Edited by Paul Nihoul and Tadeusz Skoczny
Chapter 8: Into the parallel universe: procedural fairness in private litigation after the Damages Directive
On 11 June 2013, the European Commission formally proposed a Damages Directive, the penultimate chapter in a legislative saga which had been stalled since 2009 when a draft directive was pulled from the Commission agenda on the eve of putative adoption, but which in a larger sense had been in the making since 1960. In its then-proposal to the Council with respect to what ultimately became Regulation 17, the Commission followed its mention of the sanctions (fines for non-compliance) with a statement concerning the civil consequences of violations: [t]o these sanctions may be added the eventual publicity of the decision and the inherent risks of the nullity of the understanding, and of damages which could be raised by third parties. On 17 April 2014, the Damages Directive agreed text (unusually, in English) was approved by the European Parliament under the ordinary legislative procedure and returned to the Council of Ministers for final adoption. Since the text was politically agreed, final adoption is expected to be non-controversial and to occur by the autumn of 2014. This chapter assumes final adoption will occur in due course. The coming into force of the Damages Directive in two years (from the date of final adoption) brings the 28 European Union members (and the EEA States) into what I call the ‘parallel universe’of antitrust litigation.
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