The Binding Effect of NCA Decisions under the Damages Directive: Rationale and Practical Implications
Abstract: This 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.
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)....
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