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Journal Article•DOI•

Promotion and Harmonization of Antitrust Damages Claims by Directive EU/2014/104?

Francisco Marcos1, Barry Rodger, Miguel Sousa Ferro2•
IE University1, University of Lisbon2
25 Aug 2018-Social Science Research Network (SSRN)-

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.

Summary (7 min read)

Jump to: [Introduction] – [1. The path to the adoption of the Directive] – [3. The Directive: legal grounds and rules.] – [3.1. Why a Directive? Legal basis.] – [3.2. Eroding and Encroaching Upon National Remedial Autonomy.] – [3.3. Content of the Directive.] – [3.3.2. Limitation periods.] – [AJ8-242-I] – [3.3.3. Quantification of Harm.] – [3.3.4. Multi-party responsibility.] – [3.3.5. Damages spread along a distribution chain.] – [3.3.6. Consensual Dispute Resolution.] – [3.3.7. Disclosure of evidence.] – [3.3.9. Binding effect of NCAs infringement decisions.] – [4. Assessment of the Directive. Scope and texture of its rules: neglected issues, limitations & inherent biases.] – [4.1. Shortcomings and neglected issues.] – [4.2. Limited treatment.] – [4.3. Inherent biases.] – [5. The implementation of the Directive.] and [Conclusions]

Introduction

  • Directive 2014/104/EU is the corollary of the EU's policy regarding the promotion and facilitation of private enforcement of competition law 1 .
  • This paper examines the contents and goals of the Directive and the specific rules adopted while also briefly analysing some of the relevant steps and features of the procedure leading to its adoption.
  • This may help to explain the options and compromises taken in the final version and its scope.
  • It is controversial and there remains uncertainty regarding how effective it might be.

1. The path to the adoption of the Directive

  • The evolution in EU competition law enforcement and policy that led to the adoption of the Directive started more than a decade ago (se Timeline below), during which several relevant milestones were reached, all pointing in the direction that some legislative action of the EU was required.
  • The Green Paper built on the evidence provided by the Ashurst report on the legal conditions for damages claims in MS (2004) 4 .
  • In 2006 the CJEU further clarified its position concerning damages claims by victims of EU competition infringements -extending their availability to indirect victims 5 .
  • Is mainly concerned with protecting the investigations of the European Commission and of the National Competition Authorities (hereinafter NCAs), by limiting access or disclosure of information included in their administrative files.
  • In combining these two contradictory goals, the Directive gives preference to public enforcement over the promotion of private claims for damages 25 , adopting a distinctive approach to that set out in the earlier EUCJ case-law 26 .

3.2. Eroding and Encroaching Upon National Remedial Autonomy.

  • The direct applicability of articles 101 and 102 of TFEU by national courts had been recognized by the EUCJ for many years 30 , and was given express legal ratification in Regulation 1/2003 (article 6) 31 .
  • A similar reasoning explains the Proposal for a Directive to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, 22 of March 2017.
  • For an overview see Asimakkis P Komminos "Effect of Commission Decisions on Private Antitrust Litigation: Setting the Story Straight" (2007) Common Market Law Review 44: 1387-1428.
  • The provisions of the Directive, together with the principle of effectiveness, embody the victims' right to seek compensation for the harm caused by competition law infringements as a way to place them in the position they would had been but for the infringement, ruling contrary to EU law any national rule that makes those claims excessively difficult or impossible.
  • Finally, although procedural law belongs largely within the domain of MS' autonomy, some of the rules of the Directive further extend the growing body of EU procedural rules that, together with the principles of effectiveness and equivalence, may further constrain national rules and proceedings 38 .

3.3. Content of the Directive.

  • Achieving 'full compensation' is the main declared aim of the Directive, repeated in several of its recitals and rules 40 .
  • Nonetheless, the Directive is silent regarding the standard of proof, fault and causation requirements 44 .
  • Moreover, the compensatory principle is further enhanced by the rebuttable presumption of harm in cartel cases.

3.3.2. Limitation periods.

  • The right to compensation for harm caused by antitrust infringements is dependent on the bringing of a claim against the infringers in due time.
  • Before the Directive, there were a variety of limitation periods for damages claims across the different MS.
  • The Directive lays down clear rules concerning both the duration and running of the limitation period.

