Competition Damages Actions in the EU

Competition Damages Actions in the EU

Law and Practice

Elgar Competition Law and Practice series

David Ashton and David Henry

Competition Damages Actions in the EU offers a clear and concise analysis of the latest case law, legislation and policy documentation in the field of damages actions for breach of EU competition law. Highly topical, the authors explore the problems of indirect purchaser standing and passing-on, evidentiary issues such as access to documents, and questions of jurisdiction and applicable law in claims based on an infringement of EU competition law.


David Ashton and David Henry

Subjects: law - academic, competition and antitrust law, european law, law -professional, competition and antitrust law, european law


The aim of this chapter is to give a brief introduction to certain evidentiary issues which are key to any attempt to bring a damages action for breach of EU competition law. As explained in Chapter 2, damages actions for breach of competition law are tortious in nature. As with all actions for tortious liability, the claimant has to prove the infringement, identify the causal link between the infringement and his loss and quantify that loss. A peculiarity of competition law litigation is that proof of the infringement can often be adduced from a decision by the public authority. In terms of proving the infringement, access to evidence held either by a competition authority or another party, including the defendant, is crucial. Access to documents may prove particularly important in the current enforcement climate. For example, conscious of the extensive resources required to deal with cartel cases, the Commission of late has initiated a drive to settle cartel cases under its settlement programme. A corollary of this is that publicly available decisions will likely henceforth contain only limited information that can be relied upon in follow-on damages actions, rendering them more difficult to substantiate. Apart from the critical issue of access to documents, the evidential value of public enforcement decisions can circumvent the requirement to prove the infringement in so-called ‘follow-on’ actions, thus lightening the evidential burden on a claimant.

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