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?

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.

Part II The Member State Reports on Transposition of the Directive, 5 France

This chapter examines how the Antitrust Damages Directive has been transposed in France. It begins with an overview of the transposition procedure, focusing on the French private enforcement context from the Ordinance of 1 December 1986—the ‘Magna Carta’ of French competition law—to Law no. 2008-776 of 4 August 2008 and the Consumer Law Act of 17 March 2014 (Hamon Law). It then discusses the scope of the transposition measure, noting that the French government went beyond the Directive and instituted a single regime for damages actions, before analysing specific issues that arose during the transposition, including those relating to the concept of an undertaking, the binding effect of competition authorities' decisions, the presumption of harm, the passing-on of overcharges, types of harm and assessment of damages, joint and several liability and the recovery of contributions from co-infringers, consensual dispute resolution, time-barring deadlines, access to evidence, and class actions.

Part II The Member State Reports on Transposition of the Directive, 9 Ireland

This chapter examines the transposition of the Antitrust Damages Directive in Ireland. It first considers the transposition procedure, focusing on regulations contained in Statutory Instrument (SI) European Union (Actions for Damages for Infringements of Competition Law) Regulations 2017, before discussing the regime set out in this implementing SI. It then describes the scope of the national regime on competition law and the implementing regulations that govern full compensation, disclosure of evidence, the effect of decisions by National Competition Authorities, limitation periods, joint and several liability, the issues of ‘passing on’, the presumption and quantification of damages by cartels, and consensual dispute resolution. Finally, the chapter analyses incorrect or incomplete transposition and possible legal disputes with regard to the Directive and the implementing regulations.

Part II The Member State Reports on Transposition of the Directive, 16 Spain

This chapter examines the transposition of the Antitrust Damages Directive in Spain. It begins with a general overview of the transposition process, focusing on the Transposition Decree that inserts new articles in the Defence Competition Act of 2007 and in the Civil Procedure Act. It then describes the material, territorial, and temporal scope of the Transposition Decree before analysing the main issues concerning antitrust damages claims affected by the Transposition Decree or that may be relevant in future actions for damages, such as those relating to the jurisdiction of competent courts to decide damages claims based on infringements of competition law, the right to full compensation, joint and several/parental liability, passing-on of the harm and claims by indirect purchasers/suppliers, the limitation period for bringing damages claims, the use of alternative dispute resolution procedures, measures to facilitate claims, and collective claims and consumer redress.

Part III Comparative Analysis of the Transposition Processes and Outcomes, 20 Transposition: Key Issues and Controversies

This chapter examines how the Member States have addressed most of the key issues and controversies arising from the transposition of the Antitrust Damages Directive within their respective legal systems. It first considers the substantive grounds and conditions for liability, highlighting several legal debates that are likely to arise in the context of liability, such as those relating to fault, the characterization of the type of liability in question and the consequences thereof, and the liability of the parent company. It then discusses joint liability, particularly the liability of immunity recipients and of small to medium-size enterprises, and issues concerning access to evidence, specialized courts that would hear antitrust damages actions, limitation periods, the binding force of public enforcement decisions, the right to full compensation, quantification of harm, passing-on, consensual dispute resolution (settlements and alternative dispute resolution), and collective redress.

Part II The Member State Reports on Transposition of the Directive, 8 Hungary

This chapter examines the transposition of the Antitrust Damages Directive in Hungary. It begins with an overview of the transposition procedure, focusing on the Hungarian private enforcement landscape and the transposition process. In particular, it considers how the provisions implementing the Directive were built into the Hungarian Competition Act (HCA), creating a special regime that departs in certain aspects from the general principles of Hungarian civil law and civil procedure (e.g., access rules, calculation of damages). The chapter goes on to discuss the scope of the Hungarian implementing provisions as well as specific issues that arose during the transposition, including those relating to time-barring deadlines, binding force of decisions of other Member States, parent company liability, presumption and quantification of damages by cartels or other antitrust infringements, distribution of liability between co-infringers and right of return between co-infringers, access rules, collective redress, and organization of the judicial system.

Part II The Member State Reports on Transposition of the Directive, 4 Cyprus

This chapter examines how the Antitrust Damages Directive has been transposed in Cyprus. It begins with a discussion of the transposition procedure, focusing on the Cypriot competition regime as well as the state of private enforcement in Cyprus. In particular, it provides an overview of the law currently in force against anticompetitive agreements and abuse of dominant position, the Protection of Competition Law of 2008 (13(I)/2008), as amended in 2014 (Law 41(I)/2014) (Cypriot Competition Act), and the provisions relevant to private competition law enforcement. The chapter then considers the history and the different steps of the transposition process before describing the scope of the transposition measure. It also analyses the different provisions of the Cypriot Damages Act and issues that arose during the transposition, such as parent company liability, the binding force of decisions of competition authorities of other Member States, and presumption and quantification of damage caused by cartels or other antitrust infringements.

Part II The Member State Reports on Transposition of the Directive, 3 Belgium

This chapter examines the transposition of the Antitrust Damages Directive in Belgium. It first considers the transposition procedure, noting Belgium’s Act of 6 June 2017 inserting a Title 3 ‘The action for damages for infringements of competition law’ into Book XVII of the Code of Economic Law, and the role of the Belgian Competition Authority. It then provides an overview of the substantive and temporal scope of the new rules of Book XVII, Title 3 of the Code of Economic Law before discussing terminological differences between the Directive and its transposition. It also explains how the transposition of the Directive facilitates access to documents, and goes on to analyse the effect of decisions of competition authorities, time-barring deadlines, solidary liability, passing-on of overcharges, presumption and quantification of damage by cartels or other antitrust infringements, consensual dispute resolution, collective redress for infringements of competition law, and parent company liability.

Part II The Member State Reports on Transposition of the Directive, 18 United Kingdom

This chapter focuses on the transposition of the Antitrust Damages Directive in the United Kingdom. It first provides a general background on the transposition process, with emphasis on developments in relation to private litigation involving both UK and EU competition law in the UK courts. It then considers the substantive and temporal scope of the UK transposition measure before analysing some of the specific issues concerning implementation of the Directive, such as those relating to limitation periods, binding force of competition authority decisions, disclosure and protection of certain documents/admissability of evidence, presumption of harm and quantification of damages, passing-on defence and indirect purchasers, joint and several liability, parent company liability, consensual dispute resolution, collective redress, litigation costs and funding, and specialised court structure.

Part III Comparative Analysis of the Transposition Processes and Outcomes, 19 Transposition Context, Processes, Measures, and Scope

This chapter discusses the context, processes, measures, and scope of transposition of the Antitrust Damages Directive across 16 Member States. It first provides a general overview of the competition litigation context in MS, including Cyprus, France, Greece, Hungary, Italy, Spain, and the Netherlands, before considering the timescale for the Directive’s implementation. It then examines other particular aspects of the national processes involved in the adoption of the Directive transposition measures, including the authorities responsible for overseeing the implementation, as well as the form, level, and extent of consultation undertaken with interested parties and stakeholders. The chapter also analyses the nature of the transposition measures adopted across the Member States, key aspects of the debates and issues surrounding the substantive and temporal scope of the Directive’s application, and the difficulties that might arise in the interpretation of transposition measures by the national courts.