaking is subject to both prohibitions of certain conduct (Art. 101 et seq. TFEU) as well as sanctions for infringements of these prohibitions (Art. 23 Regulation 1/2003). Art. 1 para. 1 of the Cartel Damages Directive (Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions (2014/104/EU)) also addresses the undertaking when imposing liability for damages. The Competition Appeal Tribunal ruled in its MasterCard decision that liability for damages extends to all legal entities that have exercised a decisive influence over the infringing persons, applying the notion of “undertaking” as developed by the ECJ. Furthermore, several other Member States of the European Union have endorsed group liability or at least parental liability on this basis, including France, Spain, Portugal and Austria. Recently, the European Court of Justice (ECJ) has held in its Skanska decision (C-724/17) that the notion of “undertaking” determines the persons liable, both for the purpose of imposition of fines and for the purpose of civil liability.
Hence, the decisive factor regarding liability is the notion of “undertaking”. According to settled case law of the European Court of Justice (ECJ), an undertaking encompasses every entity engaged in an economic activity, which may consist of several legally independent entities, provided that these independent entities form an economic unit. Within the scope of this economic unit, an innocent parent company is generally liable for the cartel infringements of its subsidiaries. Whether an innocent subsidiary is vice versa liable for its parent company or whether sister companies are liable for each other has not yet been examined in detail. This paper aims to close this gap – also with a view to the recent referral of this question to the ECJ (Audiencia Provincial de Barcelona, sec. 15a, order of 24 October 2019, Rollo no 775/2019 – Sumal v Mercedes Benz Trucks Espana). A close examination of the ECJ’s reasoning regarding group liability reveals that group liability under competition law, i.e. the joint liability of the parent company and its subsidiaries, derives from the unity of action of the undertaking (‘joint action triggers joint liability’). In this respect, the existence of a decisive influence is not relevant; the criterion of decisive influence merely serves to determine whether there is an economic unit. If there is an economic unit, this leads to joint liability amongst all the constituent entities of this economic unit. As a result, an innocent subsidiary is also liable for the parent company or sister companies if they belong to the same economic unit.
4 citations
01 Jan 2011
2 citations
Journal Article•
2 citations
Book•
03 Jul 2014
TL;DR: In this paper, the authors analyse and understand the applications of the policy suggestions and contribute to the research on encouragement of private antitrust enforcement within the EU by taking into account the private law aspects of antitrust damage actions in England and Slovenia and carrying out an in-depth examination of the existing legal structure under which antitrust damage action can be brought.
Abstract: In the last two decades there has been an increasing interest from policy makers in encouraging private enforcement of antitrust law within the EU. According to the EU Commission, a better system of antitrust damages actions would not only be beneficial for potential claimants, but would also lead to a higher level of compliance with the competition rules. To enhance the effectiveness of the right of the victims to damages, the EU Commission presented, first in the Green Paper and later in the White Paper, a number of policy suggestions aimed at encouraging damage actions. It is expected that the introduction of these measures into the national legal systems of the Member States would reduce the differences that exist between the Member States in the sense of national rules governing actions for damages.
The thesis seeks to analyse and understand the applications of the policy suggestions and contributes to the research on encouragement of private antitrust enforcement within the EU. It provides the analysis by taking into account the private law aspects of antitrust damage actions in England and Slovenia and carrying out an in-depth examination of the existing legal structure under which antitrust damage actions can be brought. Adoption of measures aimed at enforcing antitrust provisions in national legal systems is closely linked to civil procedural or particular substantive rules of legal systems. The introduction or removal of a particular institution risks going against the core features of national private law systems. In this context it can be argued that private law can be used for effective antitrust enforcement, provided that any new measures introduced – in order to increase effectiveness of the EU competition law – respect the existing legal structure and are consistent (as far as possible) with the core features of national private law systems.
2 citations
01 Jul 2017
TL;DR: In this article, a proposta de transposição da Diretiva Private Enforcement (DPE) for ordenamento jurídico português is presented.
Abstract: SUMÁRIO: Este artigo analisa a proposta de transposição da Diretiva Private Enforcement para o ordenamento jurídico português. O escrito examina diversos aspetos do anteprojeto nacional, que passou por consulta pública, mas, sobretudo, realça os artigos sobre definições, responsabilidade, meios de prova e os potenciais impactos que a norma poderá ter na organização do sistema judicial português. Critica ainda as incoerências do anteprojeto e indica alguns aspectos problemáticos desta proposta e as alterações necessárias que devem ser feitas para tornar o diploma mais sólido. PALAVRAS-CHAVE: Diretiva Private Enforcement – direito da concorrência – ordenamento jurídico português – proposta de transposição – organização judiciária.
