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The Binding Effect of NCA Decisions under the Damages Directive: Rationale and Practical Implications

05 Aug 2016-Vol. 3, Iss: 1

AbstractThis article analyses the practical implications of the implementation of Article 9 of the Antitrust Damages Directive, which gives decisions issued by National Competition Authorities (“NCAs”) a key role in “follow-on” damages actions. After setting the scene, by giving a short overview of the legal status prevailing before the Directive and of the institutional process that led to its adoption, the authors propose a critical analysis of Article 9 of the Directive and put forward some considerations on the main practical issues than can surface in its implementation. In this respect, a number of critical points are identified and discussed, most notably in connection with due process rights for defendants and, more generally, potential “interoperability” issues between civil and public proceedings. more

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Journal ArticleDOI
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.

20 citations

Journal ArticleDOI
01 Jan 2017
Abstract: One of the main objectives of the so-called Damages Directive (2014/104/EU) was to make antitrust enforcement more effective. Although in most EU countries private antitrust enforcement has been possible subject to general rules of civil law; the number of private antitrust litigations has remained relatively low. It is presumed that the complementary roles of public and private enforcement, as well as the synergy between them, will take effect if formal decisions taken during public enforcement will have binding effect with regard to follow-on private litigations. According to the Damages Directive, final national decisions on competition infringements shall have binding effect in follow-on litigations. What is to be understood under ‘binding effect’, and the potential effects thereof, has been subject to a lively debate among academics and practitioners. It has been questioned if decisions of an executive body can bind the judiciary, and if so, to what extent. What is the evidentiary value of a formal decision of a NCA regarding national courts, but also on the court of another Member State. The article deals with the main issues and arguments presented in the general debate on the binding effect of national competition law decisions, and provides a closer look on this topic with regard to specific CEE countries.

3 citations

Cites background from "The Binding Effect of NCA Decisions..."

  • ...As provided by different commentators (see for example Nazzini, 2015; Merola and Armati, 2016; Panzani, 2015), it is not entirely clear if the decision of an executive body, such as a NCA, can bind national courts....


  • ...As a response to numerous critical comments submitted by Member States’ authorities18 and diversified commentators (for example Panzani, 2015; Nazzini, 2015; Merola and Armati, 2016), the effect of such cross-border final decisions is limited to prima facie evidence only (Frese, 2015)....


  • ...For Merola and Armati, the prima facie evidence of Article 9(2) seems to fall within the category of iuris tantum (that is, simple evidence), which is rebuttable with evidence with the same level of probative value (Merola and Armati, 2016)....