(p. 1019) 14. Private Enforcement
1. In Chapter 13 it is seen that the Commission and the national competition authorities (NCAs) play a crucial role in detecting, halting, deterring, and punishing violations of EU competition law.
2. This chapter focuses on private enforcement, which may supplement public enforcement by helping to ensure infringements of the rules are brought to an end, violations are deterred, and that the law is developed and clarified. It can also achieve corrective justice by allowing victims to obtain compensation.
3. Prior to the adoption of the Damages Directive (Directive 2014/104/EU) in November 2014, no EU legislation specifically addressed private rights of action for breach of Articles 101 and 102. In a series of judgments, however, the EU Courts made it clear that EU law requires national courts to:
(a) apply directly effective provisions of EU law, including Articles 101 and 102;
(b) ensure that their decisions do not run counter to those adopted by the Commission;
(c) render provisions in an agreement that contravene Article 101 (and it seems Article 102) void and unenforceable;
(d) ensure effective judicial protection of rights conferred by Articles 101 and 102 and that effective remedies are available to protect them. In particular, damages, entailing full compensation, must, in principle, be available to those that have suffered loss in consequence of a breach of Article 101 or 102. Further, in certain circumstances injunctions must be available to protect putative EU rights; and
(e) ensure effective judicial protection of rights. Although national rules govern such actions such rules (i) must not be less favourable than those relating to similar claims of a domestic nature and (ii) must not make it virtually impossible or excessively difficult to exercise the right that the national courts are obliged to protect (the principles of equivalence and effectiveness).
4. The Commission became concerned that the autonomy still conferred on national systems, and the obstacles to litigation existing in a number of Member States, meant that insufficient amounts of antitrust litigation were being brought by private individuals before national courts in the EU, especially actions for damages.
5. Following extensive consultation and debate, the Damages Directive was adopted. The Directive is designed to ensure full compensation for all antitrust victims, to create a level playing field across the Member States through partial harmonisation of national laws governing such claims, and to ensure the effective coordination of public and private enforcement. All Member States have now transposed it into their national laws.
6. The Directive is supplemented by a Recommendation of non-binding principles for collective redress mechanisms for the Member States and a practical guide on the quantification of harm for damages to assist national courts. The Commission also intends to provide quantification guidance in the form of Guidelines for national courts on the passing-on of overcharges. It is consulting on draft Guidelines, prepared with the assistance of a DG Comp Study on the Passing-on of Overcharges. (p. 1020)
7. Proposed legislation on an EU-wide framework for consumer redress (allowing consumer organisations to bring damages actions and strengthening collective redress mechanisms across the EU) is also working its way through the EU legislative process.
In order for the objectives of a competition law system to be achieved, effective enforcement of the rules must take place. Without it, the meaning of the law will not be developed and elucidated, breaches of the rules will not be halted, punished, or deterred, and victims of violations will not be compensated;1 ‘deterrence, compensation, and remediation’2 will not be ensured. A critical issue to be determined when designing or developing a competition law system is therefore how effective enforcement mechanisms can be established.
Chapter 13 examines public enforcement through the European competition network (the Commission and the national competition authorities (NCAs)). Public enforcers, however, have limited resources, which they may concentrate predominantly on ensuring that serious violations causing widespread harm to consumer welfare (such as cartels) are brought to an end and deterred. Accordingly they are not able to root out and prevent all violations of the rules or to ensure compensation for victims. Indeed, in the EU the Commission does not have power to award damages to those that have suffered loss in consequence of an antitrust infringement,3 although it has been active in trying to facilitate private actions by victims for compensation. Civil enforcement of the rules, through claims made by private litigants in the national courts and tribunals of the individual Member States (the national courts), may consequently also play a fundamental part in ensuring effective enforcement of the competition law rules. This chapter concentrates on private enforcement of the rules by those specifically affected by a competition law violation in the EU and considers what its principal function is, or should be, how it has been encouraged and facilitated in the EU, and how it is balanced with public enforcement.
The chapter commences in Section 3 by examining the way in which private antitrust litigation may contribute to effective enforcement of competition law and the core function, or functions, it may fulfil. In particular, it scrutinises the private enforcement system in the US where the legislature made a conscious policy choice, at the time of adopting the antitrust laws there, to encourage private litigants to participate in their enforcement.4 It is seen that over time, and combined with other elements of, and developments in, the US system, the net result of this choice has been that, uniquely in the world, a vast majority of antitrust enforcement in the US (approximately 90 per cent of cases5) (p. 1021) emanates from private litigation rather than public enforcement. Such actions have been argued by some to play a crucial function, decentralising decision-taking, democratising antitrust policy, affirming the rule of law, deterring violations, and ensuring that victims obtain compensation. The system has encouraged such high volumes of litigation, however, that it has been felt necessary, through a series of steps, to adjust the system to limit and curtail litigation and to ensure that some of its perceived excesses are moderated;6 in particular, to ensure that unmeritorious litigation is not encouraged which may have the potential to chill pro-competitive behaviour and so undermine the objectives of the antitrust laws.7
Section 4 then examines the EU system, the obligations that EU law imposes on national courts, the different factors that have operated over time as barriers to private litigation in the EU Member States, and the package of measures that has been adopted to overcome these obstacles. In this section it is seen that the EU position contrasts starkly with that which exists in the US. The Treaty contains no specific provision governing private rights of action for damages or injunctions following a violation of the EU competition law rules. Further, although private proceedings in the national courts have long been possible by virtue of the fact that Articles 101 and 102 have direct effect, and a key objective of Regulation 1/20038 was to allow a more decentralised enforcement system to emerge with the national courts (and NCAs) participating more actively within it, a number of factors initially combined to preclude private actions from developing evenly across the EU. Even though, therefore, litigation grew rapidly in some Member States, particularly the UK, the Netherlands, and Germany,9 significant barriers to private antitrust actions existed in others.
