Cartel damages claims in the European Union: Have we only seen the tip of the iceberg?

While the EU is known for imposing skyrocketing fines in cartel cases, there was for a long time very limited damages litigation. Damages claims have however started mushrooming over the past few years, with most of the “action” concentrated in a few EU Member States. This recent growth in cartel damages litigation has triggered, or at least exacerbated, some concerns regarding its interplay with public enforcement. To tackle these concerns, the European Commission has been seeking to introduce EU legislation that would provide prospective plaintiffs with even and effective access to compensation while at the same time preserving the effectiveness of the Commission’s and national competition authorities’ enforcement activities. The Commission is about to “succeed” in its efforts as a Directive on Antitrust Damages Claim will soon be written into law. The present article discusses why the Draft Directive arguably fails to achieve the sought optimum equilibrium between public and private enforcement, and explores potential options that could help attain such equilibrium.

I. Introduction The European Union (“EU”) is a jurisdiction known for being “tough” on cartels. For the past two decades, the European Commission has imposed large fines on cartel members and the level of fines has consistently increased. [1] In stark contrast with vigorous public enforcement, until recently, there have been very few damages claims for competition law infringements in the EU. This limited amount of private antitrust litigation in Europe sharply contrasts with the US antitrust enforcement model where private and public enforcement have coexisted since the adoption of the Sherman Act and antitrust law has been primarily shaped by private litigation. [2] In recent years, however, cartel damages claims have mushroomed in the EU and are clearly on the rise. While the

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