Antitrust damages in EU law and policy - GCLC Annual Conferences Series

Eric Morgan de Rivery, Jacques Derenne, Nicolas Petit

On 7-8 November 2013, the 9th Conference of the Global Competition Law Centre (GCLC) dealt with the question of antitrust damages in EU law and policy. The content of this highly rated conference was summarized in this book. The directors of this contribution are some of the most renowned experts in this field. They made use of both their academic and professional experiences.

The foreword of this book is written by Joaquín Almunia, former EU Commissioner for competition. He stresses that “some contributions [of this book] offer an insight into the state of play of private enforcement within and outside the EU and others cast light into certain legal and practical issues which are not covered by the Commission’s initiative.

This book of four parts explains the life-cycle of an action for damages before national courts, or in the context of alternative dispute resolution proceedings. During the GCLC conference, the participants discussed the Commission’s reform package (i.e., the proposed Directive on antitrust damages actions, the non-binding recommendation on collective redress and the Communication on quantifying antitrust harm) adopted in June 2013 after a decade of work. It is important to note that the Directive on antitrust damage actions was signed into law on 26 November 2014.

The first part of the book deals with the state of play of antitrust damages in the EU and gives an overview of the proposed reform. First, Barry Rodger looks at antitrust damages at Member States level. He presents competition case-law across the EU and the remedies in competition litigation. Second, Jacqueline Riffaut Silk studies the national Courts’ perspectives with the binding effect of National Customs Authority (“NCA”) decisions. She recalls the principle of legal certainty, the obligation of sincere cooperation between, on the one hand, national courts, and on the other, the Commission and the EU courts, and the principles of effectiveness and efficiency. She stresses the need for convergence by presenting the scope of the Proposal of the Directive on antitrust damages actions and the diversity of national rules applicable to damages actions throughout Europe. Furthermore, she explains the binding effect rule and the legal elements of tort liability (fault, existence of harm and link of causation). Next, she poses several questions: how to ensure the effective implementation of the new rule? Should an infringement to the binding effect rule be sanctioned? Would the claimant have a choice? Should control of the application of the binding effect rule be given to reviewing courts? Finally, she examines the access to decisions on public enforcement taken by NCAs in the EU.

The second part of the book analyzes the initiation of a claim. First, Rafael Amaro stresses that plurality is the key for collective redress, consensual settlements and other incentive devices. He compares EU “legal tradition” with US experience. He asks several questions: Do opt-in systems work? Should group actions be limited to follow-on litigation? Are representative actions a good alternative to group actions? Is there a need to protect infringers sued through further courts’litigation? Are consensual settlements adapted to mass consumer litigation? Are opt-out consensual settlements the future of alternative dispute resolution? May group action systems work in EU Member States without punitive damages and contingency fees? Is public funding a sustainable alternative to private funding? Second, Vincent Smith looks at collective redress: the group and the judicial supervision of the settlement.

The third part of the book focuses on the determination of liability. First, Pascale Déchamps explains quantification issues (estimation and calculation of harm and presumption of harm in cartel cases). Moreover, she analyzes the new draft Directive on antitrust damages actions and general approach to estimating damages. She deepens her analysis for the construction of the benchmark (classification of methods and models, cross-sectional analysis, before-during-after analysis, difference-in-differences analysis, financial-analysis-based techniques, market-structure-based analysis, using the example of Cardiff Bus). Also, she questions whether there is any economic rationale for a presumption of X% overcharge in cartel cases and how to go from the benchmark to calculating harm. Second, Thomas Rouhette looks at critical observations on the proposed presumption of harm. Third, Muriel Chagny examines the imputability issues in collection of damages (joint liability and parent-subsidiary relationship). She analyzes the imputability to the liable parties and binding effect of NCAs’ decisions, more specifically the imputability on the basis of competition decisions and the imputability of an undertaking’s actions to legal persons. Moreover, she studies the imputability between co-infringers and solidarity rules with the principle “imputability shared among joint and several co-infringers” and the exception “limited imputability in favor of the leniency recipient”.

The fourth part of the book is the conclusion. Jacques Bourgeois explains the aim(s) of the Directive on antitrust damages actions and the effect of NCAs decisions on national courts of other Member States. He also points out the way to determine liability.

To summarize, we strongly recommend this book to anyone who has a keen interest in antitrust damages in EU law, since the adoption of the Directive on antitrust damages actions is a cornerstone for the future of EU competition law enforcement.

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  • Grisay – Lawyers and consultants (Brussels)


David Leys, Antitrust damages in EU law and policy - GCLC Annual Conferences Series, January 2015, Concurrences N° 1-2015, Art. N° 70683, pp. 257-258

Publisher Bruylant

Date 1 November 2014

Number of pages 184

ISBN 9782802748472

Visites 943

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