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1
Wolski, Dominik. "Private antitrust enforcement in digital market." Bratislava Law Review 4, no. 2 (December 31, 2020): 147–60. http://dx.doi.org/10.46282/blr.2020.4.2.210.
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The increasing popularity of private antitrust enforcement in the EU is reflected by number of antitrust damages claims in the member states, following the transposition of the Damages Directive. Meanwhile, rapid growth of digitization in every aspect of social and economic life, particularly in business like commerce and services, has taken place. Recently, the above phenomenon was intensified by COVID-19. This paper aims at discussing private antitrust enforcement and antitrust damages claims in the context of digital transformation of the market. To this extent, there are several main characteristics of the market (e.g. multi-sided platforms, the role of third-party sellers, etc.), that have to be taken into consideration in the above discussion.
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Wils, Wouter P. J. "The Relationship between Public Antitrust Enforcement and Private Actions for Damages." World Competition 32, Issue 1 (March 1, 2009): 3–26. http://dx.doi.org/10.54648/woco2009002.
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This paper concerns the relationship between public antitrust enforcement and private actions for damages, focusing in particular on the enforcement of Articles 81 and 82 EC. In the first half of the paper, I examine the respective roles of public antitrust enforcement and private actions for damages. I argue that public enforcement should aim at clarifying and developing the antitrust prohibitions and deterring and punishing violations, whereas private actions for damages should aim at compensation. This corresponds to the approach adopted by the European Commission in its 2008 White Paper on damages actions for breach of the EC antitrust rules, and differs from the US approach which views damages actions as an instrument of deterrence. In the second half of the paper, I analyze a number of specific issues concerning the interaction between public antitrust enforcement and private actions for damages: the binding effect of the finding of a violation in public enforcement proceedings on follow–on actions for damages; access to the public enforcement file; encouragement of voluntary compensation through fine rebates, as a condition for leniency, or as part of settlements; punitive damages; private demand for public enforcement; the impact of private actions for damages on substantive law; and their impact on leniency.
3
Rosso, Selene. "Ways to Promote Workable Private Antitrust Enforcement in Italy." World Competition 32, Issue 3 (September 1, 2009): 305–25. http://dx.doi.org/10.54648/woco2009033.
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While the European Commission is retreating its proposal to import the US model of private antitrust enforcement, this is gaining ground in Italy, where double damages have been awarded in the well-known Manfredi case. Nevertheless, it is still difficult to be awarded antitrust damages by an Italian court because of several reasons: (1) the labyrinth of the Italian courts, (2) the pliability of the Government to lobbying pressures, and (3) the courts’ reluctance/inability to deploy economic concepts in calculating the amount of damages. Bearing in mind such issues, this article aims to propose viable ways of encouraging private parties to claim antitrust damages before the Italian courts, having regard to the more consolidated US experience and the suggestions put forward by the Commission at EC level. In particular, it shows the benefits of the following proposals: (1) to eliminate the exclusive competence of the Courts of Appeal so that all the cases concerning antitrust damages would go through the normal steps of the Italian judicial hierarchy and (2) to involve the National Competition Authority (NCA) in private litigation, by giving it the task of quantifying antitrust damages.
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Wils, Wouter P. J. "Should Private Antitrust Enforcement Be Encouraged in Europe?" World Competition 26, Issue 3 (September 1, 2003): 473–88. http://dx.doi.org/10.54648/woco2003023.
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The EC antitrust prohibitions are regularly invoked in private litigation as a shield. Private parties also play an important role in public antitrust enforcement through complaints to the competition authorities. However, in marked contrast with the situation in the US, private actions for damages or for injunctive relief are rare. This article argues that this situation is a desirable one. Indeed, from the perspective of ensuring that the antitrust prohibitions are not violated, public antitrust enforcement is inherently superior to private enforcement, because of more effective investigative and sanctioning powers, because private antitrust enforcement is driven by private profit motives which fundamentally diverge from the general interest in this area, and because of the high cost of private antitrust enforcement. There is not even a case for a supplementary role for private enforcement, as the adequate level of sanctions and the adequate number and variety of prosecutions can be ensured more effectively and at a lower cost through public enforcement. It also seems difficult to justify an increased role for private antitrust enforcement in Europe by the pursuit of corrective justice, as there does not appear to be a clear social need for such action, and because truly achieving corrective justice in the antitrust context is in practice a very difficult task.
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Albors-Llorens, Albertina. "Antitrust Damages in EU Law." University of Queensland Law Journal 37, no. 1 (May 18, 2020): 139–51. http://dx.doi.org/10.38127/uqlj.v37i1.4143.
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The adoption of Directive 2014/104/EU on actions for damages for infringements of the competition rules has marked the beginning of a new era in the field of the private enforcement of the EU competition rules. The arduous legislative journey leading to the adoption of the Directive, the specific aspects pertaining to the exercise of damages actions covered by it and its attempt to establish an effective coordination between the systems of public and private enforcement have already received intense attention by antitrust scholars. However, this contribution will focus on the study of the Directive’s significance as a novel legal instrument in both the fields of EU competition law and EU law in general.
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Piszcz, Anna. "Piecemeal Harmonisation Through the Damages Directive? Remarks on What Received Too Little Attention in Relation to Private Enforcement of EU Competition Law." Yearbook of Antitrust and Regulatory Studies 8, no. 12 (2015): 79–98. http://dx.doi.org/10.7172/1689-9024.yars.2015.8.12.4.
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On 11 June 2013, the European Commission adopted a package of measures to tackle the lack of an efficient and coherent private enforcement system of EU competition law in its Member States. In particular, a draft Damages Directive was proposed in order to meet the need for a sound European approach to private enforcement of EU competition law in damages actions. The Damages Directive was ultimately adopted on 26 November 2014. This paper explores some aspects of private antitrust enforcement which have not received sufficient attention from the EU decision-makers during the long preparatory and legislative works preceding the Directive. The paper discusses also some of the remedies that have not been harmonised, and shows how these ‘gaps’ in harmonisation may limit the Directive’s expected influence on both the thinking and practice of private antitrust enforcement in Europe. It is argued in conclusion that further harmonisation may be needed in order to actually transform private enforcement of EU competition law before national courts
7
Mikelėnas, Valentinas, and Rasa Zaščiurinskaitė. "Quantification of Harm and the Damages Directive: Implementation in CEE Countries." Yearbook of Antitrust and Regulatory Studies 10, no. 5 (2017): 111–31. http://dx.doi.org/10.7172/1689-9024.yars.2017.10.15.6.
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Quantification of harm is regarded as one of the most significant obstacles for the full compensation of harm and development of private enforcement within the European Union, including CEE Member States. Consequently, the Damages Directive establishes general rules and requirements for the quantification of harm, such as a rebuttable presumption of harm in case of cartels, the power of national courts to estimate harm as well as others, which closely interact with the principle of full compensation emphasized by the case-law of the European Union and directly established in the Damages Directive. The main focus of this paper is the effectiveness of the rules on the quantification of harm in general, and how these rules will contribute to the development of private antitrust enforcement in CEE Member States. Therefore, one of the issues to be discussed in the paper is the analysis of how, and to what extent specific rules and requirements for the quantification of harm have been transposed into the national legislation of CEE Member States. As certain CEE national jurisdictions have had certain rules for the quantification of harm already before the implementation of the Damages Directive, the paper analyses how effective these rules have been, and how much they have contributed to the development of private antitrust enforcement of those CEE national jurisdictions. Previous experience of those CEE Member States in applying specific rules for the quantification of harm is important, in order to assess the possible impact of the newly introduced rules on the quantification of harm and on private antitrust enforcement in general in other CEE Member States. The rules for the quantification of harm will not enhance private antitrust enforcement on their own, however, their effective application by national courts together with other rules under the Damages Directive should contribute to a quicker development of private enforcement in CEE Members States.
