CONFERENCES: EU DAMAGES DIRECTIVE - IMPLEMENTATION - NCA - BINDING EFFECT

Binding effect of decisions of national authorities (Implementation of the EU Damages Directive into Member State law - Würzburg, May 5, 2017)

Article 9 of the Damages Directive requires Member States to ensure that an infringement of competition law found by a final decision of a national competition authority is deemed to be irrefutably established for the purposes of an action for damages brought before their national courts. While some Member States considered decisions by a national competition authority as binding already before the Directive, there were a number of countries where these decisions established only a rebuttable presumption of an infringement. Referring to the application of article 9 of the Damages Directive, the Member States try to determine the binding effect within the Member State of the national authority, the binding effect in another Member State and the binding effect of EU Commission’s decisions.

I. Introduction with some comparative remarks from a German perspective Jens-Uwe Franck Professor, Department of Law and MaCCl, University of Mannheim 1. Article 9 of the Directive confers binding force on decisions of national competition authorities. For the purposes of an action for damages brought before a national court, an infringement of competition law found by a final decision of a national competition authority or by a review court is irrefutably established. This principle—laid down in the first paragraph of Article 9 of the Directive—is somewhat watered down by the second paragraph that concerns decisions taken in Member States other than the one where the court is seised. In this regard, the Directive requires that decisions can be presented as at least “prima facie

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Catherine Prieto, Florian Wagner-von Papp, Jens-Uwe Franck, Frank Kroes, Marcella Negri, Binding effect of decisions of national authorities (Implementation of the EU Damages Directive into Member State law - Würzburg, May 5, 2017), September 2017, Concurrences Review N° 3-2017, Art. N° 84674, www.concurrences.com

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