scholarly journals Room to Manoeuvre for Member States: Issues for Decision on the Occasion of the Transposition of the Damages Directive

2019 ◽  
Vol 1 (1) ◽  
pp. 81-109 ◽  
Author(s):  
Anna Piszcz
Keyword(s):  
Institutional Design ◽  
Competition Law ◽  
Short Review ◽  
The Other ◽  
Private Enforcement ◽  
Member States ◽  
Is Implementation ◽  
Collective Redress ◽  
Eu Directives ◽  
National Legislatures

Soon Member States will bring into force the laws, regulations and administrative provisions necessary to comply with the Damages Directive (2014/104/EU). Usually Member States do not seem willing to introduce a broader scope of the application of principles embodied in EU directives. For Member States, “copy-pasting” a directive's content into a piece of national legislation is one of the simplest ways to implement a directive (another very simple one is implementation by reference; it is just referring the reader to the directive and should not be applied where the rules in a directive are not sufficiently precise, so it is not applied very often). Member States that work on the implementation of the Damages Directive either do it in a minimalist manner, mainly "copy-pasting" its content, or take the legislative opportunity to do something more and "tidy up" domestic provisions on the occasion of the transposition of the Directive. Some Member States have chosen that last option. The article attempts to highlight some of the considerations that may be of particular relevance in this process, with the aim of formulating some recommendations for national legislatures, even though implementation works are drawing to a dose. First, some “spontaneous harmonisation” of a scope broader than that provided for in the Directive is recommended on the background of the material (substantive) scope of the Directive and its transposition. The other important considerations are addressed to the personal scope of the Directive and its transposition. Finally, the short review of some more detailed issues for decision on the occasion of the transposition of the Directive is offered. Considerations regarding the principle of civil liability, the use of collective redress mechanisms, minimum harmonisation clauses, institutional design of private enforcement of competition law, as well as incentives to voluntarily provide compensation to injured parties can be found therein.

scholarly journals THE PRESUMPTION OF HARM IN EU PRIVATE ENFORCEMENT OF COMPETITION LAW: EFFECTIVENESS VS OVERCOMPENSATION

2021 ◽  
Author(s):  
Lena Hornkohl
Keyword(s):  
Comparative Analysis ◽  
Competition Law ◽  
Main Issue ◽  
Private Enforcement ◽  
Member States ◽  
Collective Redress ◽  
Eu Competition Law ◽  
Clear Statement

The main issue that is still disrupting private enforcement of competition law is the calculation of damages. The 2014 Damages Directive contains some alleviations. Particularly Article 17(2) Damages Directive foresees a rebuttable presumption that cartels cause harm. Despite the clear statement in Recital 47 Damages Directive that this presumption should not cover the concrete amount of harm and studies that vary significantly regarding the typical overcharge, some Member States have created presumptions related to the amount of harm. Other Member States want to expand the presumption to non-cartel violations. This article takes a comparative analysis of the different Member States approaches and attempts to test the Damages Directive and EU competition law boundaries more generally. The article takes a sceptical perspective on some of the Member States’ approaches and proposes other solutions to ease the predicaments of damage quantifications: (i) a focus on illicit gains, (ii) amending the calculation guidelines and create a EU-wide competition damages database, (iii) create further procedural measures, such as collective redress instruments, special legal venues for private enforcement of competition law and expert judges, and (iv) foster further party-led solutions.

Part I EU Competition Law Private Enforcement and the Antitrust Damages Directive, 2 Promotion and Harmonization of Antitrust Damages Claims by Directive 2014/104/EU?

2018 ◽  
Author(s):  
Rodger Barry ◽  
Ferro Miguel Sousa ◽  
Marcos Francisco
Keyword(s):  
Law Enforcement ◽  
Dispute Resolution ◽  
Competition Law ◽  
Private Enforcement ◽  
Eu Law ◽  
Legal Basis ◽  
Member States ◽  
Competition Law Enforcement ◽  
Eu Competition Law

This chapter explains the contents and goals of the Antitrust Damages Directive (Directive 2014/104/EU), the corollary of the EU’s policy towards the promotion and facilitation of private enforcement of competition law. It first traces the evolution in EU competition law enforcement and policy that led to the adoption of the Directive before considering the goals of the Directive in more detail, namely to provide rules for the effective compensation of victims of antitrust infringements and to harmonize some rules concerning damages claims. It then examines the Directive’s legal basis under EU Law as well as substantive provisions, including those relating to compensatory principles, quantification of harm, and consensual dispute resolution. The chapter goes on to highlight neglected issues, limitations, and inherent biases regarding the scope and nature of the Directive’s rules and concludes with an analysis of issues arising from implementation of the Directive in Member States.

scholarly journals The Scope of the Implementation of the Damages Directive in CEE States

2017 ◽  
Vol 10 (5) ◽  
pp. 13-29
Author(s):  
Michal Petr
Keyword(s):  
Czech Republic ◽  
Competition Law ◽  
Private Enforcement ◽  
Eastern European ◽  
Member States ◽  
The Czech Republic ◽  
Dominant Position ◽  
Eu Member States ◽  
Eastern European Countries ◽  
Limited Scope