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Stanikunas, Rimantas Antanas, and Arunas Burinskas. "The Interaction of Public and Private Enforcement of Competition Law in Lithuania." Yearbook of Antitrust and Regulatory Studies 8, no. 12 (2015): 237–57. http://dx.doi.org/10.7172/1689-9024.yars.2015.8.12.11.
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This paper provides a study of the interaction between public and private enforcement of Lithuanian antitrust law. The study refers to the Damages Directive. It has been found that private enforcement depends greatly on public enforcement of competition law. Therefore, their compatibility and balance are of great importance to antitrust policy. The Lithuanian NCA prioritises cases where an economic effect on competition does not have to be proven. This creates uncertainty about the outcome of private enforcement cases. Private enforcement in Lithuania is also in need of detailed rules on the identification of harm and causality. The analysis reveals how challenging it can be to estimate and prove harm or a causal link in private enforcement cases. Support from the NCA is therefore exceedingly needed. Moreover, even though the use of the leniency programme helps, it remains insufficient to solve the problem of under-deterrence. However, measures introduced by the Damages Directive do not make the leniency programme safe.
9
Sarra, Alessandro, and Alessandro Marra. "Are Monetary Incentives Enough to Boost Actions for Damages in the European Union? On the Relevance of Incompleteness of Laws and Evidentiary Requirements." World Competition 31, Issue 3 (September 1, 2008): 369–84. http://dx.doi.org/10.54648/woco2008031.
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In this article we intend to contribute to the public debate regarding the lack of private antitrust enforcement in the European Union. The European Commission suggests to concentrate on monetary incentives to boost actions for damages (among them, granting full compensation, promoting aggregate actions, reducing the costs associated with antitrust claims, and so on). We argue that monetary incentives are not sufficient to create an efficient regime of private enforcement of law. In particular, we develop the thesis that to increase the number of effective damages actions is useful to better contemplate the incompleteness of antitrust laws and the relevance of evidentiary requirements needed to initiate a successful lawsuit.
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Mouton, Jeanne. "The challenges for private competition law enforcement concerning anticompetitive conducts in digital markets." YEARBOOK OF ANTITRUST AND REGULATORY STUDIES 15, no. 26 (December 2022): 9–32. http://dx.doi.org/10.7172/1689-9024.yars.2022.15.26.1.
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The paper reviews literature on theories of harm in digital markets, and the specific difficulties in quantifying the damage in private enforcement of competition law. The development of a tentative case-law on private enforcement in digital markets in the European Union is studied next, in comparison to the US antitrust practice, differentiating between businesses or consumers filing damages claims. Finally, the paper raises the specific issues posed by the digital economy for competition law claims for damages, and explores the idea of extending the presumption of harm also to abuse of dominance in digital markets, as well as making private parties aware of cease and desist injunctions or filing for private enforcement remedies.
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Gerasymenko, Anzhelika, and Nataliia Mazaraki. "Antitrust Damages Actions in Ukraine: Current Situation and Perspectives." Yearbook of Antitrust and Regulatory Studies 8, no. 12 (2015): 195–213. http://dx.doi.org/10.7172/1689-9024.yars.2015.8.12.9.
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The article gives an overview of Ukrainian legislation and experiences concerning antitrust damages actions. The analysis has led to a number of conclusions: private claims are rare in Ukraine due to difficulties in obtaining evidence, high legal costs, and lacking confidence in the Ukrainian court system. The paper gives examples of Ukrainian private antitrust enforcement practice and provides a statistical analysis of the dynamics of ‘compensated’ damages caused by antitrust infringements in Ukraine. The value of ‘compensated’ damages is compared to the value of the economic effect of stopping antitrust infringements, as well as to the value of the overall welfare loss deriving from market power in the national economy. Finally, some new sources of damages caused by market power are discussed considering the development perspectives of this branch of antitrust activity.
12
Wolski, Dominik. "Can an Ideal Court Model in Private Antitrust Enforcement Be Established?" Yearbook of Antitrust and Regulatory Studies 11, no. 18 (2018): 115–52. http://dx.doi.org/10.7172/1689-9024.yars.2018.11.18.5.
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Any discussion of private antitrust enforcement usually focuses on substantive law and proceedings applicable to private antitrust cases. Those elements are important, however, the efficacy of both public and private enforcement relies upon rules of law (substantive and procedural) along with their application. The latter constitutes a substantial aspect affecting the institutions which make decisions in private antitrust enforcement cases, namely the relevant courts. The enforcement of competition law is inextricably intertwined with the economy and markets. As a result, antitrust cases are demanding for non-specialist judges, who usually do not have enough knowledge and experience in the field of competition. Even if the Damages Directive has already been implemented in all EU Member States, there is still room for discussion about developing an optimal court model for the adjudication of private antitrust enforcement cases. In the aforementioned discussion the issue of the binding effect of decisions made by the European Commission (EC) and National Competition Authorities (NCAs) in private enforcement cases, as well as the experience of judges stemming from the number of cases they have resolved, cannot be missed. Bearing this in mind, the main aim of this paper is to analyse the model of competent courts operating in private antitrust cases in twenty selected countries including the US, the UK and the vast majority of EU Member States. Taking into account that a theoretically pure concept of an ideal model of relevant court operations presumably does not exist, it is essential to try to figure out what the main characteristics of the courts might be that can lead to effective private antitrust enforcement.
13
Massa, Claudia. "Private Antitrust Enforcement Without Punitive Damages: A Half-Baked Reform?" Yearbook of Antitrust and Regulatory Studies 11, no. 17 (2018): 93–111. http://dx.doi.org/10.7172/1689-9024.yars.2018.11.17.5.
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Directive 2014/104/EU on private antitrust enforcement opted for the exclusion of punitive damages from the category of recoverable damages following a violation of antitrust law. This article will outline the concept of punitive damages and analyse the relevant case-law of the courts of the Member States, of the ECtHR and of the ECJ. Then, it will examine the regime laid down in the Directive and consider the possible reasons why the European legislator opted for this exclusion. Thus, the opportunity to introduce such a provision into the European legal system will be evaluated, taking into consideration the problem of overdeterrence, the problem of the division of functions between public and private enforcement, and enforcement of intellectual property rights. Finally, a possible modification of Article 3(3) of the Directive will be suggested, in the framework of the review that the Commission is required to undertake by December 27, 2020
14
Moisejevas, Raimundas. "The Damages Directive and Consensual Approach to Antitrust Enforcement." Yearbook of Antitrust and Regulatory Studies 8, no. 12 (2015): 181–94. http://dx.doi.org/10.7172/1689-9024.yars.2015.8.12.8.
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The article focuses on the novelties introduced by the Damages Directive in the field of consensual settlements of disputes concerning private enforcement. The Damages Directive obliges Member States to ensure that the limitation period for bringing an action for damages is suspended for the duration of any consensual dispute resolution process. The Directive also establishes the main principles that govern the effect of consensual settlements on subsequent actions for damages. Since the EU framework for consensual dispute resolution of private enforcement disputes is quite new, many issues must still be solved in Member States’ practice. While analysing consensual dispute resolution in private enforcement cases, particular interest should be paid to mediation and arbitration as a form of Alternative Dispute Resolution (ADR). Mediation is often used in competition law litigation. In a mediation process, parties are subject to fewer legal costs than in litigation and arbitration. It may thus be concluded that consensual dispute resolution is usually a faster way to receive compensation. However, voluntary arrangements and ADR in competition law still raise many problems concerning both procedural and substantial legal acts
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Pärn-Lee, Evelin. "Effect of National Decisions on Actions for Competition Damages in the CEE Countries." Yearbook of Antitrust and Regulatory Studies 10, no. 5 (2017): 177–96. http://dx.doi.org/10.7172/1689-9024.yars.2017.10.15.9.
