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See version in english Competition Damages Actions in the EU, David ASHTON and David HENRY

BIBLIOGRAPHIE : ASHTON David et HENRY David, Edward Elgar, 2013, 277 p.

Competition Damages Actions in the EU, David ASHTON et David HENRY

David Ashton, David Henry

Competition Damages Actions in the EU, ASHTON David et HENRY David, Edward Elgar, 2013, 277 p.

Published in December 2013, this book by David Ashton and David Henry is, to the best of our knowledge, the first—or at least the most recent—to pursue a very ambitious objective : gather and detail the rules which apply, both at EU and Member State level, to actions for damages for loss caused by infringements of Articles 101 and 102 of the Treaty on the functioning of the European Union. It was published at the time when the Council adopted its general approach on the European Commission’s proposal for a 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.

Antitrust practitioners will find in this book a clear and accessible description of the rules which apply at the EU level and in several Member States. Helpful references are made to U.S. legislation and cases, especially on indirect purchaser standing and passing-on in the U.S. (pp. 62-68), class actions (pp. 167-170) and applicable law (pp. 202-203). The final chapter, which deals with quantification of antitrust damages, has been written by two respected economists, Frank Maier-Rigaud and Ulrich Schwalbe, and includes clear explanations of relevant economic notions.

As clearly indicated by the authors, the law as stated in this book is up-to-date to 11 June 2013, i.e. the day when the European Commission adopted its proposal for a new directive on actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. As competition damages actions are a very hot topic in the EU, modifications and adjustments of applicable legislation and case law are expected in the coming months and years. However updated in June 2013, it doesn’t mean that this book is useless. On the contrary, those who want to build up a comprehensive approach on competition damages actions in the EU will have a good reason to read this book. One may expect to have a second edition, published in time.

The Legal Framework

Following a traditional approach, the authors start with a useful analysis of the legal framework both at EU and Member State level. The authors go on to delimit the underlying right to damages and expose the legal basis for damages actions for breach of EU competition law in not less than twelve Member States.

Indirect Purchaser Standing and Passing-on Defence

In the following chapter, the authors discuss the issue of indirect purchaser standing and passing-on defence. They amazingly point out that : “no uniform acceptance of indirect purchaser standing emerges either in the US, where the law differs between the individual States and between the State and federal levels, on in the EU, where the rules are equally distinct among the Member States.” Antitrust practitioners will find interesting developments on the rules which apply in several Member States, including England, Germany, France and Italy. The last section of this chapter interestingly focuses on the United States.

Proving the Infringement

In a dedicated chapter, the authors discuss some evidentiary issues related to damages actions for breach of EU competition law. The first section deals with private litigants’ access to probative documents in EU cartel damages actions, held by either the European Commission, a national competition authority, the defendant (in common law legal systems) or a third party. References are helpfully made to both the recent European Commission’s proposals on the disclosure of evidence in competition law damages actions and its attempts to limit the scope of the discovery of EU documents by leniency applicants in U.S. Courts.

In the second section, the authors go on to the evidential value of prior administrative decisions of either the European Commission or national competition law.

Substantive and Procedural Issues

The chapter on substantive and procedural issues discusses several significant practical questions for antitrust practitioners. In this regard, general developments are made on the causation issue, the types of damage recoverable, the presumption of harm, limitation periods, procedures for recourse to the expertise of public authorities by the national courts and the joint and several liability issue.

Collective Action

The chapter on collective action starts with an introduction with clarifications on the mechanism of collection action which are all the more helpful as “given the autonomy of the Member States in the field of procedure and remedies, the systems of collective action throughout the EU perhaps unsurprisingly display a remarkable degree of divergence.”

The authors then go on to describe both EU and Member State level. The first section is a relevant reminder of the EU policy development in this regard from the European Commission’s Green Paper in 2005 to its proposal for a 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 in June 2013.

In a second section, the authors point out that a majority of the Member States implements collective action. However, “where a system for collective action is available (…) action in the sphere of antitrust remains rare.” The authors carefully detail the rules which apply to collective actions in the United Kingdom, the Netherlands, Denmark, Sweden, France and Italy, respectively. Developments regarding the rules which apply in the United Kingdom, where a statutory provision that is specific to competition law was inserted into the Enterprise Act 2002, should be read with great interest. As for France, the French Consumer Bill (“projet de loi relatif à la consummation” or “loi Hamon”), which includes a class action mechanism, was adopted on 13 February 2014 by the French Parliament. The French Constitutional Council confirmed that this class action mechanism complies with the French Constitution (see : French Constitutional Council, Decision no 2013-690 DC, 13 March 2014). Therefore, as soon as the French Consumer Bill is promulgated, the general approach mentioned in this book will be significantly modified.

The last section briefly presents the class action system in the United States, where it was originated.

Private International Law Aspects

The chapter on private international law aspects focuses on the questions of jurisdiction and applicable law in claims based on an infringement of EU competition law. In this regard, the authors discuss the application of Regulation 44/2001 and the so-called “Rome II” Regulation, respectively. The authors cover a broad range of cases which are very helpful references for antitrust practitioners.

Quantification of Antitrust Damages

The relevance of economic analysis in competition damages actions in the EU is growing. In this regard, the European Commission published its own Practical Guide along with its Guidance to national courts on the quantification of harm caused by infringements of the EU competition rules. In this context, the final chapter, written by Frank Maier-Rigaud and Ulrich Schwalbe, appropriately focuses on the fundamental economic principles and empirical-econometrics methods to determine damages in the context of competition law infringements.

In the first section, antitrust practitioners will find interesting developments regarding the types of damages caused by either cartel activities or abusive behavior of dominant firms.

In the second section, the methods employed in the quantification of damage in cartels as well as abuse of dominance cases are clearly explained.

This is an interesting study of both the legal and economic landscape of competition damages actions in the EU at both EU and Member State level.

PDF Version

Author

Quotation

Josselin J. Lucas, Competition Damages Actions in the EU, David ASHTON et David HENRY, May 2014, Concurrences Review N° 2-2014, Art. N° 65151, pp. 246-247

Editor Edward Elgar Publishing Ltd

Date 12 December 2013

Number of pages 320

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