For many years the Commission took the view that this EU situation was unsatisfactory and that more needed to be done, whilst avoiding the problems that have confronted the US system, to stimulate and harmonise national rules governing private enforcement which could then contribute to promoting a culture of competition: ’The overall enforcement of the EU competition rules is best guaranteed through complementary public and private enforcement.’10 After extensive debate and discussion as to whether, and if so how, to develop a European approach to private enforcement,11 the Commission adopted a package of measures on private antitrust actions including:
• a Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the EU (the Damages (p. 1022) Directive). Following the publication of a draft Directive12 in 2013, the final Directive was signed into law on 26 November 201413 and has now been transposed into law in all of the Member States (the Commission is in the process of examining whether the national rules implement the Directive completely and correctly);14
• a Recommendation of non-binding principles for collective redress mechanisms for Member States (a proposal for legislation setting out an EU-wide framework for consumer redress (allowing consumer organisations to bring damages actions and strengthening collective redress mechanisms across the EU) is, however, working its way through the EU legislative process);15 and
• a practical guide on the quantification of harm for damages to assist national courts.16
The Commission also intends to provide additional, complementary quantification guidance for national courts on the passing-on of overcharges. It is consulting on draft Guidelines, drafted with the assistance of a DG Comp Study on the Passing-on of Overcharges.17
The analysis set out in Sections 3 and 4 provides the critical backdrop to an examination of the provisions contained in the EU reform package, in particular in the Damages Directive. The chapter considers what has been done to overcome the obstacles to private litigation that were perceived to exist in the EU, whether the package is sufficient to achieve its objectives, what pitfalls might be anticipated, and/or whether further developments and clarifications may be required in the future. Section 5 concludes that although the package of reforms constitutes a courageous and innovate step to draw private litigants throughout the EU into the enforcement process without encouraging unmeritorious actions and over-enforcement of the rules, a question which remains is whether sufficient has been done to boost and facilitate private damages actions and to create the level playing field across the EU sought by the Commission. Not only does the Directive not institute a completely harmonised framework, leaving a number of potential obstacles to national actions and areas of legal ambiguity outstanding, but some of the Directive’s provisions are liable to introduce considerable complexities into national proceedings. Further, as scope for some significant divergences between national rules remains, such differences are likely to continue to affect where litigants choose to commence their actions and to result in forum-shopping.
(p. 1023) 3. The Role of Private Antitrust Litigation, its Relationship with Public Enforcement, and the Experience in the US
Private civil actions provide a mechanism for achieving corrective justice by allowing compensation of victims. They thus have an important ‘compensation function’—to compensate those harmed by the competition law infringement. Further, private enforcement (for example, in the form of actions for damages, restitution, and/or an injunction) may provide the springboard for the law to be developed, relieve enforcement pressure on public enforcement agencies, fill public enforcement gaps,18 and result in violations of the rules being brought to an end and/or deterred (through exposing those in violation to liability for damages). Indeed, if violations are sufficiently deterred, the need for actions for compensation will be reduced. Private litigation may, like public enforcement, thus serve a variety of important functions, including remediation and ‘deterrent’ functions—to deter the violation of the competition rules and to punish the perpetrators;19 it is interdependent with and complementary to public enforcement requiring public and private enforcement to be combined harmoniously.20
If private enforcement is to play a meaningful part in the enforcement process, however, important issues to be resolved are what the primary function of private enforcement should be—for example, should it be deterrence21 of public wrongs that distort competition and harm society as a whole or compensation of specific victims harmed by an antitrust infringement and whose private rights have been infringed—and how can the optimal balance between private and public enforcement be achieved? These factors may influence the shape of the rules which govern it.
In the US, private enforcement seems to have been designed to compensate victims but also, specifically, to act as a deterrent. Indeed, the Clayton Act22 itself encourages private enforcement of the antitrust laws by providing, for: treble damages for those injured by reason of anything forbidden in the antitrust laws;23 injunctive relief against threatened loss or damage by a violation;24 the use of judgments entered against the defendant as prima facie evidence against that defendant;25 clear limitation periods;26 and successful plaintiffs (claimants) to recover costs, including reasonable (p. 1024) attorney’s fees, contrary to the ordinary rule in the US that each party bears its own attorney fees and costs.27
Although these provisions did not trigger significant volumes of private antitrust litigation on their own, different individual features of the US system have combined and developed sequentially28 to allow such actions to play a significant role in the enforcement process. In the 1960s and 1970s private litigation began to burgeon. Partly, this growth reflected the development of an interventionist antitrust policy between the 1940s and 1960s, underpinned by a scepticism about the ability of firms and the markets to provide a successful economic outcome and a mistrust of big business and concentrated markets.29 Especially during the Warren Court era, the Supreme Court30 adopted broad interpretations of the antitrust statutes (for example, making wide use of per se rules and applying lenient procedural, substantive, and evidential burdens of proof31), which made it relatively easy for plaintiffs to win cases.32 Combined with the facts that:33
• wide-ranging pre-trial discovery powers exist in the US, which assist the collection of relevant and essential evidence;
• federal rules allow for consolidation of antitrust claims and for the bringing of opt-out class actions;34
• lawyers regularly accept antitrust cases on a contingency fee (no win, no fee) basis;
• most antitrust cases are tried by jury35 (so conferring an element of ‘unpredictability’ to antitrust trials); and
• defendants, as joint tortfeasors, are jointly and severally liable for any damage caused with no right to contribution from co-defendants;36
private litigation was able to flourish. Further, as US public enforcement agencies have never adopted such a central role in antitrust enforcement as has their European counterpart, the Commission, those injured by an antitrust violation have frequently had little choice but to litigate if they wish the infringement to be brought to an end.
