I. Introduction 1. Infringements of competition law can cause concrete harm to other market participants and end consumers in the form of loss of profits or higher prices for products. For this reason, already in the 1970s, the Court of Justice of the European Union — then the Court of Justice of the European Communities — paved the way for the development of the EU antitrust private enforcement by holding that the EU antitrust provisions (now Articles 101 and 102 of the Treaty on the Functioning of the EU (TFEU)) confer direct rights on individuals, which the national courts must safeguard. [1] This early step towards private enforcement has been later specified in the Courage and Crehan [2] and Manfredi [3] case law, where the CJEU stipulated a right for any individual to claim full
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Private antitrust enforcement: The impact of the disclosure of evidence in proceedings on the quantification of harm
Almost a decade after the adoption of the EU Damages Directive, private enforcement of competition law in Europe has grown to become an important element of the enforcement of the EU competition rules. It has experienced a number of essential clarifications in case law over the past years, yet the estimation of damages, a matter of huge practical significance, has only recently been touched upon by the CJEU. In its judgment in the Tráficos Manuel Ferrer (case C-312/21), the CJEU provides guidance on the quantification of harm under the Damages Directive, but it also raises new questions. The judgment has two important implications in private enforcement proceedings. Regarding the allocation of procedural costs, the CJEU has found that injured parties can, under certain conditions, be ordered to bear half of the common costs even if their claim has been partially successful, provided that the origin of those costs is attributable to them. The second important finding is the link that the CJEU establishes between the national courts’ ability to estimate damages and the exhaustion of the disclosure of evidence tools. It can be argued that the judgment leaves some leeway for national courts to include further criteria in the assessment of the power to estimate damages. The following article proposes the specific inclusion of the principle of proportionality in the considerations of national courts when estimating harm in private actions for damages.
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