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One of the main objectives of the so-called Damages Directive (2014/104/EU) was to make antitrust enforcement more effective. Although in most EU countries private antitrust enforcement has been possible subject to general rules of civil law; the number of private antitrust litigations has remained relatively low. It is presumed that the complementary roles of public and private enforcement, as well as the synergy between them, will take effect if formal decisions taken during public enforcement will have binding effect with regard to follow-on private litigations. According to the Damages Directive, final national decisions on competition infringements shall have binding effect in follow-on litigations. What is to be understood under ‘binding effect’, and the potential effects thereof, has been subject to a lively debate among academics and practitioners. It has been questioned if decisions of an executive body can bind the judiciary, and if so, to what extent. What is the evidentiary value of a formal decision of a NCA regarding national courts, but also on the court of another Member State. The article deals with the main issues and arguments presented in the general debate on the binding effect of national competition law decisions, and provides a closer look on this topic with regard to specific CEE countries.
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Schinkel, Maarten Pieter, and Jakob Rüggeberg. "Consolidating Antitrust Damages in Europe: A Proposal for Standing in Line with Efficient Private Enforcement." World Competition 29, Issue 3 (September 1, 2006): 395–420. http://dx.doi.org/10.54648/woco2006029.
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One of the lessons from US private antitrust practice is that limitation of defendants’ and plaintiffs’ rights should not be imposed lightly. Three Supreme Court decisions in Hanover Shoe, Illinois Brick and ARC America denying the pass-on defence and limiting standing to sue have resulted in a complex system of multi-district and multi-party litigation that achieves neither fair compensation nor efficient deterrence. Excluding the pass-on defence in Europe is a first step in a similarly irreversible sequence of further corollary requirements. We caution against taking this route and instead propose an alternative institutional design for the European Union. The proposal involves a centralised consolidation of fragmented individual antitrust damage claims. The assessment of damages is allocated to a central authority, which acts as amicus curiae upon a definitive infringement decision in an initiating action before a national court. This advisory position would most naturally be designated to a competition authority. It would conduct a public investigation and assess and specify the combined economic damages caused by the infringement. Its consolidated damage report is offered as an advice to the court, which subsequently apportions individual damages to the initiating plaintiff. Later related claims can refer to the report in consequential actions before national courts. The procedure provides an efficient, single, consistent and complete damage estimate, while still utilising the full detection potential of unrestricted private damage actions. This allows for an effective and efficient mechanism of private antitrust enforcement, whilst achieving compensation of actual damages for those injured by anti-competitive acts.
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Nowag, Julian, and Liisa Tarkkila. "How much effectiveness for the EU Damages Directive? Contractual clauses and antitrust damages actions." Common Market Law Review 57, Issue 2 (April 1, 2020): 433–74. http://dx.doi.org/10.54648/cola2020033.
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The Damages Directive is celebrated as a milestone for private enforcement of EU competition law; it harmonizes national procedural laws and aims to facilitate full compensation for damages resulting from competition law violations. Businesses frequently use contractual clauses that might present obstacles in obtaining compensation. Recent examples include a US case against Uber which was inadmissible because of clauses in the app’s terms and conditions; and clauses included in Ryanair’s terms and conditions. This paper explores the extent to which clauses on jurisdiction, mandatory arbitration, and those preventing participation in class actions endanger the Directive’s effectiveness. It shows that, in contrast to consumer situations, such dangers do exist in commercial cases. It suggests a balancing exercise between party autonomy and full effectiveness of victims’ rights. The principle of effectiveness provides some protection, but these dangers to the development of a strong private enforcement are likely to remain in the future and suggest renewed attention for private enforcement.
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Peyer, Sebastian. "CARTEL MEMBERS ONLY—REVISITING PRIVATE ANTITRUST POLICY IN EUROPE." International and Comparative Law Quarterly 60, no. 3 (July 2011): 627–57. http://dx.doi.org/10.1017/s002058931100025x.
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AbstractThis paper examines the current European private antitrust enforcement policy. The European Commission's White Paper of 2008, the unofficial Draft Directive of 2009 and the collective redress consultation of 2011 consider a facilitated access to private actions for all types of antitrust violations under articles 101 and 102 TFEU in order to effectively compensate the victims of anticompetitive conduct. Assuming that changes are necessary, the paper argues that it might be worthwhile to limit this policy to damages claims against hardcore violations such as cartels. This suggestion is based on two main arguments. Firstly, the current European private antitrust policy probably underestimates the risks of more damages actions against all types of infringements neglecting insights from the economic analysis of law. Secondly, a revised approach is not only in line with the thinking that underpins the reform but also addresses an actual need as revealed by a comparison of litigation data from different jurisdictions. Refining the European private antitrust policy, it is argued that a focus on hard-core anticompetitive constraints such as price fixing would mitigate the potential for a strategic use of antitrust litigation and reduce the likelihood that the reform of European antitrust damages actions will lead to negative outcomes.
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Cengiz, Firat. "ANTITRUST DAMAGES ACTIONS: LESSONS FROM AMERICAN INDIRECT PURCHASERS' LITIGATION." International and Comparative Law Quarterly 59, no. 1 (January 2010): 39–63. http://dx.doi.org/10.1017/s0020589309990030.
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AbstractThis article aims to draw policy lessons from the American indirect purchasers' litigation experience for the design of the European private antitrust regime in the light of the European Commission's White Paper on damages actions. The article shows that in multi-level polities procedural aspects of antitrust litigation and judicial cooperation are as crucial as the substantive standards for the success of private enforcement regimes. From this perspective the article criticizes the White Paper for the lack of procedural assessment and urges the Commission to give due consideration to procedural standards and mechanisms of judicial cooperation before taking any legislative action.
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Davidow, Joel. "Recent Developments in US Antitrust." World Competition 28, Issue 3 (September 1, 2005): 299–312. http://dx.doi.org/10.54648/woco2005019.
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A major issue for US antitrust enforcement in the last year or so has been how to achieve maximum detection and deterrence of cartels, even at the cost of weakening certain sanctions. Thus, new legislation protects first-to-confess price fixers from criminal penalties and from trebling of damages owed to customers. To the same end, US enforcement agencies have sought to cut back the ability of foreign victims of the non-US aspects of worldwide cartels to obtain damage relief in American courts. This approach has been justified primarily as facilitating the operation of leniency policies by decreasing the scope, or uncertainty, of the private damage action consequences of confession. Closing US courts to foreign victims has also been justified in terms of the expressed wishes of the US allies (e.g. Germany, Japan, Canada) to fashion their own private remedy policies for their residents. In merger enforcement, trends are steady, but many litigated merger cases were decided against the Government, which could not always support its theories of probable consumer injury with hard facts. Cases involving misuse of intellectual property continue to be aggressively fought, particularly where dubious means are used to enshrine a patented invention as part of an industry standard. US efforts toward international cooperation and harmonisation have had a steady pattern of achievement, but some difficult issues of policy and practice seem intractable, particularly centralisation of merger control and harmonisation of approaches to private remedies.
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Wils, Wouter P. J. "Leniency in Antitrust Enforcement: Theory and Practice." World Competition 30, Issue 1 (March 1, 2007): 25–63. http://dx.doi.org/10.54648/woco2007003.
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This article discusses the theory and practice of leniency in antitrust enforcement, i.e. the granting of immunity from penalties or the reduction of penalties for antitrust violations in exchange for cooperation with the antitrust enforcement authorities. After a description of the practice of leniency in the United States and in the European Union, and of its history, the article analyses the positive effects and the possible negative effects of leniency on optimal antitrust enforcement, and the extent to which these effects can be measured. Objections of principle and institutional problems that may constitute obstacles to the introduction of leniency policies are discussed, as well as some further issues, namely the impact on the effectiveness of leniency of criminal penalties on individuals, of follow-on private damages actions, and of penalties in other jurisdictions, ’’Amnesty Plus’’, and positive financial rewards or bounties.