In 1968 and 1977 the Supreme Court also handed down two important judgments, Hanover Shoe Inc v United Shoe Machine Corp37 and Illinois Brick Co v Illinois,38 which facilitated private litigation and clearly seemed to elevate the remediation and deterrent functions served by private enforcement higher than its ‘compensation function’. These cases hold that: the possibility that a claimant might have recouped some of an anti-competitive overcharge by passing it on to its customers is not (p. 1025) relevant in the assessment of antitrust damages cases;39 and claims brought by indirect purchasers, who may have been harmed by an overcharge being passed on to them by a direct purchaser, should generally be refused40 (indirect purchaser actions are however possible in a number of states under state law41). Although these principles might be criticised on the grounds that they may deny compensation to the real victims of the anti-competitive activity and allow direct purchasers to collect a windfall, they do concentrate antitrust claims in the hands of those most likely to sue, simplify damages litigation by allowing extremely difficult issues of remoteness and tracing of injury to be sidestepped, and reduce the process costs of litigation.42
By enlisting in these ways the help of those most directly affected by anti-competitive conduct in the enforcement of the law, numerous antitrust cases have been privately litigated, providing the platform for some of the most significant principles of antitrust law to be developed, the rapid evolution of the law, the plugging of enforcement gaps, and offsetting of periods of lax government enforcement, and disputes between private parties to be resolved privately (without drawing public agencies within them).43
It is well known, nonetheless, that the virtues of the US private enforcement system are not universally extolled and that its benefits have been hotly debated. Widespread concern has been articulated that features of the system have encouraged overinvestment in private litigation (motivated by private profit rather than public-interest considerations), over-enforcement, and over-deterrence44 and that, especially in the 1960s to 1970s and in relation to class actions, damages actions got ‘out of control’45—the system became prone to error and encouraged ‘anaemic’ claims to be brought and settled by defendants eager to avoid protracted and expensive litigation. In addition, there has been concern that private actions might actually undermine public enforcement and deterrence, by discouraging leniency applications.
Although not all might agree with these, or all of these, criticisms, these types of anxiety have led to a dramatic recalibration of the US system. Not only has the legislator stepped in in order to diminish the disincentive of submitting amnesty applications, by de-trebling antitrust damages and removing joint and several liability for corporations that participate in the amnesty programme and cooperate with claimants,46 but the Supreme Court has expressed concerns about the ‘coercive’47 (p. 1026) elements of the antitrust system, the risk of false positives they create, and has handed down a series of opinions which, collectively, limit the types of antitrust claim that can successfully be brought and appreciably raise the bar for antitrust claimants.48 The courts have thus been supportive of efforts to safeguard against antitrust claims having a chilling effect on competition through the use of evidential, procedural, and substantive rules.49 The developments relating to procedure have, in particular, made it easier for antitrust defendants to escape a full antitrust trial either on the basis that the complaint fails to state a claim upon which relief can be granted50 or following discovery on the basis that ‘there is no genuine issue as to any material fact’ so that ‘the moving party is entitled to judgment as a matter of law’.51 Further, and crucially, there seems little doubt that the perceived ‘excesses’ of the treble damages system have been an important factor influencing the Supreme Court in its decision over the last 35 years to rein in the substantive reach of the antitrust laws, making it now extremely difficult for private plaintiffs not only to bring antitrust actions but to ‘win’ them.52 The Supreme Court has repeatedly expressed fear that enforcement should not be permitted to ‘chill the very conduct the antitrust laws are designed to protect’53 and this concern has influenced its efforts to
scale back the application of the U.S. antitrust laws. The consequence of getting it wrong—or false positives—is much greater when a firm is exposed to treble, rather than single, damages for its alleged wrongdoing … These combination of factors has led our Supreme Court to craft increasingly tough liability rules for antitrust offences and increasingly high hurdles for plaintiffs to move beyond the pleadings stage or to survive summary judgment or a directed verdict to get to a jury. The concern is not just that juries will get it wrong, but that the fear of false positives will chill business behaviour that may benefit consumers.54
There is now some concern however that the pendulum has swung too far in the opposite direction in the US; rules are so rigorous and provide so little certainty that meritorious litigation may be being discouraged. As antitrust law has shifted away from clear rules the costs of deciding antitrust cases have been increased without concern
for the loss of certainty that had been associated with now abandoned per se rules and lenient burdens of proof and the increased party and institutional costs associated with reliance on more demanding standards of proof. Neither has it been concerned with the possibility that the incidence of false negatives could increase due to cost and lack of access to the necessary proof.55
Indeed, following an important study of 60 private US antitrust cases,56 Professors Davis and Lande57 published a paper ‘defying conventional wisdom’, rejecting some or the more anecdotal (p. 1027) and unsubstantiated concerns about private enforcement, and concluding that the private actions studied demonstrated that they had played an important role both in compensating victims and deterring violations. They found not only that the cases analysed (47 of which were opt-out class actions brought through lawyers working for a contingency fee) demonstrated that significant amounts of cash (in excess of $33.8 billion) was returned to victims of anti-competitive behaviour,58 but it was clear that they had uncovered violations which might otherwise have been undiscovered; one-third of the cases examined were stand-alone actions, actions which did not follow-on from public enforcement, and a number of the follow-on cases extended significantly beyond the parameters of the original government case. This complemented and bolstered their views, articulated in a separate paper, that private antitrust actions deter anti-competitive conduct more effectively even than criminal cartel proceedings pursued by the Department of Justice.59
The long experience of the US provides some important lessons for other jurisdictions. Not only does it illustrate how private actions can play an important role in the enforcement process and in ensuring that its compensatory, remediation, and/or deterrence functions are achieved, but it illustrates that a number of pitfalls exist. Further, that in developing a system of private enforcement a number of issues should be addressed, including how to: (a) craft rules in a way that will achieve, and balance, the competing objectives pursued and which will minimise error costs; and (b) ensure that it does not undermine public enforcement.