AJ8-242-I

  • 13-06-2018 13 the conduct constituted an infringement, that it caused harm to the claimant and the identity of the infringers (article 10.2).
  • In doing so, the Directive tackles some of the potential costs, negative effects and conflicting interests raised by private litigation for the system of competition law enforcement as a whole 80 .
  • Private damages claims complement action by public authorities against anticompetitive violations, and are arguably the only way to directly compensate victims of antitrust harm.
  • The Directive now excludes this possibility, although it provides some safeguards in relation to the blanket disclosure prohibition which has to be interpreted narrowly.
  • If, as a result of its assessment, the court deems that part of that evidence is not included within those two categories 100 , it may order their disclosure at any time (pursuant article 6.9) or after the competition authority has closed its proceedings (pursuant article 6.5).

3.3.3. Quantification of Harm.

  • One of the main difficulties faced by parties injured by infringements of competition law is the quantification of the harm suffered.
  • Those rules qualify the domestic rules on quantification of harm in damages claims in force in each MS.
  • Moreover, a Communication on Quantifying harm in antitrust damages actions, 47 accompanied by a Practical Guide, 48 were adopted by the Commission when the Directive Proposal was presented, and they outline the diverse methods and techniques available to quantify harm.
  • On the other hand, in the particular case of cartel infringements, the Directive seeks to alleviate the burden of proof for claimants by the introduction of a rebuttable presumption of harm (article 17.2).
  • Nevertheless, infringers can rebut this presumption, and claimants still need to prove causality and estimate the amount of harm suffered 53 .

3.3.4. Multi-party responsibility.

  • If several parties have committed an antitrust infringement, the Directive establishes the joint and several liability of all co-infringers.
  • An exception is introduced to this rule to protect the immunity beneficiary, who will only be liable to "its direct or indirect purchasers or providers" and to the rest of the victims "only where full compensation cannot be obtained from the other undertakings that were involved in the same infringement" (article 11.4) 55 .
  • In practice, it seems likely that gathering all the information required for the exception to apply will prove an un-surmountable task for both potential claimants and defendants 59 .
  • Finally, a general contribution principle among all co-infringers is also established by the Directive.
  • As an internal liability rule among co-infringers, any co-infringer has "the right to obtain a contribution from other co-infringers if it has paid more compensation than its share" (article 11.5).

3.3.5. Damages spread along a distribution chain.

  • The Directive extends the right to compensation to "any natural or legal person who has suffered harm caused by an infringement of competition law", regardless of their position in the supply or distribution chain.
  • In drafting the rules concerning compensation of indirect victims of the infringement, MS must avoid overcompensation or infringer's absolution of liability.
  • These claims will more likely will follow-on a previous infringement decision by the European Commission or of a NCA that will make indirect victims aware of the infringement and ensuing harm they have suffered 61 .
  • 58 This exception would not be applicable where the SME was the one that led the infringement or had coerced other undertakings to participate therein or the SME had previously been found to infringe competition law (article 11.3).
  • 59 63 Nevertheless, as the passing-on refers merely to the overcharge, there will probably be part of the harm that remains with direct victims and therefore "where the passing-on resulted in reduced sales and thus harm in the Working Paper IE Law School AJ8-242-I 13-06-2018 16.

3.3.6. Consensual Dispute Resolution.

  • The Directive seeks to promote consensual resolution among infringers and victims on the basis that this will enhance successful damages claims by reducing the uncertainty of litigation and by eliminating its costs 67 .
  • 64 Likewise, following what is prescribed in article 17.1 in providing national courts the power to estimate harm when it is impossible or excessively difficult to quantify the harm, article 12.5 expressly recognizes this power in relation to harm to indirect purchasers.
  • Concerning the timing of any ensuing litigation, limitation periods for legal claims should be suspended during the negotiations (article 18.1) and courts may suspend their proceedings for up to two years if the parties enter into a consensual dispute resolution concerning the claim covered by that action for damages (article 18.2).
  • The other rule deals with consensual dispute resolution in cases of multi-party responsibility when a settlement is not reached with all the co-infringers (see supra §3.3.4).
  • Secondly, any litigation regarding the remaining claim of the settling injured party can be directed only against non-settling co-infringers and they shall not be able to recover contribution for the remaining claim from the settling co-infringer (article 19.2).

3.3.7. Disclosure of evidence.

  • The difficulties faced by antitrust victims in obtaining access to evidence of the infringing conduct and of the harm they have suffered thereby is one of the obstacles that helps to explain the limited number of antitrust damages claims brought up to date in most MS.
  • An infringement decision by the Commission or a NCA certainly helps claimants not only in being able to identify themselves as victims but also in building the follow-on claim (see infra §3.3.9).
  • Likewise, defendants may need to have access to evidence held by claimants or third parties to counter arguments of the claimants regarding the existence of infringement, the harm and its quantification or the causal link.
  • The Directive acknowledges that in some MS the existing claimant-friendly discovery procedures may allow a wider disclosure of evidence and they may continue to exist, although they will have to adequately respect the safeguards set out in the Directive (article 6.8).
  • Among the considerations that have to be taken into account by the national court in issuing the disclosure order are: (a) the available facts and evidence supporting the plea which justify the disclosure request; (b) the scope and cost of disclosure; and (c) the protection of confidential information.

