Now also available as eBook, click
here to buy and download your copy
Since the seminal judgment of the European Court of Justice in Courage v.
Crehan (2001), a right to damages is available not only to individuals (i.e.
companies) acting against the Member States, but also to individuals acting
against each other, as a result of the direct effect of Article 101 of the
Treaty on the Functioning of the EU. However, it is only since the
Commission’s 2008 White Paper on Damages that a real impetus to the ‘private
enforcement’ implied by this decision has taken place. If the White Paper is
converted into legislation, it will have profound implications on the way both
EU competition law and European (EU or national) private law functions. It is
the provocative thesis of this book that the Commission’s struggle for a more
‘effective’ system of private enforcement has gone from being a mere
enhancement of a single EU policy (competition) to slowly but surely fuelling
a paradigm shift in EU law. In an absorbing and richly detailed analysis of
this thesis, the author examines such controversial and complex issues facing
private enforcement of competition law in the EU as the following:
• the binding effect of competition authority decisions on a civil proceeding;
• the pass-on defence and standing of indirect purchasers;
• distinguishing between restitution and compensation;
• arguments defining the ‘right’ plaintiff’;
• national procedural autonomy;
• containing the ‘spill-over’ effect; and
• assessing a unified competition litigation system.
The discussion of these issues and others underscores their tendency, as the
result of gradual judicial development, to make damages claims in the EU more
likely to be brought, more likely to be won, and more beneficial to the
plaintiff if won. The forceful implication is that these issues carry much
broader implications than mere efficiency in the context of the competition
rules; rather, they have a profound impact on the wider issues of access to
justice and the right to a fair trial in the Union’s legal order. Through the
perception of ‘private enforcement’ of EU competition law as an enduring legal
and socio-political reality that is likely to remain, this book sheds new and
powerful light on EU constitutional law and the ever-expanding influence of EU
law on (largely national) private law. Although the practical availability of
damages in national judicial fora is an issue which is still very far from
being satisfactorily resolved, this far-reaching study reveals a trend that
seems virtually inevitable, and will be of enormous interest to academics and
policymakers concerned not only with competition law but with the very basis
of EU law.
Introduction. 1. Competition Law and Enforcement. 2. Commission
Initiatives: From the Deringer Report to the Modernisation Regulation. 3
. The Rise of the Right to Damages. 4. Developing the Right to Damages.
5. The Concepts of Liability, Legal Basis and Fault. 6. Damage,
Damages and Causation. 7. Nullity. 8. Restitution. 9.
Pass-on, Indirect Purchasers and Antitrust Injury: ‘The Right Plaintiff’ under
US Law. 10. The ‘Right Plaintiff’ under EU Law. 11.
The ‘Binding Effect’ of Commission Decisions. 12. The
Binding Effect of Decisions of National Competition Authorities. 13.
Legislating the Right to Damages. 14. General Conclusions and a
Possible Additional Option. Bibliography.