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Galič, Aleš. "Disclosure of Documents in Private Antitrust Enforcement Litigation." Yearbook of Antitrust and Regulatory Studies 8, no. 12 (2015): 99–126. http://dx.doi.org/10.7172/1689-9024.yars.2015.8.12.5.
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Procedural tools aimed at access to information in general, and disclosure of documents in particular, are crucial for the effectiveness of private antitrust enforcement litigation and for facilitating more genuine equality of arms. Currently, profound differences exist among EU Member States’ civil procedure laws concerning disclosure of evidence held by the opponent. The transposition of the litigation disclosure mechanism contained in the Damages Directive will undermine the existing principles of Slovenian civil procedure. However, this is due to the fact that Slovenian law is outdated with regard to evidence disclosure. Not only that, it is also partially based on an erroneous premise, typical for the traditional civil law approach, whereby the principle against self-incrimination applies in civil cases in the same way as in criminal cases. As a result, the obligatory transposition of the Directive’s requirements should be perceived as a positive step for Slovenia. Yet this step will be successful only if followed by a general reassessment of evidence disclosure rules in Slovenian civil procedure law.
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Wolski, Dominik. "The Principle of Liability in Private Antitrust Enforcement in Selected European States in Light of the Implementation of the Damages Directive into the Polish Legal System." Yearbook of Antitrust and Regulatory Studies 9, no. 14 (2016): 69–95. http://dx.doi.org/10.7172/1689-9024.yars.2016.9.14.3.
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In the vast majority of European countries, private antitrust enforcement falls under general rules of civil law. One of the issues to be discussed in relation to this type of litigation is the principle of liability, which exists in the given legal system, and its presumed impact on private enforcement. This problem has been debated in the course of the implementation works on the Damages Directive into the Polish legal system. A discussion on the principle of liability has taken place at least twice in this context. First, the issue was considered by the Civil Law Codification Commission and expressed in its Assumptions behind the Draft Act on complaints for damages caused by the breach of competition law. Subsequently, the principle of liability was assessed again at the reconciliation conference held at the Ministry of Justice. This is but a part of a broader discussion about the relationship between the rule of liability existing in national laws being applied to private enforcement cases and EU law as well as limitations arising from the latter. After outlining this interplay, the paper will briefly introduce solutions adopted with respect to the principle of liability in the context of private enforcement in selected European countries. The selection is not random, despite the fact that a limited number of countries has been analysed – eight including Poland. These include the most advanced EU Member States when it comes to private antitrust enforcement (such as the UK, Germany or the Netherlands), along with less developed examples (such as Italy or France), and even underdeveloped countries when it comes to the number and popularity of private antitrust litigations (such as Lithuania and Poland). This sort of analysis paints a relatively comprehensive picture of the adopted solutions in relation to the principles of liability governing private enforcement cases in Europe. The same is true for the issue of the burden of proof and presumptions/binding power in civil proceedings of decisions issued by competition authorities. Furthermore, what seemed to be crucial for the drafters of the Damages Directive, this sort of analysis makes it possible to formulate certain conclusions with respect to the relationship between the effectiveness of private enforcement in a given State and the adopted principle of liability. The final conclusions understandably focus on the Polish example, that is, the implementation of the Damages Directive into the Polish legal system.
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Jones, Clifford A. "Private Antitrust Enforcement in Europe: A Policy Analysis and Reality Check." World Competition 27, Issue 1 (March 1, 2004): 13–24. http://dx.doi.org/10.54648/woco2004003.
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The right of individuals who have suffered loss from infringements of competition rules to bring private damages claims, long a mainstay of antitrust enforcement in the United States, is increasing in viability in the European Union as a result of judgments of the European Court of Justice, new legislation such as Regulation 1/2003, and numerous policy statements by the Commission and the European Parliament. Further remedies legislation may be forthcoming at EU or Member State level. However, some feel that private antitrust cases are undesirable from an economic and policy perspective and should be discouraged even as supplemental enforcement. This article argues that private enforcement has great value as a supplement to public enforcement and as the primary means of compensating victims of infringements whose interests are to be protected by national courts. Academic arguments against private enforcement based on misapplication of economic theory do not justify elimination or discouragement of private actions. The theoretical economic arguments presented in favour of such elimination or discouragement are weak, insufficient, and lack an observable basis in the real world.
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Hazelhorst, Monique. "Private Enforcement of EU Competition Law: Why Punitive Damages Are a Step Too Far." European Review of Private Law 18, Issue 4 (August 1, 2010): 757–72. http://dx.doi.org/10.54648/erpl2010060.
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Abstract: In 2005, the European Commission published a Green Paper on Damages Actions for Breach of the EC antitrust rules, which was followed up in 2008 by a White Paper on the same topic. In these documents, the Commission proposes measures to encourage the private enforcement of competition law. Their primary aim is to enable consumers to claim restitution of damages suffered as a result of a breach of European Union (EU) competition law. Many of the Commission’s proposals are inspired by antitrust enforcement in the United States, in particular the proposal to introduce double damages, a form of punitive damages, for horizontal cartels. This proposal received much criticism and was dropped in the 2008 White Paper. This article shows why the Commission was right in no longer pursuing the introduction of punitive damages as an enforcement method, by making a comparison between elements of US and EU competition law enforcements. After a thorough introduction to the topic, it is shown that there are both practical and substantive differences between EU and US enforcement methods, which mean that while punitive damages might be a very effective enforcement tool in the United States, this is not necessarily the case in the EU. Résumé: En 2005, la Commission Européenne a publié un Livre Vert sur Actions en dommages et intérêts pour infraction aux règles communautaires sur les ententes et les abus de position dominante, lequel a été suivi par un Livre Blanc sur le même dossier. Dans ces documents, la Commission a proposé des mesures pour encourager l’application des règles de concurrence par la sphère privée. Son objectif premier est de permettre aux particuliers de demander la compensation des dommages subits suite à une violation du droit de la concurrence de l’Union Européenne. Les propositions de la Commission sont inspirées par l’application du droit de la concurrence aux États-Unis, en particulier la proposition d’introduire les dommages doubles, un type de dommages punitifs, pour des cartels horizontaux. Cette proposition a été beaucoup critiquée puis retirée. Le présent article montre en quoi cette décision de la Commission est juste, en faisant une comparaison entre l’application du droit de la concurrence au sein de l’Union Européenne et aux États-Unis.
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Choi, Albert H., and Kathryn E. Spier. "Class Actions and Private Antitrust Litigation." American Economic Journal: Microeconomics 14, no. 3 (August 1, 2022): 131–63. http://dx.doi.org/10.1257/mic.20200059.
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When firms collude and charge supracompetitive prices, consumers can bring antitrust lawsuits against the firms. When the litigation cost is low, firms accept the cost as just another cost of doing business, whereas when the cost is high, the firms lower the price to deter litigation. Class action is modeled as a mechanism that allows plaintiffs and attorneys to obtain economies of scale. We show that class actions, and the firms’ incentive to block them, may or may not be socially desirable. Agency problems, settlement, fee-shifting, treble damages, public enforcement, and sustaining collusion through repeat play are also considered. (JEL D21, D24, D82, K15, K21, K41, L40)
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Di Giò, Alessandro. "Contract and Restitution Law and the Private Enforcement of EC Competition Law." World Competition 32, Issue 2 (June 1, 2009): 199–220. http://dx.doi.org/10.54648/woco2009020.
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In the context of private enforcement of competition law, most attention and efforts have been traditionally drawn to the area of tort law. Claims for tortious damages have recently been regarded as a crucial instrument for strengthening private enforcement also in EC antitrust law. This article aims to highlight that a significant role may also be played by contractual and restitutionary remedies. The article analyzes the following areas where such remedies might become relevant to the private enforcement of EC competition law: (1) disputes between co-contractors to an agreement prohibited by Article 81 in respect of the sanction of voidness and the related restitutionary claims; (2) anticompetitive agreements and the validity of subsequent contracts; (3) abuse of dominant position, abuse of economic dependence, and their relationship with contractual remedies against ‘unfair’ contracts. Arguably, the effectiveness of the Commission’s action, and most probably, the legal consistency and certainty of a future legal framework of European antitrust private litigation would be improved if contractual and restitutionary claims were dealt with in addition to tortious claims. Furthermore, a reflection on the above-referred issues may provide mutual sources of inspiration for the development of private enforcement of antitrust and for the debate on European harmonized contract law.