3.3.9. Binding effect of NCAs infringement decisions.

  • The protection of leniency and settlement submissions is not the only issue concerning the interplay of damages claims and public enforcers dealt with by the Directive.
  • Infringement decisions by the Commission or NCAs and damages claims the Directive makes provision for follow-on claimants to be able to rely on prior infringement decision adopted by the NCAs.
  • The final rule adopted in the Directive is less ambitious than the draft provision contained in the 2013 proposal which heralded a "EU-wide binding effect" 101 , as the Directive provision only extends to decision by domestic NCAs and appeal courts 102 .
  • The Directive only requires foreign NCA decisions be deemed to be prima facie evidence of an infringement.
  • As such, the evidentiary value of those decisions is limited, as that "finding can be assessed as appropriate, along with another evidence adduced by the parties" (recital 35).

4. Assessment of the Directive. Scope and texture of its rules: neglected issues, limitations & inherent biases.

  • The Damages Directive tackles the task of positively harmonizing the rules on antitrust damages claims, but in doing so, it neglects some relevant issues that would be required for claims to be raised and for them to be successful (infra §4.1).
  • The rule that the court cannot deviate from the domestic NCA's final decision also exists in the UK (Section 58A of the Competition Act 1998).
  • Of course, given the essence of a Directive as a flexible legal instrument, and considering that some of its clauses only impose minimum harmonization 105 , the possibility exists for MS to further extend the scope of the new rules or shape them to be more comprehensive and effective 106 .

4.1. Shortcomings and neglected issues.

  • First, the Directive singles out monetary damages claims as the only type of possible private enforcement action covered by these rules.
  • The Directive does not apply to other private claims (declaratory actions, orders to cease and desist of infringement, requests for interim measures, restitution or unjust enrichment claims or claims for compensation in nature) which may be relevant in addressing the wrongs that may be provoked by antitrust infringements 107 .
  • The focus on damages claims can probably be better explained and understood by considering the Directive's slant towards cartel damages claims (infra §4.3).
  • Secondly, even within the realm of damages claims, although the Commission had noticed in the works that led to the adoption of the Directive that costs/funding of claims and collective redress were two of the challenges that should be addressed in promoting antitrust damages claims in the EU 110 , there is specific provision for neither in the Directive.
  • The Directive is silent in this regard and, in doing so, it AJ8-242-I 13-06-2018 26 neglects two crucial issues that would facilitate successful compensation (but which, at the same time, are more politically sensitive and problematic) 111 .

4.2. Limited treatment.

  • Litigation is costly and out-of-court solutions may be the best way to address damages claims by antitrust victims.
  • The Directive clearly looks at legal claims brought before national courts as the main tool through which victims' compensation is to be assured, with minimal reference to non-judicial claims and to consensual dispute resolution (see supra §3.3.6) 115 .
  • Indeed, in seeking some minimum harmonization of the rules for antitrust claims, the Directive fails to provide a comprehensive and entirely coherent framework of substantive and procedural rules that would promote compensation.
  • Concerning the distinction between substance and procedure, which will prove essential in deciding the transitory regime of the Directive (article 22), the Directive leads to unnecessary uncertainty, as the classification of rules according to this hybrid categorisation may vary from MS to MS 116 .

4.3. Inherent biases.

  • The neglected issues and the limitations discussed above are explicitly acknowledged by the Commission and the Directive itself.
  • On the other hand, those risks are greater in the case of non-cartel competition infringements, where the ambiguity of the prohibitions may, some would argue, lead to nuisance suits or erroneous damages awards.
  • All in all, in underlying its concern with the interaction of damages claims and prior actions by public enforcers (recital 6), the Directive's rules are slanted towards follow-on claims rather than stand-alone actions 124 .
  • After the Directive is implemented, there will only be partial or limited harmonization, and substantial legal differences will subsist and, therefore, forum shopping will continue 135 .