Because of the close connection between private and public enforcement, many public enforcement agencies take a keen interest in the development of private enforcement. Indeed, it has already been seen that, in the EU, it has been the Commission that has spearheaded the campaign to encourage greater private enforcement of the EU antitrust laws, whilst at the same time stressing that it should not adversely impact on public enforcement. The Commission has been facilitated in this task by its unique and unusual position of having separate and central roles within the EU legal order both as a competition enforcement agency and as the EU institution which ordinarily formulates legislative proposals (including those to promote the effective application of competition law).
4. Private Enforcement in the EU
A. Overview: Effective Judicial Protection and the Principle of National Procedural Autonomy
In contrast to the position in the US, the EEC Treaty, the EC Treaty, and the TFEU have all been silent on the question of whether private rights of action for damages or injunctions must follow from a violation of the EU competition law rules; until the Damages Directive was adopted in 2014, no EU legislation specifically addressed private rights of action. Rather, prior to the Directive such (p. 1028) rights derived only from the jurisprudence of the CJ60, which developed in a gradual and piecemeal fashion.61
Nonetheless, since 1974 it has been clear that private actions are possible by virtue of the fact that Articles 101 and 102 have direct effect (see Belgische Radio en Televisie v SV SABAM62). Further, in a series of subsequent cases the CJ has established that national courts63 must provide effective judicial protection of the rights that individuals derive from directly effective provisions of EU law, and give them precedence over conflicting principles of national law.64 These principles, combined with Article 3 of Regulation 1/2003,65 mean that national courts, like NCAs: have an obligation to apply EU law in combination with national law to conduct which affects trade between Member States; cannot apply national law to authorise conduct prohibited by EU law; can only apply national competition law more strictly in the circumstances specified by Regulation 1/2003; and must ensure effective remedies are available to protect EU rights.
Until the implementation of the Damages Directive, litigation involving vindication or protection of EU competition law rights before a national court was governed by the principle of ‘national procedural autonomy’:
in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of rights which citizens have from the direct effect of [EU] law.66
Under this principle, the protection given to EU rights is dependent on national procedural, evidential, and substantive rules, subject to the national courts’ duty of sincere cooperation to ensure the availability of adequate remedies sufficient to guarantee real and effective judicial protection for those EU rights and to comply with the principles of equivalence and effectiveness—national rules: (a) must not be less favourable than those relating to similar claims of a domestic nature (the principle of equivalence); and (b) must not make it virtually impossible or excessively difficult to exercise the rights that the national courts are obliged to protect (the principle of effectiveness).67 Although these obligations leave a national court freedom to determine how best to protect EU rights,68 in some cases it may require a court to grant one of two or more possible remedies69 or even a specific remedy to rectify a specific wrong.70 For example, the CJ has held that a Member State is obliged, in defined circumstances, to compensate individuals who have been injured by its breach of EU law (Francovich (p. 1029) v Italy)71 and to repay charges it has levied in breach of EU law.72 National courts are not required to grant new remedies,73 but this obligation means that national rules may have to be adapted or extended to ensure that a remedy is available where required by EU law. National defences and procedural limitations to such a claim apply insofar as they comply with the principles of equivalence and effectiveness (the acquis communautaire).
In the context of Articles 101 and 102, these principles combined to require national courts to ensure that:
(a) they apply Articles 101 and 102 as interpreted by the EU Courts;
(b) they do not take decisions that run counter to those adopted by the Commission (see Section B);
(c) individual clauses in an agreement affected by the Article 101(1)—and Article 102—prohibition are held to be void (see Section C);
(d) interim relief is available where necessary to protect putative EU rights (see Section D);
(e) full compensation is, in principle, available to those that have suffered loss in consequence of a breach of Article 101 or 102 (see Section D);
(f) defences and limitations to such rights/actions are only applied insofar as the principles of equivalence and effectiveness are respected (see Section D).
