Law and Practice
The aim of this chapter is to give a brief introduction to certain evidentiary issues which are key to any attempt to bring a damages action for breach of EU competition law. As explained in Chapter 2, damages actions for breach of competition law are tortious in nature. As with all actions for tortious liability, the claimant has to prove the infringement, identify the causal link between the infringement and his loss and quantify that loss. A peculiarity of competition law litigation is that proof of the infringement can often be adduced from a decision by the public authority. In terms of proving the infringement, access to evidence held either by a competition authority or another party, including the defendant, is crucial. Access to documents may prove particularly important in the current enforcement climate. For example, conscious of the extensive resources required to deal with cartel cases, the Commission of late has initiated a drive to settle cartel cases under its settlement programme. A corollary of this is that publicly available decisions will likely henceforth contain only limited information that can be relied upon in follow-on damages actions, rendering them more difficult to substantiate. Apart from the critical issue of access to documents, the evidential value of public enforcement decisions can circumvent the requirement to prove the infringement in so-called ‘follow-on’ actions, thus lightening the evidential burden on a claimant.
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