5. The implementation of the Directive.

  • MS should have implemented the Antitrust Damages Directive by 27 of December 2016 (article 21.1).
  • MS should also notify the Commission of the provisions adopted for implementation and transposition.
  • The Directive contains 24 articles and 56 recitals.
  • The quality of the Directive itself (unclear and vague in some aspects) may explain some of the problems encountered by MS in its implementation 148 , together with the conflict between certain Directive provisions and some long-standing traditions and rules of MS law 149 .
  • AJ8-242-I 13-06-2018 34 vague or require complex interpretations, doubts of the compatibility of national law with the Directive will be shifted to national courts, which will it is suggested inevitably lead to preliminary rulings being requested by those courts from the EUCJ.

Conclusions

  • This paper has looked at the Antitrust Damages Directive as the latest legal instrument that crystalizes the evolution of EU competition law enforcement.
  • Moreover, as indicated before, some of the legal solutions provided in the Directive appear too vague or too complex which will inevitably lead to interpretation problems that may negatively affect the incentives to bring damages claims or their outcome.
  • Thirdly, as has been stressed in this paper, as the Directive leaves room for the national remedial/procedural autonomy, MS' idiosyncratic rules in MS legal systems which do not contravene the principle of effectiveness will continue to exist and be applied.
  • Finally, it remains to be seen how the new rules adopted by MS in compliance with the Directive will enhance or promote damages claims and private enforcement of competition law in general.

