EU Competition Law in the Aftermath of Directive 2014/14 and Its Implementation in the Republic of Croatia
01 Jan 2018-pp 115-131
TL;DR: In this paper, the authors provide insight into the Croatian rules on the damages claims, especially in light of the new Croatian Act on Actions for Damages for Infringements of Competition Law.
Abstract: The Directive on certain rules governing actions for damages under national law for infringements of Competition Law provisions of the Member States is the first Directive enacted in the field of Competition Law private enforcement. The Directive was passed on 26 November 2014, while the Member States were required to enforce laws, regulations and administrative provisions necessary to comply with the Directive by 27 December 2016. Although private enforcement is distinguished from public enforcement, they interact in many ways. The perception is however that private enforcement of Competition Law is underdeveloped, uncertain and ineffective. The purpose of this chapter is to provide insight into the Croatian rules on the damages claims, especially in light of the new Croatian Act on Actions for Damages for Infringements of Competition Law. The Act contains both substantive and procedural rules governing actions for damages for infringements of the Competition Law provisions. The chapter analyses the new rules on the damages actions and outlines the main provisions of the Act in juxtaposition to the Directive. Special emphasis is put on the substantive and procedural novelties that diverge from the present regulation.
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01 Jan 2012
Abstract: Ever since the Croatian Competition Agency started functioning in 1997, public enforcement of competition law has been the norm. Civil actions for breaches of competition law have been the exception in Croatia. The existing legislation in the area of competition law makes no effort to incentivise private enforcement. There are no specific rules in the Competition Act 2009 dedicated to civil actions, except a single provision that assigns jurisdiction over damages claims to commercial courts. General tort law is applicable in order to prove damages. A number of issues arise here mostly due to the complexity of competition cases. These issues were described in the European Commission’s White Paper on Damages Actions for Breach of EC Antitrust Rules (2008). The level of uncertainty as regards the outcome of the claim is high. It seems that special rules need to be adopted in Croatia in order to improve the position of the injured side. The paper deals with a number of procedural and substantive law issues relevant to the facilitation of civil proceedings for antitrust damages. A domestic law perspective is applied taking into account recent developments in EU competition law and policy.
1 citations
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TL;DR: In this article, the European Commission's proposed Directive on future rules concerning actions for damages for competition law infringements under national law is reviewed and it is argued that the proposal underestimates the importance of loss of profits induced by increased prices.
Abstract: This paper critically reviews the European Commission’s proposed Directive on future rules concerning actions for damages for competition law infringements under national law. It is argued that the proposal underestimates the importance of loss of profits induced by increased prices and does little in ensuring that such effects will receive an equal treatment to price effects in damages claims. The paper suggests that the importance of such effects could have been emphasized by introducing a rebuttable presumption on lucrum cessans based on pass-on considerations – paralleling the presumption on overcharge. Furthermore, the decision to leave questions of causality to national tort laws is criticized as a harmonized regulation of claims based on the merits of the evidence presented would have been a superior tool, in line with a more economic approach and better suited for achieving the goal of compensation for any victim due to its intrinsic flexibility. Finally the notion that legally relevant damage only accrue within a vertical value chain is challenged.
26 citations
TL;DR: In this paper, the authors explore the role of the concept of causation in claims for damages for infringement of EU competition law and the different approaches taken by the legal systems of EU Member States in conceptualizing the inquiry of a causal link.
Abstract: In a tort law regime established on the basis of corrective justice considerations, causation requirements will tend to play a predominant role in regulating the damages claims brought forward. The requirement of the causal link between the harm suffered and the anticompetitive conduct in damages claims for infringement of EU competition law has nevertheless received remarkably little attention in the recently adopted EU Damages Directive and in academic literature. The Damages Directive and some recent case law of the Court of Justice of the EU proceed to some limited harmonization of evidential presumptions and procedural requirements, as well as the exclusion of national rules that may deny the right of the parties harmed by the competition law infringement to receive compensation. Yet, the contours of the requirement of causal link are left to the interpretative work of national courts, in view of their respective tort law doctrines on causation and the lack of a proper EU tort law. The study first explores the role of the concept of causation in claims for damages for infringement of EU competition law and the different approaches taken by the legal systems of EU Member States in conceptualizing the inquiry of a causal link. It then focuses on the methods used by the tort law systems of the EU Member States, the recent Damages Directive and the case law of the EU Court to engage with situations of causal uncertainty, which may frequently arise in the context of competition law actions for damages, in view of the complexity of the commercial environment and the multiple factors influencing markets.
16 citations
TL;DR: In this paper, the European Commission's proposed Directive on future rules concerning actions for damages for competition law infringements under national law is reviewed and it is argued that the proposal underestimates the importance of loss of profits induced by increased prices.
Abstract: This paper critically reviews the European Commissions proposed Directive on future rules concerning actions for damages for competition law infringements under national law. It is argued that the proposal underestimates the importance of loss of profits induced by increased prices and does little in ensuring that such effects will receive an equal treatment to price effects in damage claims. The paper suggests that the importance of such effects could have been emphasized by introducing a rebuttable presumption on lucrum cessans based on pass-on considerations paralleling the presumption on overcharge. Furthermore, the decision to leave questions of causality to national tort laws is criticized as a harmonized regulation of claims based on the merits of the evidence presented would have been a superior tool, in line with a more economic approach and better suited for achieving the goal of compensation for any victim due to its intrinsic flexibility. Finally the notion that legally relevant damages only accrue within a vertical value chain is challenged.
15 citations
01 Jan 2015
TL;DR: In this paper, the authors analyzed access to documents in cartel-based damages cases from the EU and Croatian perspective, focusing on the expected impact of the newly enacted Damages Directive.
Abstract: The paper analyses access to documents in cartel- based damages cases from the EU and Croatian perspective. It considers all relevant EU and Croatian legislation and case-law primarily focusing on the expected impact of the newly enacted Damages Directive. It is argued that the new rules on access to documents provided by the Directive will not necessarily have a significant impact on damages proceedings following cartel decisions issued by the Commission. This is due to the introduction of an absolute ban on the disclosure of leniency statements and settlement submissions via a ‘maximum harmonization’ rule. This conclusion is drawn from statistic figures showing that EU cartel enforcement rests solely on the leniency and settlement procedures. With that in mind, it is concluded that the Directive’s general, permissive rules on access to documents (other than leniency and settlement procedures) will not be applicable in most damages cases following the cartel infringement decision issued by the Commission. However, it is also observed that the Damages Directive’s new rules on access to documents may have the opposite impact on private enforcement in cases following infringement decisions issued by National Competition Authorities (NCAs) which do not rely as much on leniency in their fight against cartels as the Commission. The Directive’s general rule on access to documents will apply in urisdictions such as Croatia, where all of its cartel decisions so far have been reached within the regular procedure. It is argued that the general access rule, coupled with other rules strengthening the position of claimants in antitrust damages proceedings, might actually be beneficial for both public and private enforcement in such jurisdictions.
4 citations