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Steen Treumer and Mario Comber
This chapter analyses the implementing legislation and the variations in the national legal systems, in section 2. The section includes analysis of preparatory works as a legal source that has proven to be of particular importance due to the substantial variations in the legal systems of the Member States. Goldplating and questionable legislation are considered in section 3 and selected issues of implementation (exclusion, competitive procedure with negotiation, contract changes) in section 4. The latter section also covers the Member States’ approach to the implementation of the recitals to the Directive. Section 5 relates to a range of provisions of the Directive that allow the Member States to implement various options and aims. Final conclusions are found in section 6
Law and Practice, Second Edition
In the absence of strict limitations on standing, the indirect nature of some of the harm in antitrust claims means that other defining features of tortious actions, such as causation, are put to the test. Causation is a legal means of supplying parameters to liability in such circumstances. Quantification of harm could be seen as an economic means of achieving the same result. The standard approach to causation involves distinguishing between so-called ‘factual causation’ and so-called ‘legal causation’. Broadly speaking, the former is an investigation into the factual chain of events which connect the infringement and the harm suffered. It is often described as a but-for test or, more elegantly, a conditio sine qua non. The latter is essentially the imposition of policy limitations on claims by courts. The essential idea behind the conditio sine qua non approach to causation is that without the occurrence of the infringement, the claimant would not have suffered the harm pleaded. Furthermore, causation acts as a parameter to claims in that it helps to determine which party should be held liable for the damage suffered. Thus, it looks in both directions: towards the claimant, who has to show a link between the infringement and the damage he or she has suffered, and towards the defendant, in that helps to attribute liability for the damage.
PROCEDURAL ISSUES: PROCEDURES FOR RECOURSE TO THE EXPERTISE OF PUBLIC AUTHORITIES BY THE NATIONAL COURTS
Law and Practice, Second Edition
Article 15(1) of Regulation (EC) No 1/2003 empowers the national court to ask the Commission to transmit to it information within the possession of the Commission whenever the court is applying Article 101 or 102 of the Treaty on the Functioning of the European Union (TFEU). Article 15(1) is referred to in recital 15 to the Directive, which states that where a national court wishes to order the Commission to disclose evidence in its file, that provision applies. Article 15(1) also empowers the national court, in the same circumstances, to ask the Commission for its opinion on questions concerning the application of the EU competition rules. Article 15(3) of Regulation (EC) No 1/2003 empowers the Commission to make written submissions to the court of any Member State on its own initiative ‘[w]here the coherent application of Article  or [102 TFEU] so requires’ (so-called ‘amicus curiae’ briefs). Under the same provision, it may make oral submissions with the permission of the court. The Commission has exercised the power to make ‘amicus curiae’ briefs on a number of occasions. On its website, DG COMP maintains a list of opinions given pursuant to Article 15(1), as well as submissions made pursuant to Article 15(3). In addition to the specific mechanisms laid down by Regulation (EC) No 1/2003, national courts can make a reference to the Court of Justice for a preliminary ruling under Article 267 TFEU.