The chapter explores the liability aspects that have not been harmonised by the Damages Directive, namely the need for the plaintiff to prove the presence of injury and fault by the defendant, as well as the liability of the parent company, calculation of the interest rate and the possibility for the national court to award punitive damages. Secondly, the chapter discusses how national courts may in the future ‘fill the gaps’ in relation to the non-harmonised issues. Rather over-burdening the Court of Justice via a large number of preliminary ruling requests, the chapter argues in favour of judicial DIY (i.e. ‘do it yourself’). By actively applying the principles of equivalence and effectiveness, in fact, national courts could achieve the same interpretation as that provided by the Court of Justice via its preliminary rulings. Finally, the chapter argues in favour of a reform of the current system of preliminary rulings, where a Member State could be subject to State liability if its last instance court does ask for a preliminary ruling.
It is common for scholars to look to judgments of the EU courts and to soft law to determine the scope of Article 102 TFEU. National courts of Member States in the EU also make extensive reference to the case law of the European courts in their judgments, as successive reviews confirm. In this chapter, a set of possible sources that allow us to see the use made of Article 102 is explored, and how far they may also be examined as sources of understanding Article 102. First, commitment decisions are examined: while these are not fully reasoned they contain sufficient information to teach us about theories of harm to allow us to say more about the possible reach of Article 102. Second, the chapter assesses the soft law adopted by the EU Commission, in particular the Guidance Paper on Article 102. It is suggested that the Guidance Paper is not irrelevant as a source of law, and that it may serve as a helpful restatement of certain aspects of the case law, but that certain passages should not be treated as sources of law. The key argument developed in the chapter is that national courts should interpret Article 102 in a dynamic manner. This is exemplified by the approach of the Court of Justice of the European Union (CJEU) and also by the approach taken by the courts in England and Wales. The case law from this jurisdiction also shows the benefits of what is termed here ‘critical deference’ to the judgments of the European courts. This approach affords the optimal method for developing EU competition law because it empowers courts at all levels to develop the law incrementally. Keywords: commitment decisions; Guidance Paper on Article 102; courts of England and Wales; CJEU
Fernando Pastor-Merchante and Giorgio Monti
The starting point of this chapter is the observation that State aid law assigns different tasks to national courts: they are in charge of enforcing the standstill clause of Article 108(3) TFEU (standalone enforcement); they are also in charge of enforcing Commission decisions in this area (follow-on enforcement); finally, they are also in charge of monitoring compliance with the de minimis and block exemption regulations (a special form of standalone enforcement, insofar as it calls for a more sophisticated analysis of the measures under scrutiny, based on the criteria defined by secondary legislation). Thus, contrary to what is suggested by the buzzword ‘private enforcement’, national courts play different functions within the system of State aid control. The purpose of this chapter is to reflect on how the different ‘functions’ that national courts serve affect the way in which they discharge their task in terms of (i) the margin of discretion that they have, (ii) the type of remedies at their disposal and (iii) the way in which they administer these remedies (for example, the different methods that they use to calculate damages).
Pier Luigi Parcu, Giorgio Monti and Marco Botta
Since the Treaty of Rome, Art. 107 TFEU has regulated how the Member States can grant aid either to private or State-owned undertakings. Aid measures incompatible with Art. 107(1) may only be authorized by the European Commission if they fulfill one of the conditions mentioned in Art. 107(2) and 107(3) TFEU. Although the wording of the Treaty has not changed significantly over the past 60 years, the goals of State aid policy have progressively shifted. Similar to other free trade agreements, the EU founding fathers included State aid rules in the Treaty of Rome in order to avoid a subsidies war among the Member States—a war that could have distorted free competition within the internal market. State aid rules were thus initially conceived as a complementary instrument to the free movement rules. In addition, State aid law was also complementary to competition policy, since the provisions concerning both policies were included in the same chapter of the Treaty, and were enforced by the same institution—that is, DG Competition of the European Commission.
Emerging Trends at the National and EU Level
Edited by Pier L. Parcu, Giorgio Monti and Marco Botta
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.