BOOKS: LIANOS Ioannis, DAVIS Peter and NEBBIA Paolisa, Oxford University Press, 2015, 394 p.

Damages Claims for the Infringement of EU Competition Law, Ioannis LIANOS, Peter DAVIS and Paolisa NEBBIA

Ioannis Lianos, Peter Davis, Paolisa Nebbia

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to stephane.rodrigues-domingues@univ-paris1.fr for review in this section.

Damages claims for harm caused by the infringement of EU (and national) competition law have become a practical reality. These claims significantly increase companies’ financial exposure for antitrust violations. Their emergence has disrupted in many ways the competition law enforcement framework in Europe, and will continue to do so in the years to come. As such, it has given rise to a host of new legal questions at the frontier between competition and torts law, but also within the competition law enforcement sphere, notably at the interactions between public and private enforcement. This significant evolution, which has been presented as the fourth prong of the process of “modernization” of EU competition law enforcement, has been the subject of many studies over the past decade and the publication in 2005 of the Green Paper on damages. At the origin relatively abstract because of the paucity of precedents and lack of dedicated legal framework, these studies have gradually expanded in many directions.

One of the great merits of Lianos, Davis and Nebbia’s volume is to take stock of and process ten years of legal and economic developments in the area of private antitrust damages actions in Europe, and to focus on a selected number of themes that have actually been—and still are—the source of significant practical issues. As the authors acknowledge, their aim was not to be exhaustive but to cover in sufficient depth key areas that have not necessarily received sufficient attention in the past. The result is a 375-page well-balanced volume written by a group mixing legal and economics expertise, academic and practical experience and first-hand familiarity with both public and private enforcement. As an “advanced introduction to the law and economics of competition damages action in the EU”, the volume constitutes a great resource for legal practitioners pioneering the area but equally to students and academics looking for a thorough yet compact discussion of those issues that really matter.

Remarkably, more than a quarter of the book is devoted to the under-studied yet crucial question of causation, as the European Commission painfully learnt recently with the dismissal of the damages action it brought before the Brussels Commercial Court for compensation of the alleged harm caused by the elevators and escalators cartel, as described in the Commission’s own decision in Case COMP/E-1/38.823. Because causation is only indirectly touched upon in the Damages Directive (with the establishment of a causal presumption for cartel harm) and the CJEU refused to develop a common framework on causality in Kone (C-557/12), Chapter 4 offers a review of various legal theories on causation and engages in a comparative analysis of the rules governing causation in various EU jurisdictions, with a view to informing the possible emergence of EU causation rules driven by the notion of effectiveness. Chapter 5 then discusses the interaction between the legal and economic concepts of causation and provides a very compelling, though still synthetic, restatement of the correlation vs. causation debate, of relevance way beyond the field of antitrust damage actions.

The treatment of the interaction between public and private enforcement, a puzzle for the majority of jurisdictions relying on a dual enforcement system, is equally remarkable. While addressing conceptual questions of optimal enforcement and balance between policy principles, the core of Chapter 7 is devoted to the discussion of concrete and increasingly sensitive questions pertaining to the coordination between public enforcement and action for damages, including the access to the public enforcement file, the interaction of leniency applications and actions for damages, the binding effect of the findings of violation in public enforcement proceedings and the possibility to combine fines and punitive damages. The discussion of each of these questions includes concrete examples and many references to both cases and the literature, with useful digressions on US law on, e.g., compensation between defendants.

The volume also explores the methods available for the calculation of damages in both cartel and abuse of dominance cases. With many examples illustrating the need for a fact-driven choice of calculation method, Chapter 6 interacts with the Commission “Quantifying Harm” Staff Working Paper but also discusses issues such as the computation of interest and the question of discounting. Lawyers will find there valuable resource to facilitate their understanding of key economic concepts and their possible collaboration with economic consultants.

The management of parallel enforcement actions, of a private and/or public nature, is examined in Chapter 8. Highlighting the conceptual similarities of the conflict of law rules applicable to the coordination of private actions with those set forth by Regulation 1/2003 in relation to public actions and public and private actions, the chapter is particularly valuable for its thorough discussion of the application of the Brussels Regulation system to the area of damages claims.

Last but certainly not least, Chapters 1 and 2 offer successively: (1) a detailed overview of the legal history of private enforcement in Europe and of its underlying premises (deterrence, compensation and effectiveness), starting with the 1961 Deringer Report up until the 2014 judgment in Kone, including a legislative history of Directive 2014/14 on actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union; and (2) a commentary of the central provisions of Directive 2014/104 on the scope of the right to compensation, the disclosure of evidence, limitation periods, the effects of national decisions, joint and several liability, the passing-on defence and purchaser standing, together with a discussion of the Commission Recommendation on collective redress against the background of the 2005 Green Paper on Damages.

At the end, Lianos, Davis and Nebbia’s volume strikes the right balance between theoretical considerations aimed to feed the development of a private enforcement system that is still in formation in Europe, and technical analyses of existing rules and case law designed to guide practitioners on the still largely uncharted waters of damages claims for infringement of EU (and national) competition law. In the “brave new world of multi-jurisdictional competition law enforcement” characterized by large areas of regulatory space still occupied by national rules, Lianos, Davis and Nebbia’s book will certainly prove a useful companion to the growing cohort of adventurous spirits engaged in its discovery.

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Author

  • Université Catholique de Louvain

Quotation

Damien Gerard, Damages Claims for the Infringement of EU Competition Law, Ioannis LIANOS, Peter DAVIS and Paolisa NEBBIA, December 2015, Concurrences Review N° 4-2015, Art. N° 76044, pp. 256-257

Editor OUP Oxford

Date 4 June 2015

Number of pages 416

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