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
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© 2018 by Francisco Marcos, Professor at IE Law School.
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Copyright
© 2018 by Francisco Marcos, Professor at IE Law School.
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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,
