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Journal Article

Effect of Commission decisions on private antitrust litigation: Setting the story straight

01 Oct 2007-Common Market Law Review (Kluwer Law International)-Vol. 44, Iss: 5, pp 1387-1428
About: This article is published in Common Market Law Review.The article was published on 2007-10-01 and is currently open access. It has received 18 citations till now. The article focuses on the topics: Commission.
Citations
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01 Nov 2008
TL;DR: In this paper, it is shown that sanctions imposed by the Commission in competition proceedings are "criminal charges" within the meaning of Article 6 ECHR by an independent and impartial tribunal fulfilling all the conditions of article 6ECHR (part I).
Abstract: From the Introduction. This paper will thus show that, given the rapid "criminalisation" of competition law proceedings, sanctions should in principle be imposed at first instance I. Sanctions imposed by the Commission in competition proceedings are "criminal charges" within the meaning of Article 6 ECHR by an independent and impartial tribunal fulfilling all the conditions of Article 6 ECHR (part I). Or at the very least, these sanctions should be subject to full jurisdictional review by an independent and impartial tribunal in order to comply with Article 6 ECHR and to cure the defects of the administrative procedure (part II). It is doubtful however whether such a full jurisdictional review, as it is understood by the ECtHR, is available at Community-level in antitrust cases.

40 citations

Journal ArticleDOI
TL;DR: In this paper, the authors assess the features of the Directive and the challenges it poses for its implementation by Member States, and assess the impact of this Directive on the enforcement of competition law.
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.

21 citations

Dissertation
01 Oct 2012
TL;DR: In this paper, the authors argue that there should be more emphasis on horizontal relationships between courts, led by judges themselves, which would not only lend itself to coherent and effective application of competition law, but also allow courts to push back against the apparent dominance of administrative authorities in this area.
Abstract: The EU competition law reforms of 2004 decentralised enforcement from the European Commission to national competition authorities and national courts, while the European Commission remains central to the system. This thesis responds to a need for research into how institutions interact in this system of concurrent competences to effectively enforce the EU competition rules. It explores the constitutional consequences of the methods for ensuring coherent interpretation and effective application of the EU competition rules, through case studies on the interaction between courts and administrative authorities and between the supranational and national levels. With a focus on the role of courts, the thesis draws on the EU principle of institutional balance and the concept of interpretative pluralism. It finds that while apparently empowering (national) courts, the post‐2004 regime still limits the ambit of judicial competence in favour of administrative bodies. The European Commission can influence interpretation of the competition rules in national court proceedings as well as in the European Competition Network of competition authorities, in which the Court of Justice of the European Union has in effect handed over responsibility. In an extension of national courts’ obligation not to rule counter to a European Commission decision, forthcoming legislation proposes they should be bound by national competition authority decisions. The thesis argues that there should be more emphasis on horizontal relationships between courts, led by judges themselves. This would not only lend itself to coherent – and effective – application of competition law, but would allow courts to push back against the apparent dominance of administrative authorities in this area.

12 citations

Journal ArticleDOI
Hugues Parmentier1
TL;DR: In this paper, the authors considered the interaction between public and private enforcement of the competition rules, and in particular the implications for private actions of alternative enforcement procedures, i.e. leniency programs, commitments and settlement procedures.
Abstract: I took the distance learning Postgraduate Diploma and MA at King’s College London during the academic years 2007/2009. My dissertation considered the interaction between public and private enforcement of the competition rules, and in particular the implications for private actions of alternative enforcement procedures – i.e. leniency programmes, commitments and settlement procedures. In the drafting of what would become Directive 2014/104/EU on antitrust damages actions, this issue raised complex policy problems: the European Commission was, in principle, in favour of more private claims for damages, and did not want a system of settlements to render private actions more difficult. In 2009, this dissertation took part to the debate: it surveyed a range of evidential, procedural and substantive issues, and expressed opinions on how best to reconcile the settlements procedure and the position of claimants in civil litigation. In the first part, the dissertation analyses the context in which the studied interaction materializes by: underlining the main goals and characteristics of the three alternative enforcement procedures; emphasizing briefly the main goals and current issues of damages actions; presenting the key recommendations of the Commission White Paper; and assessing the tension between alternative enforcement procedures and . In the second part, the dissertation analyses and assesses the solutions offered by the Commission White Paper to find a balance between alternative enforcement procedures and private enforcement by: identifying the theoretical and practical obstacles to damages actions that alternative enforcement procedures imply; and assessing, in relation with alternative enforcement procedures, the solutions identified in the Commission White Paper. The proposed solutions were often insufficient to remove obstacles to the development of damages actions This research was presented and discussed with DG COMP and to university professors. Member States needed to implement Directive 2014/104/EU on antitrust damages actions in their legal systems by 27 December 2016. In 2017, the impact of alternative enforcement procedures on damages actions is still being discussed and I have been asked to publish this dissertation to help feeding the reflexion of competition law specialists. I would be delighted if such was the case.

6 citations

Journal ArticleDOI
01 Jan 2017
TL;DR: In this paper, 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.
Abstract: 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.

5 citations


Cites background from "Effect of Commission decisions on p..."

  • ...Taking also into account the cooperation obligation of the Commission and NCAs,14 the binding character of national decisions in follow-on litigations, as provided in Article 9(1) of the Damages Directive, is not only an essential but an appropriate consequence (see also Komninos, 2007)....

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