Further constraints on the autonomy of national systems have now also come into place as a result of the Member States’ obligation to implement the harmonising measures of the Damages Directive (see Section D). As, however, the Directive does not harmonise all aspects of national law governing private claims the principle of national procedural autonomy continues to have importance in relation to the matters falling outside its scope.
B. Uniform and Concurrent Application of Articles 101 And 102
(i) Cooperation Between the Commission and National Courts
A key concern that may follow from decentralised enforcement of Articles 101 and 102, is that the Commission, the individual NCAs, and national courts respectively may adopt inconsistent interpretations and applications of the rules. When applying Articles 101 and 102, the national courts are obviously bound to interpret those provisions in accordance with that adopted by the CJ and to respect the principle of primacy of EU law. Article 267 provides an important mechanism for national courts struggling with the interpretation of EU law. Further, the CJ has held that the duty of cooperation requires the Commission to assist national courts in their application of EU law and vice versa.74
Both Regulation 1/2003 itself and the Commission’s Notice on cooperation with courts of the EU Member States in the application of [Articles 101 and 102 TFEU] (the Cooperation Notice)75 explain how that cooperation may manifest itself. For example, Article 15 of Regulation 1/2003 envisages that the Commission should act as amicus curiae to the national courts. Not only does it provide that the national courts might request the Commission to provide information or an opinion on the application of the EU competition rules but it provides that the Commission may, where ‘the (p. 1030) coherent application of Article  or Article  so requires’, submit written observations to the national courts and also, with their permission, make oral observations.76 Any opinion so provided is published but does not have binding effect on the courts (although it may have persuasive impact).77 National law governs the procedural framework, dealing with how the submissions should be provided. Regulation 1/2003 also provides how the national courts must assist the Commission in the fulfilment of its tasks. In addition to providing the Commission and NCAs with the documents necessary for preparing written or oral observations to the courts, Member States must forward to the Commission ‘a copy of any written judgment of national courts deciding on the application of Articles  or Article ’ without delay.78 The Commission publishes these judgments on its website according to the Member State of origin.79
(ii) Judgments Contrary to Decisions of the Commission
Article 11(6), which relieves NCAs of their competence to apply Articles 101 and 102 following initiation of proceedings by the Commission, does not apply to national courts. Nonetheless, the CJ has held that the duty of cooperation set out in EU law requires a national court to follow a Commission decision dealing with the same parties and the same agreement in the same Member State.80 Further, in order to ensure a uniform application of Articles 101 and 102, Article 16 of Regulation 1/2003 provides that the national courts must not adopt decisions contrary to a previous Commission decision and must avoid giving decisions that would conflict with a decision contemplated by the Commission.81 Regulation 1/2003 does not deal with the impact of decisions of NCAs within the European Competition Network on national courts. Although the Commission proposed that NCAs’ decisions should be given similar effect, the final Damages Directive provides that NCA decisions should only be binding in their home jurisdiction.82
Where the Commission has initiated proceedings but not determined a case, a national court must not, therefore, adopt a decision that might conflict with that which will be adopted by the (p. 1031) Commission. The Commission will provide the national court with information as to whether it has initiated proceedings, the progress of proceedings, and the likelihood of a decision. Unless the national court cannot doubt the Commission’s contemplated decision or the Commission has already decided on a similar case, it should ordinarily stay the proceedings before it.83 Where this occurs the Commission will endeavour to give the case priority. Where the Commission has already decided on the case, however, the Commission’s decision is binding on the national court, without prejudice to the interpretation of EU law by the CJ.84 If the national court does not agree with the decision of the Commission it must either await the outcome of an appeal, if any, from its decision, or refer the question to the CJ for a preliminary ruling.85 Where the national court does stay proceedings in the context of parallel or consecutive proceedings, it should consider whether it should impose interim measures in order to safeguard the interests of the parties involved.86
C. The Enforceability of Agreements Infringing Article 101 or 102
(i) Article 101
In Chapter 4 it was seen that although Article 101 provides that agreements or decisions prohibited by Article 101(1) are void,87 the nullity provided for in Article 101(2) in fact applies only to individual clauses in the agreement affected by the Article 101(1) prohibition.88 The agreement as a whole is void only where those clauses are not severable from the remaining terms of the agreement.89
In Manfredi v Lloyd Adriatico Assicurazioni SpA the CJ clarified that the invalidity of the agreement (or affected clauses) is absolute—the agreement has no effect as between the contracting parties and cannot be invoked against third parties.90 As an agreement infringes Article 101 only if all of the elements of Article 101(1) are satisfied and the four conditions of Article 101(3) are not met, it is possible that, as events change over a period of time, an agreement that does not infringe Article 101(1) will subsequently be found to do so, and vice versa. Suppose, for example, a small, local undertaking concludes an agreement which does not infringe Article 101(1) on account of its minor importance (the undertaking has an extremely small share of the market). Suppose further, that that undertaking is subsequently taken over by a larger undertaking so that the agreement now does have an appreciable effect on competition and trade, does not meet the conditions of a block exemption, and does not fulfil the conditions of Article 101(3). The agreement that previously fell outside Article 101(1) (and was valid) now becomes subject to its prohibition (and void). The reverse may also occur: an agreement which is initially void may become valid (and possibly void again) as the agreement falls within and without the Article 101(1) prohibition.91
Although the effect of Article 101(2) has been spelt out by the CJ, the question of whether the prohibited clauses can actually be severed from the remaining provisions in the contract is a matter for (p. 1032) national law.92 In some jurisdictions it may also be the case that, in addition to being void, offending provisions are illegal.93 The compatibility of the plea of illegality with EU law is discussed in greater detail in Section 4.D.