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Electronic copy available at: https://ssrn.com/abstract=3224202
Center for European Studies/IE
Francisco Marcos, Barry J. Rodger and Miguel Sousa Ferro *
PROMOTION AND HARMONIZATION
OF ANTITRUST DAMAGES CLAIMS
BY DIRECTIVE EU/2014/104?
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.
KEYWORDS: EU competition law, private enforcement, damages
claims, harmonization, Directive.
* Draft of Chapter 2 of The EU Antitrust Damages Directive: Transposition in the Member States (Oxford
University Press, eds. B. RODGER, M.S. FERRO & F. MARCOS, due for publication in 2018).
Working Paper IE Law School AJ8-242-I 13-06-2018
Electronic copy available at: https://ssrn.com/abstract=3224202
La publicación de la Serie Jean Monnet Working Papers IE-Law School
está patrocinada por el Centro de Excelencia de Estudios Europeos-IE.
Copyright
© 2018 by Francisco Marcos, Professor at IE Law School.
Este working paper se distribuye con fines divulgativos y de discusión.
Prohibida su reproducción sin permiso del autor, a quien debe contactar en caso de solicitar copias.
Editado por el IE Law School e impreso por IE Publishing, Madrid, España.
The publishing of Serie Jean Monnet Working Papers IE-Law School
is sponsored by the Center of Excellence of European Studies.
Copyright
© 2018 by Francisco Marcos, Professor at IE Law School.
This working paper is distributed for purposes of comment and discussion only.
It may not be reproduced without permission of the copyright holder.
Edited by IE Law School and printed at IE Publishing, Madrid, Spain.
Electronic copy available at: https://ssrn.com/abstract=3224202
Working Paper IE Law School AJ8-242-I 13-06-2018
3
Introduction
Directive 2014/104/EU is the corollary of the EU’s policy regarding the promotion and facilitation
of private enforcement of competition law
1
. This paper examines the contents and goals of the Directive
and the specific rules adopted while also briefly analysing some of the relevant steps and features of the
procedure leading to its adoption. This may help to explain the options and compromises taken in the
final version and its scope. Although the Directive’s purported aim is to foster compensation of victims
of antitrust infringements, it is controversial and there remains uncertainty regarding how effective it
might be.
1. The path to the adoption of the Directive
The evolution in EU competition law enforcement and policy that led to the adoption of the
Directive started more than a decade ago (se Timeline below), during which several relevant milestones
were reached, all pointing in the direction that some legislative action of the EU was required.
After the EUCJ judgment in Courage (1999)
2
, the Commission prepared a Green Paper on
damages actions for breach of EU competition rules (2005)
3
. The Green Paper built on the evidence
provided by the Ashurst report on the legal conditions for damages claims in MS (2004)
4
. In 2006 the
CJEU further clarified its position concerning damages claims by victims of EU competition
infringements –extending their availability to indirect victims (Manfredi)
5
. An impact assessment with
a description of the alternative options was undertaken by the Commission in 2007
6
.
1
OJ L 349 of 5 of December 2014. All articles and recitals mentioned in this paper are those of the Directive unless
stated otherwise.
2
Judgment of 20 of September 2001 (Grand Chamber) C-453/99 Courage Ltd v Bernard Crehan and Bernard
Crehan v Courage Ltd & Others (ECLI:EU:C:2001:465).
3
Green Paper on Damages actions for breach of the EC antitrust rules, COM (2005) 652 final and Staff Working
Paper Annex to Green Paper Damages actions for breach of EC antitrust rules, COM (2005) 672 final, 19 of
December 2005 (hereinafter “Staff Working Paper 2005”).
4
Denis Waelbroeck, Donald Slater & Gil Even-Shoshan, Study on the conditions of claims for damages in case of
infringement of EC competition rules. Comparative Report, 21 of August 2004 (hereinafter “Ashurst Report 2004”)
5
Judgment of 13 of July 2006 (Third Chamber), Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA (C-
295/04), Antonio Cannito v Fondiaria Sai SpA (C-296/04) & Nicolò Tricarico (C-297/04) & Pasqualina Murgolo
(C-298/04) v Assitalia SpA (ECLI:EU:C:2006:461).
6
Making antitrust damages actions more effective in the EU: welfare impact and potential scenarios. Final
Report, CEPS-EUR-LUISS, 21 of December 2007 (heinafter 2007 Impact Assessment)
Electronic copy available at: https://ssrn.com/abstract=3224202
Working Paper IE Law School AJ8-242-I 13-06-2018
4
The Commission approved a White Paper in 2009
7
, which led to discussion of an unofficial
proposal of a Council Directive on rules governing damages actions for infringements of Articles 101
and 102 of Treaty on the Functioning of the EU (TFEU)
8
. This proposal, presented in the aftermath of
Neelie Kroes’ term as Competition Commissioner (April 2009), never made it to the formal legislative
procedure due to political opposition to some of its provisions. The unofficial Directive proposal
contained some rules on collective claims (articles 4-6) and also included limited reference to the
coordination of damages claims and public enforcement proceedings (article 8).
During this initial period, the discussion focused on the compensatory goals of damages claims,
and it even led to the adoption of some guidance on the quantification of damages for judges
9
.
In 2010, with Commissioner Joaquin Almunia (2000-2004) at the helm, the Commission resumed
the drive towards the adoption of EU rules on antitrust damages claims. Apparently, collective claims
had been considered as the “Achilles heel” in the earlier proposal by the Commission, and for that reason
7
White Paper on Damages actions for breach of EC antitrust rules, COM(2008) 165 final and Staff Working paper
accompanying the White Paper on Damages actions for breach of EC antitrust rules, COM (2008) 165 final, 2
of
April 2008 (hereinafter “Staff Working paper 2008”).
8
Consolidated version of the Treaty on the Functioning of the European Union (OJ C 326 of 26/10/2012).
9
European Commission, Quantifying antitrust damages. Towards non-binding guidance for courts (study
prepared by OXERA and a multi-jurisdictional team of lawyers lead by Assimakis Komninos, with economics
assistance of Dr. Walter Beckert, Professor Eric Van Damme, Professor Mathias Dewatripoint, Professor Julian
Franks, Dr Adriaan ten Kate and Professor Patrick Legros), December 2009.
Electronic copy available at: https://ssrn.com/abstract=3224202
Working Paper IE Law School AJ8-242-I 13-06-2018
5
this was left out of the discussion, reappearing in diluted form in a broader discussion concerning
collective redress mechanisms in case of violations of any right granted under EU law
10
.
Moreover, the need to establish clearer rules on the coordination of public and private enforcement
become more urgent after the EUCJ gave its rulings in Pfleiderer (2011)
11
, Donau Chemie (2012)
12
and
EnBw (2014)
13
. In the meantime, the EUCJ also provided significant rulings in Otis (2012)
14
and Köne
(2014)
15
, which further consolidated the EU case-law on antitrust claims. Finally, Directive
2014/104/EU was adopted at the end of Almunia’s term as Commissioner, with substantial changes from
the text of the 2009 unofficial proposal
16
.
With the adoption of the Directive, the EU has advanced from the process of negative
harmonization through the case law of the EUCJ
17
, which supported the right of compensation of victims
of anticompetitive infringements as a recognition of the principle of effectiveness of the EU law
competition prohibitions. Indeed, the Directive expressly endorses the principles of effectiveness as the
tool that –together with the principle of equivalence- should guide Member States (hereinafter MS) in
implementing the Directive (article 4). Although this is a mandate that MS should take into account in
the transposition of the Directive, it may also have relevance for the national courts in deciding damages
claims, especially given the open and vague nature of some of its rules
18
. Additionally, when the national
10
European Commission, Staff Working Document, Public Consultation: Towards a Coherent Approach to
Collective redress, SEC (2011) 0173, 4 of February 2011 and Commission Recommendation of 11 of June 2013
on common principles for injunctive and compensatory collective redress mechanisms in the MS concerning
violations of rights granted under EU Law (OJ L 201 of 26 of July 2013).
11
Judgment of 14 of June 2011(Grand Chamber) C-360/09 Pfleiderer AG v. Bundeskartellamt
(ECLI:EU:C:2011:389).
12
Judgment of 6 of June 2013 (First Chamber) C-536/11 Bundeswettbewerbsbehörde v. Donau Chemie et al.
(ECLI:EU:C:2013:366).
13
Judgment of 27 of February 2014 (Third Chamber) C-365/12P Commission v. EnBW Energie Baden-
Württemberg et al. (ECLI:EU:C:2014:112).
14
Judgment of 6 of November 2012 (Grand Chamber) C-199/11 Europese Gemeenschap v Otis NV & others
(ECLI:EU:C:2012:684).
15
Judgment of 5 of June 2014 (Fifth Chamber) C-557/12 Kone AG and Others v ÖBB-Infrastruktur AG,
(ECLI:EU:C:2014:1317).
16
OJ L 349 of 5 of December 2014.
17
See Lorenzo Pace “The Court of Justice ‘Antitrust Enforcement Negative Harmonisation Framework’ and the
CDC and Pfleiderer judgments: ‘Another Brick in the Wall’” in Bernardo Cortese (ed) EU Competition Law.
Between Public and Private Enforcement, 241-255 and See also Rainer Kulms “Competition Law Enforcement
under informational Asymmetry” China-EU Law Journal 5: 258. In reality, however, several positive obligations
may be extracted from the case-law of the ECJ, see Pieter Van Cleynenbreugel “Embedding Procedural Autonomy:
The Directive and National Procedural Rules” in Maria Bersgtröm, Marios Iacovides & Magnus Strand (eds.)
Harmonising EU Competition Litigation, The EU Directive and beyond, Hart 2016, 103.
18
The Directive contains specific obligations for national courts but in furtherance of the principle of procedural
autonomy, many issues are not dealt with in it or the transposition measures, further empowering national courts,
Figures (1)
Citations
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Book Chapter•DOI•
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Alison Jones
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Abstract: This paper examines the core features of the EU reform package designed to encourage greater volumes of private enforcement of the EU competition rules, particularly the Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. Its principal objective is not, however, to scrutinize these provisions in detail. Rather, its purpose is to reflect on the questions of why, especially when compared with the position in the US, it has proved so difficult for a culture of antitrust litigation to develop in the EU, why the Commission believed that EU measures were necessary to kindle it and to consider, against that backdrop, whether the EU package is likely to achieve its stated goals. Section 2 commences by exploring how private enforcement has developed in the US, examining not only the factors that have facilitated and encouraged it, but the extremes widely-believed to have bedeviled and undermined it, and the steps which have consequently been taken to limit and curtail private actions there. Section 3 then examines the EU system and seeks to unpick the different factors that have operated over time as barriers to private litigation in the EU Member States and to identify those that still exist. Having set out the factors that have encouraged and hindered litigation in the US and the EU respectively and examined some of the pros and cons of each system, it is possible to reflect more fully on the questions of whether private litigation should be further encouraged in the EU, what measures might be desirable or required to overcome the obstacles which exist to it, what measures should be avoided, whether the current package is likely to succeed, what pitfalls might be anticipated and/or what further developments and clarifications are likely to be required in the future. Section 4 concludes that the package of reforms is not likely to lead to over-enforcement or to the encouragement of unmeritorious antitrust actions in the EU. What may be more of an issue, however, is whether it has done enough to boost and facilitate private damages actions and to create the level playing field across the EU sought by the Commission. Not only does the Directive not institute a completely harmonised framework, leaving a number of potential obstacles to national actions and areas of legal ambiguity outstanding, but a number of the Directive’s provisions are liable to introduce considerable complexities into national proceedings. Further, scope for some significant divergences between national rules remain; such differences are likely to continue to affect where litigants choose to commence their actions and to result in forum-shopping.

