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