2 citations
References
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Book•
28 Feb 2014
TL;DR: In this article, Maier-Rigaud and Schwalbe present a legal framework for the quantification of Antitrust Damages and the underlying right to Damages.
Abstract: Contents: Foreword Introduction 1. The Legal Framework 2. The Underlying Right to Damages 3. Indirect Purchaser Standing and Passing-on 4. Proving the Infringement 5. Further Substantive and Procedural Issues 6. Collective Action 7. Private International Law Aspects 8. Quantification of Antitrust Damages by Frank Maier-Rigaud and Ulrich Schwalbe Bibliography
19 citations
TL;DR: In this article, the authors examined the effect of decisive influence on the notion of "undertaking" in the case of the Skanska decision of the European Court of Justice (C-724/17).
Abstract: In recent years, cartel infringements have led to fines and damage claims by injured parties running into billions. In view of that, the question of liability is of great significance. In European competition law, the undertaking is subject to both prohibitions of certain conduct (Art. 101 et seq. TFEU) as well as sanctions for infringements of these prohibitions (Art. 23 Regulation 1/2003). Art. 1 para. 1 of the Cartel Damages Directive (Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions (2014/104/EU)) also addresses the undertaking when imposing liability for damages. The Competition Appeal Tribunal ruled in its MasterCard decision that liability for damages extends to all legal entities that have exercised a decisive influence over the infringing persons, applying the notion of “undertaking” as developed by the ECJ. Furthermore, several other Member States of the European Union have endorsed group liability or at least parental liability on this basis, including France, Spain, Portugal and Austria. Recently, the European Court of Justice (ECJ) has held in its Skanska decision (C-724/17) that the notion of “undertaking” determines the persons liable, both for the purpose of imposition of fines and for the purpose of civil liability.
Hence, the decisive factor regarding liability is the notion of “undertaking”. According to settled case law of the European Court of Justice (ECJ), an undertaking encompasses every entity engaged in an economic activity, which may consist of several legally independent entities, provided that these independent entities form an economic unit. Within the scope of this economic unit, an innocent parent company is generally liable for the cartel infringements of its subsidiaries. Whether an innocent subsidiary is vice versa liable for its parent company or whether sister companies are liable for each other has not yet been examined in detail. This paper aims to close this gap – also with a view to the recent referral of this question to the ECJ (Audiencia Provincial de Barcelona, sec. 15a, order of 24 October 2019, Rollo no 775/2019 – Sumal v Mercedes Benz Trucks Espana). A close examination of the ECJ’s reasoning regarding group liability reveals that group liability under competition law, i.e. the joint liability of the parent company and its subsidiaries, derives from the unity of action of the undertaking (‘joint action triggers joint liability’). In this respect, the existence of a decisive influence is not relevant; the criterion of decisive influence merely serves to determine whether there is an economic unit. If there is an economic unit, this leads to joint liability amongst all the constituent entities of this economic unit. As a result, an innocent subsidiary is also liable for the parent company or sister companies if they belong to the same economic unit.
4 citations
01 Jan 2011
2 citations
Journal Article•
2 citations
Book•
03 Jul 2014
TL;DR: In this paper, the authors analyse and understand the applications of the policy suggestions and contribute to the research on encouragement of private antitrust enforcement within the EU by taking into account the private law aspects of antitrust damage actions in England and Slovenia and carrying out an in-depth examination of the existing legal structure under which antitrust damage action can be brought.
Abstract: In the last two decades there has been an increasing interest from policy makers in encouraging private enforcement of antitrust law within the EU. According to the EU Commission, a better system of antitrust damages actions would not only be beneficial for potential claimants, but would also lead to a higher level of compliance with the competition rules. To enhance the effectiveness of the right of the victims to damages, the EU Commission presented, first in the Green Paper and later in the White Paper, a number of policy suggestions aimed at encouraging damage actions. It is expected that the introduction of these measures into the national legal systems of the Member States would reduce the differences that exist between the Member States in the sense of national rules governing actions for damages.
The thesis seeks to analyse and understand the applications of the policy suggestions and contributes to the research on encouragement of private antitrust enforcement within the EU. It provides the analysis by taking into account the private law aspects of antitrust damage actions in England and Slovenia and carrying out an in-depth examination of the existing legal structure under which antitrust damage actions can be brought. Adoption of measures aimed at enforcing antitrust provisions in national legal systems is closely linked to civil procedural or particular substantive rules of legal systems. The introduction or removal of a particular institution risks going against the core features of national private law systems. In this context it can be argued that private law can be used for effective antitrust enforcement, provided that any new measures introduced – in order to increase effectiveness of the EU competition law – respect the existing legal structure and are consistent (as far as possible) with the core features of national private law systems.
2 citations