Effect of consensual settlements on subsequent damages actions (Implementation of the EU Damages Directive into Member State law - Würzburg, May 5, 2017)

Hand in hand with an ever-growing amount of cartel damage litigation all across Europe, settlements have become an increasingly important tool for resolving private competition law disputes. However, while the majority of disputes concern infringements committed jointly by more than one party, many settlements are concluded bilaterally between only one injured party and one of the co-infringers, leading to the difficult question of what effects the settlement would have on joint and several liabilities. In the past, these complexities have been amplified by the fact that different Member States gave different answers to this question, making it difficult to draft settlements in cases concerning multistate infringements. In this respect, Article 19 of the EU Damages Directive took a stab at harmonizing the rules across the EU. A conference held at the University of Würzburg, Germany, on May 5, 2017, took a closer look at the way the Directive has been implemented into the laws of five Member States (France, Germany, Italy, the Netherlands, and the UK), and discussed the likely impact on settlements as a dispute resolution mechanism.

I. Introduction with remarks on Germany Thomas B. Paul Partner, Hengeler Mueller Rechtsanwälte, Düsseldorf 1. While other parts of the EU Damages Directive [1] have been widely heralded as genuine game changers for private enforcement in Europe (most notably, the rules on disclosure of evidence), Article 19, which deals with consensual settlements and their effects on subsequent actions for damages, has received far less attention—and perhaps undeservedly so. Even in the three European jurisdictions that are considered to be leaders in private enforcement (the UK, the Netherlands, and Germany), the courts still face tremendous difficulties in assessing and quantifying damages, often leading to protracted multi-year litigation and battles between economic experts. By contrast,

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  • Baker McKenzie (Amsterdam)
  • University of Salento (Lecce)
  • Hengeler Mueller (Düsseldorf)
  • University of Paris I Panthéon-Sorbonne
  • Helmut Schmidt University of the Armed Forces (Hamburg)


Frank Kroes, Cristoforo Osti, Thomas B. Paul, Catherine Prieto, Florian Wagner-von Papp, Effect of consensual settlements on subsequent damages actions (Implementation of the EU Damages Directive into Member State law - Würzburg, May 5, 2017), September 2017, Concurrences N° 3-2017, Art. N° 84679,

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