A further crucial question which arises is whether contracts concluded in implementation, or in consequence, of an illegal agreement might be vitiated, for example a contract for sale at prices inflated in consequence of a cartel agreement entered into by the seller or sales contracts made in consequence of an invalid beer tie. In certain circumstances EU law makes it clear that a contract confirming an illegal contract is also in violation of Article 101.94 Otherwise, it seems it is for national law,95 subject to the principles of equivalence and effectiveness, to determine whether or not a contract concluded with a third party on the basis of a void agreement should also be tainted by the illegality and ‘regarded as springing from or founded on the agreement rendered illegal’.96
(ii) Article 102
Article 102 contains no declaration of nullity equivalent to that set out in Article 101. This omission is not surprising since Article 102 does not explicitly prohibit agreements but focuses on a wider range of conduct.97 Nevertheless, the Article implicitly prohibits many contracts and contractual terms and the effect in relation to sanctioned agreements is, despite being couched in different terms, similar to that of Article 101. It is to be expected, therefore, that Article 102 should render a contract, or severable terms of a contract, affected by its prohibition void98 or, at the very least, unenforceable.99
D. Remedies: Injunctions and Damages
(i) An EU Right to an Injunction
For many years a lack of clarity surrounded the question of what exact rights Articles 101 and 102 conferred upon individuals and what remedies had to be available to protect them. In R v Secretary of State for Transport, ex parte Factortame Ltd,100 however, the CJ made it clear that a national court must ensure that interim measures are available where necessary to protect putative EU rights:101
19. In accordance with the case-law of the Court, it is for the national courts, in application of the principle of cooperation laid down in Article  of the [EC] Treaty, to ensure the legal protection which persons derive from the direct effect of provisions of Community law . . .
20. The Court has also held that any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, Community rules from having full force and effect are incompatible with those requirements, which are the very essence of Community law. . . .
21. . . . [T]he full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seized of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule.
It was not until 2001, in Courage Ltd v Crehan, however, that the question of whether damages were required to protect rights derived under Articles 101 and 102 was finally resolved.
(ii) Development of an EU Right to Damages
The EU right to damages for loss suffered in consequence of a breach of EU competition law was finally decided following an Article 267 reference of questions to the CJ by the English Court of Appeal, made in the course of its hearing of conjoined appeals in the case of Courage Ltd v Crehan.102 The case concerned two leases of public houses that had been concluded between Inntrepreneur Estates (CPC) Ltd (owned equally by Grand Metropolitan plc and Courage Ltd) and Mr Crehan and which required Mr Crehan to purchase minimum quantities of various beers for resale at the leased premises from Courage, and no other person. The proceedings involved an action brought by the brewers for the recovery of £15,266, alleged to be the price of beers sold and delivered to Mr Crehan. By way of defence Crehan alleged, amongst other things, that the beer tie in the lease was in breach of Article 101. He counterclaimed for damages and/or restitution. The case thus raised the compatibility of the beer ties and the leases with Article 101 and the impact of any such incompatibility on the claims and counterclaims made by the parties.
Courage Ltd v Crehan was one of a series of similar cases that had arisen before the English courts, involving proceedings for damages on account of a brewer’s breach of statutory duty103 or recovery of payments made pursuant to the void contract (the restitutionary claim).104 By the time the Crehan case reached the Court of Appeal, authority established, for a variety of reasons, that the claims must fail and were ‘hopeless’.105 The most significant obstacle to the actions had been that the claims were based on an illegal act. The English courts have generally refused to assist a claimant whose action is founded on an illegal act: ex turpi causa non oritur actio106 and to allow a party to a prohibited contract either to enforce that contract or to bring any other action based upon it: in pari delicto potior (p. 1034) est conditio defendentis.107 Although the Court of Appeal in Courage Ltd v Crehan agreed with the first instance judge that English law would not afford a remedy of damages to a party to an agreement prohibited by Article 101,108 it recognised that there might be sound policy arguments in favour of accepting that a party to a prohibited agreement has a right to sue for damages.109 Further, that a party to a prohibited agreement such as that before it, might have rights by virtue of Article 101 that were protected by EU law which might supersede any principle of English law denying the right. The Court of Appeal thus made a reference to the CJ essentially asking whether EU law required a national court to provide a remedy of damages to claimants injured by a breach of Article 101, even if it was a party to the prohibited contract.110
Court of Justice
19. It should be borne in mind, first of all, that the Treaty has created its own legal order, which is integrated into the legal systems of the Member States and which their courts are bound to apply. The subjects of that legal order are not only the Member States but also their nationals. Just as it imposes burdens on individuals, Community law is also intended to give rise to rights which become part of their legal assets. Those rights arise not only where they are expressly granted by the Treaty but also by virtue of obligations which the Treaty imposes in a clearly defined manner both on individuals and on the Member States and the Community institutions (see the judgments in Case 26/62, Van Gend en Loos  ECR 1, Case 6/64, Costa … and Joined Cases C-6/90 and C-9/90, Francovich and Others … , para. 31).