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Koenig, Carsten. "Comparing Parent Company Liability in EU and US Competition Law." World Competition 41, Issue 1 (March 1, 2018): 69–100. http://dx.doi.org/10.54648/woco2018004.
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It is a well-established principle of EU competition law that parent companies can be fined for antitrust infringements by their subsidiaries. Under the new EU Directive on Antitrust Damages Actions, parent company liability is likely to be extended to private antitrust litigation. In the United States, in contrast, no fines are imposed on parent companies unless they are directly involved in an antitrust infringement. Moreover, US courts are reluctant to hold parent companies directly or indirectly liable in private damages suits. Against this background, I explore in this article the striking difference between EU and US competition law with regard to parent company liability. I show that one of the main purposes of holding parent companies liable in EU competition law is to solve an underdeterrence problem that occurs when subsidiaries lack sufficient assets to pay for fines or damages. I argue that the same function is fulfilled in US antitrust law by other enforcement instruments, in particular, the individual liability of managers and employees. On this basis, I conclude that primarily the existence of these functional substitutes explains why a need for parent company liability has not arisen in US antitrust law.
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Jurkowska-Gomułka, Agata. "Antitrust Damage Claims: A View From Efta Court." Market and Competition Law Review 3, no. 2 (October 1, 2020): 153–70. http://dx.doi.org/10.7559/mclawreview.2019.1829.
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Articles 101 and 102 TFEU have become a pattern for competition rules provided in Articles 53 and 54 of the EEA Agreement, which entered into force on 1 January 1994. Both EU competition law and EEA competition law can be enforced before national courts. Lodging damage claims in the EU was facilitated by Directive 2014/104/EU. The so-called Antitrust Damages Directive was highly inspired by the jurisprudence of the Court of Justice of the European Union. Although Directive 2014/104/EU has not been incorporated into the EEA law, damage claims resulting from violations of EEA competition rules are judged by national courts in the EEA Member States, which is why some aspects of private enforcement of competition law have become a point of interest for the EFTA Court, being – together with the Court of Justice of the European Union – the EEA court. Firstly, the article aims at checking if the EFTA Court jurisprudence on antitrust damage claims follows the guidelines formulated in the case law of the Court of Justice. Since the positive answer to this question is highly probable, secondly, the article aims at identifying the extent of the impact of EU jurisprudence in private enforcement cases on judgments of the EFTA Court. The article concludes that the EFTA Court’s activities regarding antitrust damage claims follow the route indicated by the Court of Justice of the European Union. Four identified judgments regarding – directly or indirectly – antitrust damage claims (Nye Kystlink, Fjarskipti, Schenker I and Schenker V), delivered by the EFTA Court, seem to strengthen its position as an institution that is able to guarantee a coherence between EEA and EU competition law. EFTA Court’s judgments in private enforcement cases are also a point of interest and reference for EU Advocates General and can become an inspiration for both EU and national case law.
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Sadrak, Katarzyna. "Arbitration Agreements and Actions for Antitrust Damages After the CDC Hydrogen Peroxide Judgment." Yearbook of Antitrust and Regulatory Studies 10, no. 16 (2017): 77–106. http://dx.doi.org/10.7172/1689-9024.yars.2017.10.16.4.
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On May 21st 2015, the Court of Justice of the European Union in CDC Hydrogen Peroxide decided whether the application of jurisdiction clauses in actions for damages impedes the effective enforcement of EU competition law. The CJ stayed silent, however, on how to treat arbitration clauses, which similarly to jurisdiction clauses, exclude a default court jurisdiction. The question of how to interpret arbitration agreements in the event of an antitrust violation and subsequent actions for damages remains thus unanswered. In light of the foreseen increase in private enforcement of EU competition law, this problem gains significance. This is because arbitration agreements may be frequently used to govern commercial relationships between antitrust infringers and their injured direct contractors. Against this background, the paper aims to analyse the consequences brought about by the existence of arbitration clauses in the event of actions for antitrust damages. It seeks to answer two questions: whether the claims for antitrust damages can be per se arbitrated, and whether the general arbitration clauses used by the parties to regulate their commercial relations cover the actions for antitrust damages. In order to address these problems, the papers draws attention to the CJ’s interpretation of jurisdiction clauses and the Polish experience of interpreting the scope of arbitration agreements in the field of unfair competition law. The paper reaches the conclusion that neither the arbitration nor EU law prevent arbitrating actions for antitrust damages. Whether a specific arbitration agreement covers actions for antitrust damages or not can be analyzed only with reference to the will of the parties interpreted under applicable national law. It is believed, however, that there are many reasons to adopt an arbitration-friendly interpretation of vague arbitration agreements.
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Benini, Caterina. "La localizzacione dell’illecito concorrenziale nel regime di Bruxelles: riflessioni alla luce della Sentenza FLYLAL II della Corte di Giustizia dell’Unione Europea = The localization of antitrust torts underthe Brussels regime: reflections in the light of the Judgment FLYLAL II of the Court of Justice of the European Union." CUADERNOS DE DERECHO TRANSNACIONAL 11, no. 1 (March 11, 2019): 693. http://dx.doi.org/10.20318/cdt.2019.4641.
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Riassunto: Nella sentenza flyLAL II la Corte di giustizia dell’Unione Europea ha affermato che un calo delle vendite provocato da un illecito concorrenziale costituisce il “danno” rilevante agli effetti della individuazione del giudice competente ai sensi dell’art. 5 n. 3 del regolamento (CE) n. 44/2001 (“Bruxelles I”) e ha ritenuto che tale danno vada localizzato nel paese in cui si trova il mercato interessato dagli effetti dell’illecito. Lo scritto, prendendo spunto da questa sentenza, esamina criticamente la disciplina internazionalprivatistica europea degli illeciti concorrenziali, soffermandosi sulle ricadute negative della stessa in termini di private antitrust enforcement. Dinnanzi a questo stato delle cose, la soluzione della Corte appare perseguire l’obiettivo di garantire coerenza tra la disposizione oggetto di pronuncia e l’art. 6, par. 3, lett. a), del regolamento (CE) n. 864/2007 (“Roma II”) sulla legge applicabile alle obbligazioni extracontrattuali derivanti da atti limitativi della concorrenza. Essa inoltre agevola il private enforcement del diritto della concorrenza, contribuendo al contempo alla funzione regolatoria del diritto internazionale privato nel contesto regionale dell’Unione Europea.Parole chiave: illeciti concorrenziali, foro speciale degli illeciti, localizzazione del danno, criterio del mercato, private antitrust enforcementAbstract: In the flyLAL II judgment, the Court of Justice of the European Union ruled that the loss of sales incurred as a result of antitrust tort can be regarded as “damage” for the purposes of identifying the competent jurisdictional authority pursuant to Art. 5 n. 3 of the Regulation (EC) n. 44/2001 (“Brussels I”) and ruled that such damage is localized in the country whose market was affected by the anticompetitive conduct. Taking that judgment as point of departure, this article critically analyses the EU private international law regime of antitrust torts, focusing on its negative impact on private antitrust enforcement. Given this state of affairs, the solution adopted by the Court seems to pursue the goal of consistency between the provision under scrutiny and Art. 6, par. 3, lit. a), of the Regulation (CE) n. 864/2007 (“Rome II”) on the law applicable to non-contractual obligations arising from acts restricting free competition. It also promotes the private enforcement of antitrust rules, thereby enhancing the regulatory function of private international law in the internal market.Keywords: antitrust torts, special jurisdiction in matters relating to tort, localization of the loss, market criterion, private antitrust enforcement.