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David J. Gerber1•
Chicago-Kent College of Law1
16 Jul 2007-Social Science Research Network
TL;DR: In this article, the authors examine the private enforcement of competition law in the US and Europe against the backdrop of efforts in Europe to rely more heavily on private enforcement in the enforcement of its competition law.
Abstract: Private enforcement has long been a central part of US antitrust law experience, while it has played minor roles or none at all in European competition law systems. This contrast is fundamental to understanding differences between European and US competition law and to assessing the potential consequences of increasing the role of private enforcement of competition law in Europe. It is also central to decisions about competition law development in much of the world, because in this respect most competition law systems in the world resemble European competition laws rather than US antitrust law.In this essay, I examine the private enforcement of competition law in the US and Europe against the backdrop of efforts in Europe to rely more heavily on private enforcement in the enforcement of its competition law. As part of its so-called ‘modernization’ efforts, which went into effect on May 1, 2004, the European Commission seeks to reduce reliance on administrative authorities and to encourage those harmed by restraints on competition to bring private law suits in national courts. There is, however, widespread uncertainty about the prospects for successfully incorporating private litigation into European competition law systems. There is also uncertainty about which, if any, measures should be taken to enhance acceptance of private enforcement.This article provides a comparative perspective on these issues that can provide a more solid basis for making informed decisions in the area.

