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

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)

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 AsymmetryChina-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,

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05 Sep 2019
TL;DR: In this article, the authors highlight some of the considerations that may be of particular relevance in this process, with the aim of formulating some recommendations for national legislatures, even though implementation works are drawing to a dose.
Abstract: Soon Member States will bring into force the laws, regulations and administrative provisions necessary to comply with the Damages Directive (2014/104/EU). Usually Member States do not seem willing to introduce a broader scope of the application of principles embodied in EU directives. For Member States, “copy-pasting” a directive's content into a piece of national legislation is one of the simplest ways to implement a directive (another very simple one is implementation by reference; it is just referring the reader to the directive and should not be applied where the rules in a directive are not sufficiently precise, so it is not applied very often). Member States that work on the implementation of the Damages Directive either do it in a minimalist manner, mainly "copy-pasting" its content, or take the legislative opportunity to do something more and "tidy up" domestic provisions on the occasion of the transposition of the Directive. Some Member States have chosen that last option. The article attempts to highlight some of the considerations that may be of particular relevance in this process, with the aim of formulating some recommendations for national legislatures, even though implementation works are drawing to a dose. First, some “spontaneous harmonisation” of a scope broader than that provided for in the Directive is recommended on the background of the material (substantive) scope of the Directive and its transposition. The other important considerations are addressed to the personal scope of the Directive and its transposition. Finally, the short review of some more detailed issues for decision on the occasion of the transposition of the Directive is offered. Considerations regarding the principle of civil liability, the use of collective redress mechanisms, minimum harmonisation clauses, institutional design of private enforcement of competition law, as well as incentives to voluntarily provide compensation to injured parties can be found therein.

3 citations

Posted Content
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

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Posted Content
TL;DR: In this paper, the authors focus on the principles underpinning the disclosure of evidence under the Directive 2014/104/EU (hereinafter: the Directive), namely, the principles of proportionality, effectiveness, equivalence and consistency.
Abstract: The primary aim of this contribution is to reflect on the principles underpinning the disclosure of evidence under the Directive 2014/104/EU (hereinafter: the Directive), namely, the principles of proportionality, effectiveness, equivalence and consistency. Its secondary aim is to review the legislative techniques that the Directive has used in order to codify the previous case law of the European Union (EU) Courts, and to discuss several recent rulings, including Carglass, Pilkington, Evonik Degussa, Axa Versicherung, and others.The contribution seeks first to locate the scope of the disclosure of evidence by clarifying the meaning and the importance of such evidence and by examining the categories of evidence. It goes on to examine the established rule on the disclosure of evidence in the light of the principle of transparency and its legal exceptions. Finally, the author draws conclusions on the adequacy of the achieved codification of the previous case law on the disclosure of evidence and access to such evidence, as well as on its potential implications for the Member States.

2 citations

Journal ArticleDOI
TL;DR: In this paper, the authors present a rigorous economic analysis of buyer cartels, including both full participation and partial conspiracies, in the United States, the European Union and Asia, and examine the necessary precision of the damage estimate.
Abstract: Collusion among buyers leads to social welfare losses, which provide the economic rationale for public enforcement of the antitrust law. This conduct also imposes losses on the victimized sellers, which provide the foundation for private enforcement through private damage actions. In this paper, we present a rigorous economic analysis of buyer cartels. This effort includes both full participation and partial conspiracies. We review the antitrust treatment of collusive monopsony in the United States, the European Union, and Asia, offer a measure of antitrust damages, and examine the necessary precision of the damage estimate. We also suggest that the proper use of modern econometrics should allay judicial concerns with speculation.

2 citations


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

  • ...In the case of buyer cartels see Blair & Wang (2017) Managerial Decision Economics 38: 1186-1197 and 1990-1991....

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Journal ArticleDOI
TL;DR: The EU Directive on Antitrust Damages Actions holds multiple injurers jointly and severally liable for the harm they cause through jointly infringing competition laws as discussed by the authors, and if an injurer pays a victim m...
Abstract: The EU Directive on Antitrust Damages Actions holds multiple injurers jointly and severally liable for the harm they cause through jointly infringing competition laws. If an injurer pays a victim m...

2 citations

Journal ArticleDOI
TL;DR: In this article, the authors examine the manner in which judicial innovation, coupled with legislative reinforcement, has rendered this area of primary importance in terms of the emergence of a distinct European tort law.
Abstract: Efforts to develop a robust competition culture within the European Union, premised upon private enforcement of the EU competition rules, have gathered pace in recent years. This article examines the manner in which judicial innovation, coupled with legislative reinforcement, has rendered this area of primary importance in terms of the emergence of a distinct European tort law. In doing so, the article considers why this area has been singled out for such extensive vertical harmonisation, addressing this question from a variety of perspectives: those of a competition lawyer, a tort lawyer and a generalist EU lawyer. It is suggested that, while no single principled justification can explain the prioritisation of competition law in this respect, a constellation of contributory influences can be identified, including a notable comparative exemplar in the US experience, an increasingly central role for competition law within the framework of EU law more generally and, perhaps most importantly, significant institutional enthusiasm.

2 citations

OtherDOI
TL;DR: In this paper, the authors assess the framework enabling private parties to enforce competition law and the implications this has both in relation to the evolution of national tort law in EU Member States, and for an incipient acquis of EU tort law.
Abstract: This chapter aims to assess the framework enabling private parties to enforce competition law and the implications this has both in relation to the evolution of national tort law in EU Member States, and for an incipient acquis of EU tort law. It considers how the law has evolved since the CJEU in Courage v Crehan confirmed that those able to show that they have suffered loss as a result of a competition law violation are able to recover compensatory damages, and the progress made since the adoption of Directive 2014/104/EU on antitrust damages. The chapter focuses on four selected topics: the erosion of the requirement of fault; the erosion of individual responsibility; the extension of recoverable losses; and modifications to the burden of proof arising from a presumption of damage resulting from certain types of anticompetitive behaviour. It concludes by questioning whether traditional tort law doctrines at Member State level can survive under the pressure of these EU law developments. The chapter indicates areas of uncertainty that may serve to guide future research efforts.

2 citations