Private Enforcement of EU Competition Law. The Impact of the Damages Directive, Pier Luigi PARCU, Giorgio MONTI and Marco BOTTA

Pier Luigi Parcu, Giorgio Monti, Marco Botta (dir.)

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.

At the date of its publication, and since the end of the implementation period of the Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 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 (hereinafter the “Damages EU Directive,” to be transposed before 27 December 2016), this book is one of the first attempts to make a concrete analysis of the impact of the Damages EU Directive at the national level in Europe on the development of private enforcement of competition law.

Such an analysis, based on a number of country case studies, points out the practical challenges faced by claimants in cross-border antitrust damages actions. It underlines in particular the significant impediments for quantifying antitrust damages encountered by claimants as they are generally disadvantaged vis-à-vis infringers in terms of access to relevant information and data. The main reason for this information asymmetry is due to the nature of a cartel infringement, which is most of the time clandestine, the limited and inadequate information contained in non-confidential fining decisions and the fact that a cartel infringement has market-wide effects but claimants are not in general in possession of aggregated market-wide data. The book points out in that respect the complexities and logistical challenges of collecting and analysing data across borders. Language translation in that respect is continuously an issue when dealing with data from multiple countries as the data will more than likely be in the local tongue. But apart from the language issue, the claimants must have also the technical know-how and experience to collect and process data from various countries, particularly given the diversity that is usually involved. Individual claimants most of the time simply lack the expertise and do not have the ability to collect and process data in order to compile a market-wide database, particularly in relation to pan-Europe infringements.

The book gives also an interesting overview of the yet non-harmonised aspects of the Damages EU Directive. It points out for instance that as regards liability, this directive does not harmonise the issue whether the defendant is liable simply for infringing the law or whether the plaintiff needs to show intention or negligence on the part of the defendant. In other words, it does not clarify whether there is a general regime of strict liability or whether the liability regime is based on a fault which has to be demonstrated by the plaintiff. Having regard to the divergence of views in the academic literature, it is interesting to note that a regime of strict liability may be difficult to apply in cases of antitrust infringements by “effect.” In such case indeed, where it is sometimes extremely difficult to determine the restrictive effect, it might be necessary, in order to conduct such demonstration, to see whether there were any negligence or intention on the part of the defendant. By doing so, however, ones will rely necessarily on elements (negligence, intention) which by definition are part of the fault-based liability regime. As regards other non-harmonised aspects of the Damages EU Directive, the book points out that the Damages Directive does not deal with the question whether parent companies should be liable for their subsidiaries in private enforcement procedure, although such issue has been cleared in the context of public enforcement. Also, while the directive provides that interest is payable, it does not say much about how interest should be calculated, or while it harmonises the right to secure damages, it omits discussion of instances where punitive damages might be available.

Finally, the book provides with an interesting overview of the roles that economists and economics play in EU private enforcement of competition law. It points out the efforts made by the European Commission to prevent economic technicalities from becoming a “shield” used by antitrust infringers against liability procedures. However it is also noted that the Damages EU Directive has emphasised the need to avoid overcompensation much more than the need to impose effective liability on the wrongdoer, the European Commission particularly focusing indeed on the technicalities of economic estimation of passing-on defence. In that respect, the European Commission has published guidelines on quantifying harm in antitrust damages actions with the view to assist national courts in the assessment of the issue of passing-on defence and of the related economic evidence. The passing-on defence, however, substantially increases the complexity of damages claims as the exact distribution of damages along the supply chain becomes exceedingly difficult to prove. The book points out therefore interestingly that this state of affairs may result in situations whereby economic technicalities are likely to end up being used as a “shield” allowing infringers to escape liability for their misconduct, precisely the situation the European Commission has appeared willing to avoid.

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Nathalie Flandin, Private Enforcement of EU Competition Law. The Impact of the Damages Directive, Pier Luigi PARCU, Giorgio MONTI and Marco BOTTA, May 2019, Concurrences Review N° 2-2019, Art. N° 90056, pp. 263-264

Publisher Edward Elgar

Date 28 September 2018

Number of pages 256

Visites 153

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