6 citations

Posted Content•
Two concerns regarding the European Draft Directive on Antitrust Damage Actions

[...]

J. Kortmann, R. Wesseling
01 Jan 2013-Antitrust Chronicle
TL;DR: Kortmann and Wesseling as discussed by the authors argue that some of the measures proposed by the Commission are likely to have the opposite effect of discouraging the parties from reaching amicable settlements.
Abstract: Some of the measures proposed by the Commission are likely to have the opposite effect of discouraging the parties from reaching amicable settlements. Jeroen Kortmann & Rein Wesseling (Univ. of Amsterdam & Stibbe)

3 citations

Posted Content•
Antitrust Private Enforcement in Portugal and the EU: The Tortuous Topic of Tort

[...]

Miguel Sousa Ferro1•
University of Lisbon1
01 Nov 2016-Social Science Research Network
TL;DR: In this paper, the authors show that the assumption that the private enforcement of competition law is a matter of tort in all Member States may well prove to be wrong in several Member States, and highlights the consequences thereof.
Abstract: Directive 2014/104/EU was written on the assumption that the private enforcement of competition law is a matter of tort in all Member States. While doubts about this issue may have been brought up by some during the legislative process, they are not reflected in the final text. This assumption also underlies rules of EU law, notably in the field of private international law. This paper shows that this assumption may well prove to be wrong in several Member States, and highlights the consequences thereof. It will do so by focusing specifically on Portugal, but it is likely that the same legal issues will arise in other jurisdictions where civil law has a strong Germanic influence.

3 citations

Other•DOI•
The Antitrust Damages Directive – much ado about nothing?

[...]

Sebastian Peyer
27 Mar 2015
TL;DR: In this paper, the authors examine some of the key features of the EU Directive on antitrust damages actions and suggest that the new EU framework for EU damages actions is a seesaw between the two antithetical goals of the Directive: compensation and the coordination of enforcement.
Abstract: This chapter examines some of the key features of the EU Directive on antitrust damages actions. The Damages Directive aims to ensure effective private enforcement by facilitating claims in the courts of the EU Member States. However, the proposed measures do not address pressing issues such as claim aggregation or the funding of claims. Instead, the Directive introduces complex rules regarding access to information and joint and several liability. The new EU framework for antitrust damages actions is incoherent and unlikely to create the envisaged level playing field. Shakespeare’s ‘Much Ado About Nothing’ elegantly combines comedy with more serious politics and embarrassment. The new EU Directive on Antitrust Damages that introduces measures to facilitate and balance damages actions in the EU Member States also joins these elements but rather less gracefully. Many of the provisions of the Directive are the result of a polemical and political process that lasted for more than a decade. The product is a mix of provisions, and not the coherent rules one had hoped for. Unlike Shakespeare’s comedy, the Directive lacks any comical value, as it is soon to be translated into national law in 28 Member States. In this chapter, I will look closely at the key features of the reform of antitrust damages actions in the EU. As I will suggest, the new framework for EU damages actions is a seesaw between the two antithetical goals of the Directive: compensation and the coordination of enforcement.

3 citations

References
More filters
Journal Article•DOI•
Non-Compliance with EU Directives in the Member States: Opposition through the Backdoor?

[...]

Gerda Falkner1, Miriam Hartlapp1, Simone Leiber1, Oliver Treib1•
Max Planck Society1
01 May 2004-West European Politics
TL;DR: In this paper, a ground-level analysis of the implementation of six EU Directives in all 15 member states is presented, focusing on 26 infringement procedures from the area of labour law.
Abstract: To what extent are European rules complied with, and what are the reasons for non-compliance with EU law? According to an intergovernmentalist perspective, implementation problems should occur when member states failed to assert their interests in the European decision-making process. Focusing on 26 infringement procedures from the area of labour law, we show that such ‘opposition through the backdoor’ does occur occasionally. However, we demonstrate that opposition at the end of the EU policy process may also arise without prior opposition at the beginning. Additionally, our findings indicate that non-compliance is often unrelated to opposition, and due to administrative shortcomings, interpretation problems, and issue linkage. This study is based on unique in-depth data stemming from a ground-level analysis of the implementation of six EU Directives in all 15 member states.