20. Secondly, according to Article 3(g) of the EC Treaty (now, after amendment, Art. 3(1)(g) EC), Article [101 TFEU] constitutes a fundamental provision which is essential for the accomplishment of the tasks entrusted to the Community and, in particular, for the functioning of the internal market (judgment in Case C-126/97, Eco Swiss  ECR I-3055, para. 36).
21. Indeed, the importance of such a provision led the framers of the Treaty to provide expressly, in Article [101(2) TFEU], that any agreements or decisions prohibited pursuant to that article are to be automatically void (judgment in Eco Swiss, cited para. 36).
22. That principle of automatic nullity can be relied on by anyone, and the courts are bound by it once the conditions for the application of Article [101(1)] are met and so long as the agreement concerned does not justify the grant of an exemption under Article [101(3) TFEU] (on the latter point, see, inter alia, Case 10/69, Portelange  ECR 309, para. 10). Since the nullity referred to in Article [101(2)] is absolute, an agreement which is null and void by virtue of this provision has no effect as between the contracting parties and cannot be set up against third parties (see the judgment in Case 22/71, Béguelin  ECR 949, para. 29). Moreover, it is capable of having a bearing on all the effects, either past or future, of the agreement or decision concerned (see the judgment in Case 48/72, Brasserie de Haecht II  ECR 77, para. 26).
23. Thirdly, it should be borne in mind that the Court has held that Article [101(1) TFEU] and Article  produce direct effects in relations between individuals and create rights for the individuals concerned which the national courts must safeguard (judgments in Case, 127/73 BRT and SABAM  ECR 51, para. 16, (BRT I) and Case C-282/95 P, Guérin Automobiles v Commission  ECR I-1503, para. 39).
(p. 1035) 24. It follows from the foregoing considerations that any individual can rely on a breach of Article [101(1) TFEU] before a national court even where he is a party to a contract that is liable to restrict or distort competition within the meaning of that provision.
25. As regards the possibility of seeking compensation for loss caused by a contract or by conduct liable to restrict or distort competition, it should be remembered from the outset that, in accordance with settled case-law, the national courts whose task it is to apply the provisions of Community law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals (see, inter alia, the judgments in Case 106/77, Simmenthal … , para. 16, and in Case C-213/89, Factortame … , para. 19).
26. The full effectiveness of Article [101 TFEU] 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.
27. Indeed, the existence of such a right strengthens the working of the Community competition rules and discourages agreements or practices, which are frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the Community.
28. There should not therefore be any absolute bar to such an action being brought by a party to a contract which would be held to violate the competition rules.
29. However, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from Community law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see Case C-261/95 Palmisani … , para. 27).
30. In that regard, the Court has held that Community law does not prevent national courts from taking steps to ensure that the protection of the rights guaranteed by Community law does not entail the unjust enrichment of those who enjoy them (see, in particular, Case 238/78, Ireks-Arkady v Council and Commission … , para. 14, Case 68/79, Just … , para. 26, and Joined Cases C-441/98 and C-442/98, Michaïlidis … , para. 31).
31. Similarly, provided that the principles of equivalence and effectiveness are respected (see Palmisani, cited above, para. 27), Community law does not preclude national law from denying a party who is found to bear significant responsibility for the distortion of competition the right to obtain damages from the other contracting party. Under a principle which is recognised in most of the legal systems of the Member States and which the Court has applied in the past (see Case 39/72, Commission v Italy … , para. 10), a litigant should not profit from his own unlawful conduct, where this is proven.
32. In that regard, the matters to be taken into account by the competent national court include the economic and legal context in which the parties find themselves and, as the United Kingdom Government rightly points out, the respective bargaining power and conduct of the two parties to the contract.
33. In particular, it is for the national court to ascertain whether the party who claims to have suffered loss through concluding a contract that is liable to restrict or distort competition found himself in a markedly weaker position than the other party, such as seriously to compromise or even eliminate his freedom to negotiate the terms of the contract and his capacity to avoid the loss or reduce its extent, in particular by availing himself in good time of all the legal remedies available to him.
34. Referring to the judgments in Case 23/67, Brasserie de Haecht … and Case C-234/89, Delimitis … , paras. 14–26, the Commission and the United Kingdom Government also rightly point out that a contract might prove to be contrary to Article [101(1) TFEU] for the sole reason that it is part of a network of similar contracts which have a cumulative effect on competition. In such a case, the party contracting with the person controlling the network cannot bear significant responsibility for the breach of Article , particularly where in practice the terms of the contract were imposed on him by the party controlling the network.
35. Contrary to the submission of Courage, making a distinction as to the extent of the parties’ liability does not conflict with the case-law of the Court to the effect that it does not matter, for the purposes of (p. 1036) the application of Article [101 TFEU], whether the parties to an agreement are on an equal footing as regards their economic position and function (see, inter alia, Joined Cases 56/64 and 58/64, Consten and Grundig v Commission …). That case-law concerns the conditions for application of Article [101 TFEU] while the questions put before the Court in the present case concern certain consequences in civil law of a breach of that provision.
36. Having regard to all the foregoing considerations, the questions referred are to be answered as follows:
— a party to a contract liable to restrict or distort competition within the meaning of Article [101 TFEU] can rely on the breach of that article to obtain relief from the other contracting party;
— Article [101 TFEU] precludes a rule of national law under which a party to a contract liable to restrict or distort competition within the meaning of that provision is barred from claiming damages for loss caused by performance of that contract on the sole ground that the claimant is a party to that contract;
— Community law does not preclude a rule of national law barring a party to a contract liable to restrict or distort competition from relying on his own unlawful actions to obtain damages where it is established that that party bears significant responsibility for the distortion of competition.