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Polverino, Fabio. "A Class Action Model for Antitrust Damages Litigation in the European Union." World Competition 30, Issue 3 (September 1, 2007): 479–99. http://dx.doi.org/10.54648/woco2007030.
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This article reviews the legal and economic structure of the class action litigation model in the United States, as set forth by rule 23 of US civil procedure, exploring the requirements for obtaining class certification and maintaining a class action. I analyse a number of critical issues and inefficiencies connected to the adoption of class action as a tool for adjudicating controversies. The article, then, takes into consideration the issue of private antitrust litigation in the European Union, at the moment still underdeveloped. A Green Paper recently published by the EU Commission includes proposals for the adoption of private antitrust damages litigation in the EU, but, even suggesting the possible adoption of a collective action model, never mentions class action as a viable solution. I consider some of the questions raised by the EU Commission in the Green Paper. Relying on the fact that US courts have repeatedly stated that antitrust controversies are suitable for class action treatment, I consider whether the US model of class action litigation might provide, although in an amended version, a satisfactory answer to the problematic issues raised by the Green Paper and represent an efficient tool for the private enforcement of antitrust law in the European Union.
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Malnar, Vlatka Butorac. "Access to Documents in Antitrust Litigation – EU and Croatian Perspective." Yearbook of Antitrust and Regulatory Studies 8, no. 12 (2015): 127–60. http://dx.doi.org/10.7172/1689-9024.yars.2015.8.12.6.
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The paper analyses access to documents in cartel-based damages cases from the EU and Croatian perspective. It considers all relevant EU and Croatian legislation and case-law primarily focusing on the expected impact of the newly enacted Damages Directive. It is argued that the new rules on access to documents provided by the Directive will not necessarily have a significant impact on damages proceedings following cartel decisions issued by the Commission. This is due to the introduction of an absolute ban on the disclosure of leniency statements and settlement submissions via a ‘maximum harmonization’ rule. This conclusion is drawn from statistic figures showing that EU cartel enforcement rests solely on the leniency and settlement procedures. With that in mind, it is concluded that the Directive’s general, permissive rules on access to documents (other than leniency and settlement procedures) will not be applicable in most damages cases following the cartel infringement decision issued by the Commission. However, it is also observed that the Damages Directive’s new rules on access to documents may have the opposite impact on private enforcement in cases following infringement decisions issued by National Competition Authorities (NCAs) which do not rely as much on leniency in their fight against cartels as the Commission. The Directive’s general rule on access to documents will apply in jurisdictions such as Croatia, where all of its cartel decisions so far have been reached within the regular procedure. It is argued that the general access rule, coupled with other rules strengthening the position of claimants in antitrust damages proceedings, might actually be beneficial for both public and private enforcement in such jurisdictions
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Blažo, Ondrej. "Directive on Antitrust Damages Actions and Current Changes of Slovak Competition and Civil Law." Yearbook of Antitrust and Regulatory Studies 8, no. 12 (2015): 259–72. http://dx.doi.org/10.7172/1689-9024.yars.2015.8.12.12.
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Slovak competition law enforcement can be characterized by infrequency of leniency applications and near absence of private enforcement. As a result, the adoption of the Damages D irective is not likely to cause substantial breakthrough in Slovakia, be it with respect to the rate of leniency applications or in private enforcement. A comprehensive amendment of Slovak competition law took place in 2014. Changes introduced therein reflected, among other things, the practice of the European Commission regarding access to its file. A new approach was also introduced towards damages claims submitted against leniency applicants. The paper will first consider the question whether it is necessary to further redesign these new Slovak rules because of the adoption of the Damages Directive, or if they have been successfully pre-harmonized. Along with changes to Slovak competition law, procedural rules for civil courts were also re-codified. Hence the second part of this analysis will focus on the question if a new civil procedure framework, including obligatory harmonization, could foster private enforcement of competition law. Summarizing the resulting answers, the third question focuses on who could benefit from further changes to Slovak legislation – final consumers or enterprises that are involved in the production chain. Finally, will changes in Slovak legislation driven by the Directive be coherent with its overall legal system, or will they appear to be an odd and peculiar piece of legislation?
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Ramos, Maria Elisabete. "Private Enforcement and Opt-out System Risks, Rewards and Legal Safeguards." Yearbook of Antitrust and Regulatory Studies 11, no. 18 (2018): 85–114. http://dx.doi.org/10.7172/1689-9024.yars.2018.11.18.4.
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The EU Antitrust Damages Actions Directive does not include provisions for collective redress. Each EU member state is free to provide national regulation on this matter. The Portuguese legal system provided regulation on actio popularis since 1995. The ‘rational apathy’ of individual consumers may lead to non-reparation of damage and be of significant benefit for the company that is in breach of the law. The opt-out models solve the crucial economic problem caused by a large number of consumers or clients who have suffered a small loss because of competition law infringements. Under those circumstances, it is rational to be apathetic, because it can be foreseen that the cost of filing for compensatory damages will exceed the recovery obtained from the defendant. Such rational apathy of the parties injured by competition law infringements favours the wrongfully acting companies by not extracting their illegal gains from them. By not requiring the active consent of each of the claimants, the opt-out model is able to override rational apathy of consumers.
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Gulińska, Anna. "Collecting Evidence Through Access to Competition Authorities’ Files – Interplay or Potential Conflicts Between Private and Public Enforcement Proceedings?" Yearbook of Antitrust and Regulatory Studies 8, no. 12 (2015): 161–80. http://dx.doi.org/10.7172/1689-9024.yars.2015.8.12.7.
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Information asymmetry between claimants seeking damages for competition law violations and the alleged infringing undertaking(s) is a key problem in the development of private antitrust enforcement because it often prevents successful actions for damages. The Damages Directive is a step forward in the facilitation of access to evidence relevant for private action claims. Its focus lies on, inter alia, 3rd party access to files in proceedings conducted by national competition authorities (NCAs). The harmonization was triggered by the inconsistencies in European case-law and yet the uniform rules on access to documents held in NCAs’ files proposed in the Damages Directive seem to follow a very stringent approach in order to protect public competition law enforcement. The article summarizes the most relevant case-law and new provisions of the Damages Directive and presents practical issues with respect to its implementation from the Polish perspective
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Nascimbene, Bruno. "Interaction between Leniency Programmes and Damages Actions in Antitrust Law: Perspectives for Collective Redress." World Competition 36, Issue 2 (June 1, 2013): 269–83. http://dx.doi.org/10.54648/woco2013018.
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This article addresses the effectiveness of private antitrust enforcement and its relationship with public enforcement of competition law. In light of the recent initiatives taken by the European Commission, it is suggested that soft law instruments are incapable of guaranteeing a coherent approach, especially taking into consideration the need to balance the public and private interests involved in antitrust proceedings. This is particularly evident when appraising the links between actions for damages based on Article 101 TFEU and leniency programmes. The analysis of the case law of the EU courts and national tribunals reveals the tensions between the focus on cartels and the rights of competing undertakings and consumers to claim redress. The situation is hardly satisfactory given the differences in national regulations, on the one side, and the lack of binding EU measures, on the other. Hence, as advocated by the Commission in its Work Programme 2012, it appears preferable, and in line with the principle of subsidiarity, to harmonize domestic laws in this field via the adoption of a directive based on Article 103TFEU.
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Wurmnest, Wolfgang. "A New Era for Private Antitrust Litigation in Germany? A Critical Appraisal of the Modernized Law against Restraints of Competition." German Law Journal 6, no. 8 (August 1, 2005): 1173–89. http://dx.doi.org/10.1017/s2071832200014218.