145 citations

Posted Content•
Benefits from Private Antitrust Enforcement: An Analysis of Forty Cases

[...]

Robert H. Lande1, Joshua P. Davis2•
University of Baltimore1, University of San Francisco2
01 Jan 2008-Social Science Research Network
TL;DR: In this paper, the authors take a first step toward providing an empirical basis for assessing whether private enforcement of the antitrust laws is serving its intended purposes and is in the public interest.
Abstract: The goal of this Report is to take a first step toward providing an empirical basis for assessing whether private enforcement of the antitrust laws is serving its intended purposes and is in the public interest. To do this the Report assembles, aggregates, and analyzes information about forty of the largest recent successful private antitrust cases. This information includes, inter alia, the amount of money each action recovered, what proportion of the money was recovered from foreign entities, whether the private litigation was preceded by government action, the attorneys' fees awarded to plaintiffs' counsel, on whose behalf money was recovered (direct purchasers, indirect purchasers, or a competitor), and the kind of claim the plaintiffs asserted (rule of reason, per se, or a combination of the two). The article also compares the amounts collected from all antitrust violations together, and also from cases that also resulted in criminal penalties, to the total of all criminal antitrust fines imposed during the same period by the U.S. Department of Justice. This information is then used to help formulate policy conclusions about the desirability and efficacy of private enforcement of the antitrust laws.

43 citations

Posted Content•
The Transposition of European Law in EU Member States: Between Process and Politics

[...]

Bernard Steunenberg1, Mark Rhinard2, Mark Rhinard3•
Leiden University1, Stockholm University2, Swedish Institute of International Affairs3
01 Jan 2010-Social Science Research Network
TL;DR: In this paper, an approach that views transposition as a process taking place largely within ministerial agencies rather than across government systems is presented. But it is not yet clear how such an approach can help to explain the way in which member states transpose EU directives.
Abstract: This paper illuminates a critical stage of the implementation of European law: the transposition of European Union (EU) directives. Directives must be transposed into national policies in order to give effect to European law, yet most national authorities experience considerable transposition difficulties. For this reason, the study of transposition has become a focal point within the broader research agenda on noncompliance in the European Union. Highlighting several popular explanatory variables but noting the sometimes contradictory results that follow from empirical testing, this paper outlines an approach that views transposition as a process taking place largely within ministerial agencies rather than across government systems. By using variables related to these domestic processes in our empirical analysis, the paper shows how such an approach can help to explain the way in which member states transpose EU directives.

40 citations

Cambridge Yearbook of European Legal Studies

[...]

Christopher Townley
01 Jan 2008

38 citations

"Promotion and Harmonization of Anti..." refers background in this paper

  • ...…of competition infringements, direct and indirect, but the Directive’s rules mainly address cases involving victims located downstream, 122 See Dunne (2014) Cambridge Yearbook of European Legal Studies: 145 and 168-185175-179; Mark-Oliver Mackenrod “Private incentive, optimal deterrence and…...

    [...]

  • ...111 See Dunne (2014) Cambridge Yearbook of European Legal Studies: 165 and Peyer in Marquis & Cisotta (ed.)...

    [...]

  • ...117 See Dunne (2014) Cambridge Yearbook of European Legal Studies: 162 and Howard (2014) Journal of European Competition Law & Practice 4: 456....

    [...]

  • ...120 See Dunne (2014) Cambridge Yearbook of European Legal Studies: 145 and 168-185....

    [...]

Journal Article•DOI•
Toward a European Directive on Damages Actions

[...]

Frank P. Maier-Rigaud1•
Lille Catholic University1
22 Jul 2013-Social Science Research Network
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

"Promotion and Harmonization of Anti..." refers background in this paper

  • ...See also Commission Staff Working Document Practical Guide Quantifying Harm in Actions for Damages Based on Breaches of Article 101 or 102 of the TFEU accompanying the Communication on quantifying harm in actions for damages 12 (footnote 26) and Franck P. Maier-Rigaud “Toward a European Directive on Damages Actions” (2014) Journal of Competition Law & Economics 10/2: 358 and Frank P....

    [...]

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