Private Enforcement of Competition Law in Europe: Directive 2014/104/EU and Beyond, Rafael AMARO

Rafael Amaro

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Since the transposition of Directive 2014/104/EU (the Damages Directive), fundamental legal principles have emerged and a not insignificant body of decisions has formed. The collective work Private Enforcement of Competition Law in Europe, edited by Rafael Amaro, is a timely account of these developments. It includes contributions from leading experts in the field (professors, lawyers, jurists and economists), divided into four parts.

The first part of the book is devoted to the introduction, which is composed of two chapters. In the first chapter, Damien Gerard and Patricia Pérez Fernández concisely retrace in four movements the genesis of private enforcement of EU competition law: "formless void", "let there be light", "let the land produce" and "be fruitful and multiply". This welcome framework contains in a final section the recent decisions of the CJEU as well as the preliminary questions currently pending. In a second chapter, Hugues Parmentier provides an overview of the Damage Directive. To do so, the author firstly reviews the substantive aspects, namely the standing to act, the liability, the limitation periods as well as the quantification of the damage. In a second step, the author focuses on the procedural aspects, with a more detailed discussion of the production of evidence.

The second part ("Initiating a claim") consists of five chapters. Chapter 3 (Marc Barennes and Martin Seegers) deals with the cost of the procedure, the financing (a market in great development) and the access to justice in damages actions in Europe. The importance of the costs of the procedure is not in doubt. However, Directive 2014/104/EU does not deal with this issue, so national rules are applicable under the principle of effectiveness. As these rules are marked by a great disparity, the authors insist on the need to choose the forum with lucidity. Chapter 4 (Florian Bien and Mario Celaya) deals with the interaction between arbitration and private enforcement of competition law in Europe. The authors provide a pedagogical typology of private enforcement arbitration cases, then focus on the scope of arbitration agreements and clearly analyse the interaction between arbitration tribunals and competition authorities and between arbitration tribunals and state courts. The review of awards, the scope of which can vary greatly from one Member State to another - as is the case in France and Germany - does not escape the authors’ analysis. The authors argue for greater cooperation between arbitration tribunals and competition authorities, which would promote better enforcement of competition law. Maria José Azar-Baud and Fabienne Jault-Seseke present, in chapter 5, the class action in a European and private international law approach. Although collective actions are absent from the Damages Directive and Directive (EU) 2020/1828 on representative actions has not considered antitrust infringements, it is only a matter of time, according to the authors, before bridges are built between these two instruments. Chapter 6 ("Cross-border damage antitrust claims and private international law rules on jurisdiction"), written by Caterina Fratea, covers exhaustively the various private international law rules applicable to actions for damages, which have not been the focus of the Damages Directive. The author presents in a clear style both the provisions of the Brussels 1 bis Regulation and the relevant case law. The second part of the book ends with a chapter 7 (Bastien Thomas and François Aubin-Racine) dedicated to limitation periods. The "damages" directive has created limitation periods that are favourable to victims, but which do not escape certain questions as to their temporal application. The authors regret that the legislative framework remains fragmented between the different Member States and that it is fractured between the pre-directive and post-directive era.

The third part of the book, entitled "Establishing liability", consists of chapters 8 to 13. Chapter 8 (Olivera Boskovic) is devoted to the applicable law and is guided by Article 6(3) of the Rome II Regulation. In chapter 9 ("Investigative measures: domestic and international legal aspects"), Thomas Rouhette and Claire Massiera emphasize the importance of investigative measures in building a solid case for a successful claim for damages. The authors carefully analyze the requirements for obtaining investigative measures and focus on the relevant recent French case law (truck cartel). The need for fault is analysed in chapter 10 (Ozan Akyurek, Eric Morgan de Rivery and Yann Davie). The authors are critical of the French legal framework, which is not conducive to the promotion of private enforcement, and advocate various changes to remedy the current unsatisfactory situation. Chapter 11 ("Liability and Damages Issues - Joint and Several Liability", Alexandre Lacresse and Lucie Marchal) focuses on the identification of the legal person who must compensate for the damage on the one hand, and on the distribution of damages among the co-partners on the other. The quantification of the damage is studied in chapter 12 (Benoît Durand). The author gives - with the help of numerous illustrations - an overview of the economic analytical framework that can be applied to the determination of the damage before giving the reader various techniques for quantifying the damage and, finally, raising awareness of the issue of interests, which can have a major impact. The third part is closed by chapter 13 (Jean-François Laborde), devoted to the evaluation by the national courts of the additional costs generated by the cartel. The presentation of various graphs allows to quickly grasp the key points of the theme.

The fourth and final part of the book takes a look at different national systems, namely Germany (Rupprecht Podszun and Maximilian Konrad), Italy (Roberto Cisotta), Belgium (Pierre Goffinet and Laure Bersou), Spain (Francisco Marcos) and France (Rafael Amaro). The different contributors present in a concise style the national legal framework applicable to private enforcement and the recent relevant case law.

The collective work edited by Rafael Amaro is an essential reference in the field of private enforcement. The various contributions of authors from different backgrounds bring a fine analysis of private enforcement of competition law in Europe and cover many topics, providing the reader with a rich and prospective analysis of Directive 2014/104/EU.

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  • University of Paris I Panthéon-Sorbonne


Agnès Reinhold, Private Enforcement of Competition Law in Europe: Directive 2014/104/EU and Beyond, Rafael AMARO, September 2021, Concurrences N° 3-2021, Art. N° 101677, pp. 260-261

Publisher Bruylant

Date 1 June 2021

Number of pages 424

ISBN 9782802766872

Visites 668

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