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.

Chapter 7: PRIVATE INTERNATIONAL LAW ASPECTS

David Ashton and David Henry

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

Extract

This chapter deals with the questions of jurisdiction and applicable law in claims based on an infringement of EU competition law. Competition-based litigation will often feature a single infringement whose effects cut across national boundaries. The international nature of the underlying infringement of substantive law is at odds with the national remedial and procedural rules for the enforcement of obligations arising out of that substantive law. For this reason, rules on jurisdiction and applicable law are important for such litigation. Jurisdiction will determine which court will hear the case. As courts in principle will always apply their own procedural law, rules on jurisdiction will determine the procedural conditions under which a claim for damages based on an infringement of EU competition law will be brought. Rules on applicable law will determine the substantive civil law which will provide the conditions for the claim. In the current state of EU law, there exists a set of harmonised rules concerning jurisdiction in civil litigation. There is also a harmonised set of rules on applicable law in non-contractual disputes, adopted on 11 July 2007, and which has applied since 11 January 2009. This chapter will examine how these rules apply to damages claims based on an infringement of EU competition law. It should be borne in mind that in the Empagran proceedings, the US Supreme Court ruled that the Foreign Trade Antitrust Improvements Act precluded foreign purchasers from bringing damages actions in the US, where injury is independent of any adverse domestic effect.

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