La réparation des préjudices causés par les pratiques anticoncurrentielles, Rafael AMARO and Jean-François LABORDE

Rafael Amaro, Jean-François Laborde

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.

*This article is an automatic translation of the original article in French, provided here for your convenience. Read the original article.

"Public and private enforcement must go together". These were the words of Alexander Italianer, then Director General for Competition at the European Commission, at a conference in Brussels in 2012. In other words, the enforcement of competition law by the public competition authorities must go hand in hand with the enforcement of the reparation actions brought before national courts by the victims of anti-competitive practices.

This statement, which seems to us to be self-evident today, marked, once again, the continuity of the approach undertaken, more than ten years ago, by the European Commission, to achieve effective implementation of the subjective rights held by European Union nationals, consumers and businesses, an approach vigorously supported by the Court of Justice and the European Parliament.

Certainly, Council Regulation 1/2003, by which the complementary action of the public competition authorities and national courts was enshrined, would achieve this balance - in law. But this was only an appearance: in practice, such private actions remained extremely rare, due to a set of difficulties common to all Member States: the complexity of these cases, which require both an economic and a legal analysis, the cost of the procedures, the unequal situation of the parties, and finally the obstacles, often overwhelming, to the burden of proof, whether it be the fault attributed to the perpetrators of anti-competitive practices, the damage suffered individually, or the causal link between the two.

The late Professor Luigi Prosperetti, a renowned economist from the University of Milan, also pointed out at the time that the concrete absence of private enforcement was a loophole in the antitrust system adopted in Europe. These obstacles were unacceptable, incompatible with the development of the single market decided by the Member States of the European Union.

The way forward for these necessary reforms had yet to be mapped out. This is what the Court of Justice of the European Union has done, notably in 2001 in the Courage judgment, by laying down the principles of efficiency and equivalence of European competition law and recalling the shared responsibility of national courts and competition authorities in the implementation of these rules. It was also the ECJ, in its Manfredi decision, which defined common standards for the determination of damages resulting from anti-competitive practices.

And it is again the ECJ which, in its Pfleiderer and Donau Chemie decisions, has struck a delicate balance between the public policy requirements of the repression of anti-competitive practices - accompanied by the necessary protection afforded to those who reveal their existence against the promise of a leniency measure - and the no less demanding guarantee for victims of better access to the evidence which is indispensable to the success of their claims for reparation.

The European directive of 2014 echoed these advances and compromises by laying down new and sometimes revolutionary rules: generalisation of the binding effect for civil, commercial and administrative courts of decisions by competition authorities finding the existence of anti-competitive practices, despite their administrative nature, establishment of multiple presumptions to lighten the burden of proof... while preserving a necessary balance between sometimes conflicting imperatives relating to the protection of public and private interests.

The transposition of the Directive by each of the Member States has followed, and these new rules, both procedural and substantive, are now applied by national courts throughout Europe. It is remarkable to note that the texts resulting from these transpositions, particularly in France, do not distinguish according to whether the infringement found by the competition authority, which constitutes a fault giving rise to civil liability, is based on a breach of European law or of national law.

Finally, the European Commission has added to this new legal arsenal non-binding practical guides for the economic analysis of damages and their compensation, veritable "toolboxes" that can help not only judges but also those who bring cases before them, consumers, businesses and their advisers, by providing them with the elements of a common language.

How have these profound changes been received in France, by the parties and by the judges?

First observation: private actions have multiplied in France. The time has passed when only 25% of penalty decisions gave rise to actions for damages, most of them brought by powerful companies before the national courts of a few Member States whose procedural rules were deemed to be more advantageous for the plaintiffs.

More importantly, what about the judges’ responses? Is the French choice of specialisation of the courts competent in competition matters supported by such a review?

Jean-François Laborde and Rafael Amaro are invited to an uncompromising assessment of the current state of affairs, and their cross-examination - that of the economist and that of the lawyer - informs the decisions discussed.

The richness and scope of the work is to be commended. There is no doubt that it is a welcome addition to the "toolbox" made available to French courts - and no doubt also to their European counterparts.

PDF Version

Author

Quotation

Jacqueline Riffault-Silk, La réparation des préjudices causés par les pratiques anticoncurrentielles, Rafael AMARO and Jean-François LABORDE , May 2019, Concurrences N° 2-2019, Art. N° 90047, pp. 261-262

Publisher Concurrences

Date 5 March 2019

Number of pages 218

Visites 267

All reviews

Buy