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Edited by Pier L. Parcu, Giorgio Monti and Marco Botta

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Pier Luigi Parcu, Giorgio Monti and Marco Botta

A long time has passed since Advocate General (AG) Geelhoed stated in his Opinion in Manfredi that ‘private enforcement of (competition law) in Europe is still in its infancy’. One decade after the landmark ruling of the Court of Justice of the European Union (CJEU), the number of antitrust claims in national civil courts has steadily increased, though major differences exist among the EU Member States. In particular, the UK, Germany and the Netherlands have become the preferred fora by claimants in cross-border actions, while the majority of the other Member States have not recorded many antitrust damages cases. In term of remedies, however, claimants often request either injunctive relief or contract invalidation, rather than damages. Finally, industrial customers, rather than final consumers, start most of the legal actions, even in the countries where private enforcement of EU competition law is more developed. During the past decade, the EU Commission has actively promoted damages actions for breaches of EU competition rules. During this period of time, the pendulum of the policy discourse followed by the EU executive branch has swung between the goal of increasing the number of damages claims in national courts on the one hand, and the idea of establishing a level playing field among the EU Member States in terms of applicable procedural rules, in order to discourage forum shopping on the other. In the initial 2005 Green Paper, the EU Commission emphasized that damages actions should ‘deter’ competition law violations.

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THE UNDERLYING RIGHT TO DAMAGES

Law and Practice, Second Edition

David Ashton

In its ruling in Crehan, the Court of Justice held that national courts must provide a remedy in damages for the enforcement of the rights and obligations created by Article 101 Treaty on the Functioning of the European Union (TFEU). The Court held, in sum, as follows: The full effectiveness of Article [101] of the Treaty and, in particular, the practical effect of the prohibition laid down in Article [101(1)] would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition. (emphasis added) The question of principle as to whether or not an undertaking is entitled to claim damages for loss suffered as a result of a breach of Article 101 TFEU was not answered specifically by the Court, but was merged with two other questions. Firstly, whether or not a party to a contract which is in breach of Article 101 TFEU may rely upon that article to seek relief from the other contracting party (the first question), and secondly, whether a rule of national law that ‘parties to an illegal agreement cannot claim damages from the other party for loss caused to him by being a party to the illegal agreement’ is compatible with EU law (the third question).Within this structure, the question of principle is the second question.

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QUANTIFICATION OF ANTITRUST DAMAGES

Law and Practice, Second Edition

Frank Maier-Rigaud and Ulrich Schwalbe

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David Ashton

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 [101] 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.

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EXTENDED TABLE OF CONTENTS

Law and Practice, Second Edition

David Ashton

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ESTABLISHING PARAMETERS TO CLAIMS: CAUSATION

Law and Practice, Second Edition

David Ashton

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.

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Edited by Weijer VerLoren van Themaat and Berend Reuder

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REGULATION (EU) NO 330/2010 ON VERTICAL AGREEMENTS

A Case Commentary, Second Edition

Edited by Weijer VerLoren van Themaat and Berend Reuder

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Edited by Weijer VerLoren van Themaat and Berend Reuder