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On July 1st, 2005, the 7th Amendment to the Law against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB) became effective. The modernization of the GWB was indispensable in bringing German law in line with Regulation (EC) No. 1/2003. Regulation 1/2003 decentralized the enforcement of EC competition rules and aimed to pave the way for effective private antitrust litigation in Europe. Thus far, private parties have invoked Art. 81 and 82 EC Treaty primarily as shield by arguing that certain agreements were void. Only in very few instances were those rules used as sword to sue infringers for injunctive relief or damages. To stimulate private enforcement, Regulation 1/2003 inter alia abolished the European Commission's exclusive power to exempt practices which are prohibited pursuant to Art. 81 (1) EC Treaty and entitled national competition authorities and courts to apply Art. 81 (3) EC Treaty. Moreover, it empowered the European Commission to make written submissions in antitrust cases pending before national courts. In line with the new European approach, the German legislature has overhauled the hitherto existing rules of German competition law considerably. This article will briefly describe the general changes brought by the reform and take a closer look at the amended rules relating to private antitrust litigation before German courts.
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Rodríguez Rodrigo, Juliana. "La responsabilidad extracontractual por ilícitos antitrust en Europa. Comentario del auto del Juzgado de lo Mercantil de Madrid, de 23 mayo 2018 = The non-contractual liability from European antitrust law infringements. Commentary ofdecision of Commercial Court of Madrid, of 23 may 2018." CUADERNOS DE DERECHO TRANSNACIONAL 11, no. 1 (March 11, 2019): 889. http://dx.doi.org/10.20318/cdt.2019.4664.
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Resumen: El Auto del Juzgado de lo Mercantil de Madrid, objeto de comentario en este trabajo, resuelve una declinatoria por falta de jurisdicción en un caso de reclamación de daños por un ilícito antitrust. El comportamiento anticompetitivo del que derivan los perjuicios, que ahora se reclaman, es el conocido como cártel de los camiones, que sancionó la Comisión Europea en el año 2016. Una de las víctimas de ilícito antitrust pide una indemnización por los daños y perjuicios sufridos por el hecho de haber tenido que pagar un sobreprecio en la compra de uno o varios camiones objetos del acuerdo colusorio. El Juzgado de lo Mercantil de Madrid rechaza la declinatoria por hallarse el domicilio de la demandada en territorio español.Palabras clave: aplicación privada del Derecho de la competencia, acciones follow on, cártel de los camiones, indemnización por daños derivados de un ilícito antitrust, foro del lugar del hecho ilícito, foro del lugar del daño.Abstract: The Decision of Commercial Court of Madrid, object of comment in this paper, resolves a declinatory for lack of jurisdiction in a case of claim of damages from European antitrust law infringement. The anticompetitive behavior from which the damages derive is known as the truck cartel, which was sanctioned by the European Commission in 2016. One of the victims of this behavior seeks compensation for the damages suffered by the fact of having to pay a surcharge in the purchase of one or more trucks that belong to scope of collusive agreement. The Commercial Court of Madrid rejects the declinatory because the defendant’s domicile is located in Spanish territory.Keywords: private enforcement of competition law, follow on actions, cartel of trucks, compensation for damages from European antitrust law infringement, forum of place in which the harmful event occurred, forum of place of damage.
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Poch, Albert. "El juego de la prescripción en el ejercicio de acciones judiciales de reclamación de daños y perjuicios derivadas de ilícitos contra la competencia = Dealing with the statute of limitation in claims for damages arising out of antitrust infringements." CUADERNOS DE DERECHO TRANSNACIONAL 11, no. 2 (October 1, 2019): 727. http://dx.doi.org/10.20318/cdt.2019.5016.
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Resumen: La transposición al ordenamiento español de la Directiva 2014/104/UE, mediante Real Decreto-Ley 9/2017, ha supuesto un avance significativo en la regulación de la prescripción de las acciones de responsabilidad civil por daños derivados de infracciones antitrust. Pese a los innegables beneficios que, en términos de seguridad jurídica, introduce la nueva normativa, en el presente artículo se examinarán las dudas que actualmente persisten a raíz del régimen transitorio, así como la eventual inefectividad de la regulación de la prescripción prevista en el Código Civil, para resarcir a los perjudicados de una infracción antitrust ex artículo 101 y 102 TFUE.Palabras clave: aplicación privada, acciones de daños, Directiva de daños, prescripción, acciones follow-on, Cogeco.Abstract: The transposition into Spanish legislation of Directive 2014/104/EU, by Royal Decree-Law 9/2017, has made important progress in the regulation of the statute of limitation in actions for damages arising out of antitrust infringements. Despite the undeniable benefits that the new regulation has provided in terms of legal certainty, this article will examine the doubts that currently persist as a result of the transitory regime, as well as the eventual ineffectiveness of the regulation of the prescription provided in the Civil Code, in order to compensate the victims of an antitrust infringements ex Article 101 and 102 FTEU.Keywords: private enforcement, damages actions, damages Directive, statute of limitation, follow- on claims, Cogeco.
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Wolski, Dominik. "The Type of Liability in Private Enforcement in Selected CEE Countries Relating to the Implementation of the Damages Directive." Yearbook of Antitrust and Regulatory Studies 10, no. 5 (2017): 69–84. http://dx.doi.org/10.7172/1689-9024.yars.2017.10.15.4.
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The article is devoted to the type of liability in selected CEE countries, namely those covered by the national reports drafted for the 2nd International Conference on Harmonization of Private Antitrust Enforcement: Central and Eastern European Perspective. The paper starts with preliminary remarks concerning the role of the type of liability in private enforcement of competition law and the Damages Directive. In the following sections of the article, the author discusses the manner of adopting the aforementioned element as a result of the implementation process in CEE Member States. The article is mainly based on the content of the relevant national reports, with a few references to issues beyond their scope. In the summary, the author formulates brief conclusions with respect to the implementation manner of the type of liability as well as provides general remarks concerning the role of the type of liability in competition-based private enforcement cases.
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Vlahek, Ana, and Klemen Podobnik. "Provisions of the Damages Directive on Limitation Periods and their Implementation in CEE Countries." Yearbook of Antitrust and Regulatory Studies 10, no. 5 (2017): 147–75. http://dx.doi.org/10.7172/1689-9024.yars.2017.10.15.8.
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The article analyses the provisions on limitation of antitrust damages actions set out in Directive 2014/104/EU 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. It presents (draft) implementing legislation of CEE countries from the perspective of their general rules on limitation, and the problems the Member States have faced in the process of transposing the Directive into their national legal systems. Within that, focus is placed upon the analysis of the types of limitation periods, their length and their suspension or interruption. In addition, the authors present the effects of the new limitation regime on the balance between the interests of the claimants and of the defendants, as well as on the relation between public and private antitrust enforcement.
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Petrucci, Carlo. "Subsidiarity in Directive 2014/104 EU on Damages Actions for Breach of EU Competition Law." European Public Law 23, Issue 2 (May 1, 2017): 395–421. http://dx.doi.org/10.54648/euro2017023.
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The article is concerned with subsidiarity in Directive 2014/104 EU on actions for antitrust damages. After providing an overview of private enforcement of competition law and subsidiarity in EU law, it examines the arguments presented by the Commission in the relevant Impact Assessments. While most of the arguments were based on the need to prevent adverse cross-border effects, of particular interest was the argument that Member States were slow or unresponsive in providing effective measures designed to compensate antitrust victims. Subsequently, it shows that the Commission’s assessment of the underlying problems was discretionary and played a pivotal role before the considerations on subsidiarity were made. On this basis, this article makes the case for subsidiarity to be understood as Member States’ constructive engagement in EU action, rather than constraint on EU action.
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Piszcz, Anna. "Compensatory Collective Redress: Will It Be Part of Private Enforcement of Competition Law in CEE Countries?" Yearbook of Antitrust and Regulatory Studies 10, no. 5 (2017): 223–50. http://dx.doi.org/10.7172/1689-9024.yars.2017.10.15.11.
