Private damages in EU competition law and arbitration: a changing landscape

TLDR: In this paper, the authors discuss the potential impact of the EU Directive on the use of arbitration to obtain private damages within the EU and conclude on the potential for arbitration in this area in the future and whether the Directive is likely to have much of an impact in this regard.

Abstract: There are various obstacles within the EU Member States, which currently prevent, to a greater or lesser extent, the possibility to successfully obtain damages for harm caused by an infringement of the EU competition rules. On 26 November 2014, an EU Directive on antitrust damages actions was adopted. This sets out some minimum ground rules in order to level the playing field across the Member States with a view to making it easier to actually pursue such actions and claims successfully. On a broader level, the Directive has incorporated specific provisions to promote the effective use of consensual dispute resolution as an alternative route to enabling the victims of EU competition law infringements to obtain compensation. This paper discusses the provisions of the Directive, in terms of its potential impact on the use of arbitration to obtain private damages within the EU. It outlines and analyses the existing legislative framework in relation to the public and private enforcement of EU competition law within the EU, the possibility to arbitrate EU competition law infringements and arbitration of EU competition law in practice. It then outlines and discusses both the provisions of the Directive in relation to consensual dispute resolution and some of its most relevant and noteworthy other provisions, in particular with regard to their potential impact on the arbitration of cases involving EU competition law infringements. Finally, the paper concludes on the potential for arbitration in this area in the future and whether the Directive is likely to have much of an impact in this regard. Directive 2014/104/EU on antitrust damages actions (2014) Council Regulation (EC) 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (2004) Case 102/81 Nordsee v Reederei Mond , European Court of Justice (1982) Case C-88/91 Federconsorzi , European Court of Justice (1992) Cases C-430/93 and C-431/93 Van Schijndel and van Veen v Stichting Pensioenfonds voor Fysiotherapeuten , European Court of Justice (1995) Case C-126/97 Eco Swiss China Time Ltd v Benetton International NV , European Court of Justice (1999) Mitsubishi Motors Corporation v Soler Chrysler Plymouth Inc , US Supreme Court (1985)