The Damages Directive has a rather limited scope, focusing only on damages claims stemming from anticompetitive agreements or abuse of a dominant position, provided such conduct was able to affect trade between EU Member States. However, Member States are not limited by this scope and so they may decide, when implementing the Directive, to enhance not only claims for damages, but the overall private enforcement of competition law. In this article, we shall explore the scope of the implementing legislation of selected Central and Eastern European Countries, namely in Bulgaria, Croatia, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia.

scholarly journals Institutional Challenges for Private Enforcement of Competition Law in Central and Eastern European Member States of the EU

2017 ◽  
Vol 10 (5) ◽  
pp. 31-47
Author(s):  
Ondrej Blažo
Keyword(s):  
Competition Law ◽  
Private Enforcement ◽  
Eastern European ◽  
Member States ◽  
National Competition ◽  
Uniform Model ◽  
Court Proceedings ◽  
Institutional Challenges ◽  
The Given ◽  
The Eu

The paper will focus on requirements and thresholds set for the judiciary by the Damages Directive. Answered will also be questions on the specialization of courts and its application in Central and Eastern European (CEE) Member States of the EU, as well as on the involvement of national competition authorities (NCAs) in court proceedings. The paper provides also general thoughts regarding the specialization of courts and confronts them with the judiciary structure in CEE Member States in the context of private enforcement of competition law. While there is no uniform model of a judicial system, the paper provides a critical analysis of the centralization, specialization and decentralization of private enforcement models, taking into account also the importance of the training of judges. The relationship between NCAs and courts will be discussed whereby the role of NCAs in private enforcement defines the responsibility of the given public authority in private enforcement as a country’s policymaker.

scholarly journals The Damages Directive and Consensual Approach to Antitrust Enforcement

2015 ◽  
Vol 8 (12) ◽  
pp. 181-194
Author(s):  
Raimundas Moisejevas
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Competition Law ◽  
Mediation Process ◽  
Private Enforcement ◽  
Member States ◽  
Legal Costs ◽  
To Receive ◽  
The Eu ◽  
Consensual Approach

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

8. Articles 101 and 102: private enforcement in the courts of Member States

2018 ◽  
Author(s):  
Richard Whish ◽  
David Bailey
Keyword(s):  
Intellectual Property ◽  
Competition Law ◽  
Property Right ◽  
Intellectual Property Right ◽  
Private Enforcement ◽  
Eu Law ◽  
Extensive Experience ◽  
Breach Of Contract ◽  
Member States ◽  
The Uk

This chapter describes the private enforcement of Articles 101 and/or 102 as a matter of EU law, with particular emphasis on the Damages Directive. It also deals with the extensive experience of private actions in the UK courts. The chapter considers the use of competition law as a defence, for example to an action for breach of contract or infringement of an intellectual property right. The chapter concludes with a brief discussion of issues that can arise where competition law disputes are referred to arbitration rather than to a court for resolution.

Towards a harmonised collective redress mechanism for the private enforcement of EU competition law

ERA Forum ◽  
2020 ◽  
Vol 21 (2) ◽  
pp. 267-281
Author(s):  
Blanka Szupera ◽  
László Bánk Varga ◽  
Angéla Gábri ◽  
Bálint Gábor Kovács
Keyword(s):  
Competition Law ◽  
Private Enforcement ◽  
Collective Redress ◽  
Eu Competition Law

scholarly journals Winner of the SLS Annual Conference Best Paper Prize 2013: Bogeymen, lunatics and fanatics: collective actions and the private enforcement of European competition law

Legal Studies ◽  
2014 ◽  
Vol 34 (1) ◽  
pp. 1-23 ◽  
Author(s):  
Bruce Wardhaugh
Keyword(s):  
Competition Law ◽  
Legal Culture ◽  
Class Action ◽  
Private Enforcement ◽  
Annual Conference ◽  
Collective Actions ◽  
Class Actions ◽  
Collective Redress ◽  
Authority Figures ◽  
European Competition Law

The European desire to ensure that bearers of EU rights are adequately compensated for any infringement of these rights, particularly in cases where the harm is widely diffused, and perhaps not even noticed by those affected by it, collides with another desire: to avoid the perceived excesses of an American-style system of class actions. The excesses of these American class actions are in European discourse presented as a sort of bogeyman, which is a source of irrational fear, often presented by parental or other authority figures. But when looked at critically, the bogeyman disappears. In this paper, I examine the European (and UK) proposals for collective action. I compare them to the American regime. The flaws and purported excesses of the American regime, I argue, are exaggerated. A close, objective examination of the American regime shows this. I conclude that it is not the mythical bogeyman of a US class action that is the barrier to effective collective redress; rather, the barriers to effective, wide-ranging group actions lie within European legal culture and traditions, particularly those mandating individual control over litigation.

scholarly journals Piecemeal Harmonisation Through the Damages Directive? Remarks on What Received Too Little Attention in Relation to Private Enforcement of EU Competition Law

2015 ◽  
Vol 8 (12) ◽  
pp. 79-98
Author(s):  
Anna Piszcz
Keyword(s):  
European Commission ◽  
Competition Law ◽  
Decision Makers ◽  
Private Enforcement ◽  
Antitrust Enforcement ◽  
Member States ◽  
European Approach ◽  
National Courts ◽  
Eu Competition Law ◽  
The Eu

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

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