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The article aims to compare and evaluate solutions with regard to compensatory collective redress existing in CEE countries. The author will attempt to illuminate obstacles and challenges to using collective redress as an avenue for antitrust enforcement in CEE countries, as well as possible advantages of the scrutinised legal frameworks. Besides focusing on national provisions, the article will draw on provisions of the Damages Directive and the Commission’s Recommendation on collective redress mechanisms. It will open up the field for de lege ferenda proposals also.
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Cleynenbreugel, Pieter Van. "Private Damages Actions in EU Competition Law and Restorative Justice: Towards a New Streamlined Institutional Framework?" Market and Competition Law Review 3, no. 2 (October 1, 2020): 15–49. http://dx.doi.org/10.7559/mclawreview.2019.1826.
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The transposition of Directive 2014/104 on private damages actions marks an important development in the setting up of a harmonised private competition law enforcement regime across different EU Member States. Coupled with deterrence-focused public enforcement, the European Union has taken a necessary and welcomed step towards enhancing justice for all those individuals and competitors damaged by competition law infringements. This article argues, however, that the current emphasis on balancing public and private enforcement of the European Commission focuses too little on the need and healing effects of restoration. At the same time, the Directive contains a promising restorative justice opening by virtue of its Article 18. Starting from that opening, the article will propose a more developed way forward, taking the form of the setup and development of so-called antitrust “trust funds”. Exploring the legal possibilities and limits of such funds, the article questions to what extent this approach could be a useful complementary way to overcome the limits identified. It will be submitted that, although it is legally possible to set up those trust funds under EU law, important practical questions have to be addressed prior to doing so. Having outlined the potential features and limits of this approach, the article additionally calls for more and comparative research to be performed in this area.
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Szendrei, Tamás. "Private enforcement of EU competition law under Directive 2014/104/EU on antitrust damages actions." Public Goods & Governance 2, no. 2 (December 30, 2017): 24–34. http://dx.doi.org/10.21868/pgng.2017.2.4.
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Varga, László Bánk, Bálint Gábor Kovács, Angéla Gábri, and Blanka Szupera. "Disclosure rules of the Antitrust Damages Directive: finding the balance between public and private enforcement." ERA Forum 20, no. 1 (February 14, 2019): 141–57. http://dx.doi.org/10.1007/s12027-019-00552-2.
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Massa, Claudia. "The Disclosure of Leniency Statements and Other Evidence under Directive 2014/104/EU: An Undue Prominence of Public Enforcement?" Market and Competition Law Review 2, no. 1 (April 1, 2018): 149–69. http://dx.doi.org/10.7559/mclawreview.2018.336.
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Directive 2014/104/EU contains detailed provisions related to the disclosure of evidence in actions for damages before national courts that seek to strike a balance between a claimant’s right to access evidence in support of its private damages claim and the protection of leniency programmes, which are some of the main tools of public antitrust enforcement. Articles 5 to 8 of the Directive create a “microsystem” of the law of the evidences, which is highly specialised and based on the central role of the judge and on the principle that private enforcement must not compromise public enforcement. The Directive tackles the information asymmetry that characterises competition law litigation by acknowledging the right for a claimant “to obtain the disclosure of evidence relevant to their claim, without it being necessary for them to specify individual items of evidence”. However, the obtainment of the disclosure of evidence is circumscribed by a number of conditions and exceptions. The Directive creates three lists of documents that are characterised by a different level of protection: the black list, the grey list and the white list. After giving an overview of all these provisions, the article will focus on the disclosure of leniency statements and settlement submissions, by analysing the case law of the ECJ before and after the entry into force of the Directive. It will be found out that while the Court has always been cautious, by affirming that it is necessary to weigh up, on a case-by-case basis, the respective interests in favour of disclosure of such documents and those in favour of their protection, the European Legislator preferred to unconditionally protect the efficiency of leniency and settlement programmes to the detriment of parties that suffered a harm, which have to find any possible way to support their damage claim in a context in which the information asymmetry and the difficulty of the factual and economic analysis are evident. It seems that, with Article 6(6), the European Legislator did not succeed in its goal of making it easier for victims of antitrust violations to claim compensation from the offender, which is the general aim of the Directive. In fact, not having the possibility to have access to leniency statements or settlement submissions in stand-alone actions, it is highly difficult to prove that they suffered harm. Therefore, victims can only wait until the competition authority adopts a final infringement decision in order to start a probably successful follow-on action. Overall, all provisions on disclosure of documents contained in the Directive contribute to make a big step forward in the private enforcement sector, except for the provisions of Article 6(6), which could have probably been less rigid. In fact, while the rule on the right to obtain the disclosure of evidence, together with the provisions on disclosure of documents contained in the grey list and in the white list, strike a fair balance between public and private enforcement and facilitate victims of antitrust violations in bringing actions for damages, the same thing cannot be affirmed for provisions on disclosure of documents contained in the black list.
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Davidow, Joel. "United States Antitrust Developments in the New Millennium." World Competition 24, Issue 3 (September 1, 2001): 425–42. http://dx.doi.org/10.54648/359608.
Full textAbstract:
US antitrust in the new millennium has been characterised both by successes and challenges. The successes include additional exposure of major international cartels, exposure of foreign corporate officials to US prison sentences for cartel activity, further adoption or strengthening of foreign antitrust systems, and deeper co-operation in regard to anti-cartel and merger control enforcement. Merger relief has become quite strict, with firm insistence on fix it first solutions that are quite certain to happen. Challenges include trying to win the Microsoft case on appeal, learning how to deal with private actions involving damages stemming from worldwide cartels and curbing the runaway proliferation of merger control systems that lay too many burdens on largely unobjectionable but highly international transactions. The new administration will undoubtedly continue many of the international initiatives of its predecessor, but is likely to be more sceptical of populist antitrust approaches such as vertical cases or predatory practice monopolisation cases.
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Vaheesan, Sandeep. "Market Power in Power Markets: The Filed-Rate Doctrine and Competition in Electricity." University of Michigan Journal of Law Reform, no. 46.3 (2013): 921. http://dx.doi.org/10.36646/mjlr.46.3.market.
Full textAbstract:
State and federal initiatives have opened the American electric power industry to competition over the past four decades. Although the process has not occurred uniformly across the country, wholesale electricity markets exist everywhere today. Independent power producers can construct generation facilities and sell their output to utilities and industrial customers through bilateral contracts. In many regions, centralized power markets now facilitate the sale of billions of dollars in electricity annually through auctions. Although market forces have replaced direct price regulation in electricity, antitrust enforcement has not expanded its role commensurately. A lack of competition has been a serious problem in many power markets and led to billions of dollars in wealth transfers from ratepayers to generators. The federal courts, however, have invoked the filed-rate doctrine to prohibit private antitrust suits against generators and other market participants accused of collusive behavior. They have held that federal and state regulation is adequate to maintain competitive markets and questioned their own ability to deter anticompetitive behavior, effectively immunizing power generators from antitrust damages liability. Congress or the Supreme Court should limit the application of the filed-rate doctrine in electricity markets and allow for the antitrust laws to be enforced against collusive conduct. Eliminating the filed-rate immunity, however, is not sufficient to create competitive power markets. Private treble-damages suits could help deter express collusion between competing generators. Yet the antitrust laws are comparatively powerless to remedy two important types of anticompetitive behavior seen in power markets. Antitrust jurisprudence in the United States does not proscribe the exercise of unilateral market power and creates high hurdles to finding liability for tacit collusion. Given the limitations of traditional private antitrust remedies, federal and state regulators must focus on creating competitive market structures. They can take three concrete steps toward this end: police generator consolidation more carefully, encourage expansion of the transmission grid, and expose more ratepayers to wholesale price signals. Applying these broader competition policy measures is necessary to redeem a restructuring project that has resulted in several episodes of serious market-power abuse and yielded uncertain benefits.