It can be seen from this extract that the Court stresses the new legal order created by the EU, the rights the Treaty provisions confer on individuals, the centrality of the competition rules to the EU project, and the direct effect of Article 101(1). The judgment clearly establishes that: (a) Article 101 confers rights on individuals, even parties to a contract in breach; and (b) any breach of Article 101 is sufficiently serious to trigger an EU right to damages. It thus created a new ‘Euro-tort’111 along the lines of Francovich;112 individuals must, in principle, be entitled to claim damages for loss caused by an agreement or conduct that restricts competition; whatever the position in national law, a right to claim damages to compensate breaches of both Article 101 and Article 102 must be available under national law.113 It thus underlines the obligation of national courts to ensure that EU rules take full effect and to protect the EU rights those provisions conferred on individuals114 and highlights the importance of private actions to the enforcement of EU law.115 The Court also concludes that there should be no absolute bar to a damages claim, even to one brought by a party to a contract violating the competition rules. Insofar as a national principle of illegality provides an absolute bar to a claim for damages commenced under Article 101, it is therefore undoubtedly incompatible with EU law. It might be compatible, however, where it respects the EU principles of equivalence and effectiveness; for example, where a right to obtain damages is denied to a contracting party found to bear significant responsibility for the distortion of competition.116
In Manfredi v Lloyd Adriatico Assicurazioni SpA117 the CJ reiterated that the practical effect of the Article 101(1) prohibition 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. ‘It follows (p. 1037) that any individual can claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article .’118
In this case, the Court was also asked whether Article 101 had to be interpreted as requiring national courts to award ‘punitive’ damages, greater than the advantage obtained by the offending operator, thereby deterring the adoption of prohibited agreements.119 The CJ stressed that the right to claim damages was designed to strengthen the working of the EU competition rules and to discourage prohibited agreements but that the question of whether to award punitive damages was, in the absence of EU rules governing the matter,120 for the domestic legal system of each Member State to determine, provided that the principles of equivalence and effectiveness are observed. It thus stated that:
(a) it must be possible to award punitive damages if such damages may be awarded pursuant to similar actions founded on domestic law. However, EU law did not prevent national courts from taking steps to ensure that protection of EU rights does not entail unjust enrichment of those who enjoy them; and
(b) the right to seek compensation must include compensation not only for actual loss but also for loss of profit plus interest.121
The CJ has also confirmed that damages claims in the EU are not necessarily restricted to claimants in a vertical chain with the defendant (for example, a direct or indirect purchaser from the defendant), so long as it can be established that the loss caused to the claimant resulted in consequence of the infringing conduct. In Kone AG v ÖBB-Infrastruktur AG122 the claimant alleged before an Austrian court that it had been harmed by the market-sharing cartel at issue in the elevators and escalators market which had enabled suppliers (which were not themselves in the cartel) to raise their prices. Austrian law did not, however, permit such a claim, because the alleged loss resulted from an independent business decision of the non-cartelist.
The CJ has concluded that the full effectiveness of Article 101 would be put at risk if it were not open to any individual to claim damages for loss caused to him by infringing conduct. A person was thus entitled to claim compensation for the harm suffered where a causal link with an agreement or practice prohibited under Article 101 could be established. Because market price was one of the main factors taken into consideration by an undertaking when determining the price at which it will offer its goods or services, it could not be ruled out that a competing undertaking, outside the cartel in question, might choose to set the price of its offer at an amount higher than it would have chosen in the absence of that cartel where the cartel resulted in artificially high prices for particular goods. The victim of such ‘umbrella pricing’ should consequently be able to obtain compensation for such loss from the members of a cartel, ‘where it is established that the cartel at issue was, in the circumstances of the case and, in particular, the specific aspects of the relevant market, liable to have the effect of umbrella pricing being applied by third parties acting independently, and that those circumstances and specific aspects could not be ignored by the members of that cartel’.123
(p. 1038) (iii) The Principle of National Procedural Autonomy— the Difficulties
In accordance with the provisions of the (now recast) Brussels Regulation, Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgment in civil and commercial matters, a national court has jurisdiction to hear tortious proceedings relating to a competition law claim where the defendant is domiciled in that Member State or if the harm occurred there.124
Prior to the Damages Directive, the principle of national procedural autonomy conferred considerable latitude on the national systems and the national courts; the protection given to EU rights was consequently heavily dependent on the procedural, evidential, and substantive rules governing civil litigation applicable in each individual Member State and how EU law—in particular, the principles of equivalence and effectiveness—constrained their operation.125
This meant that opacity surrounded a multiplicity of questions arising at the national level, including how national claims should be framed (and whether fault should or can be a constituent element of the cause of action), how causation can be established and damages calculated, whether national courts are required to award ‘punitive’ damages and whether other national rules governing the claim comply with EU law, and, especially, the principle of effectiveness; for example, rules relating to standing, remoteness, illegality, a passing-on defence, or setting out limitation periods.
It has been seen that the CJ ruled on some of these issues, including on the compatibility of the English principle of illegality and the availability of punitive damages with the EU principle of effectiveness.126 In Manfredi v Lloyd Adriatico Assicurazioni SpA127 the CJ was also asked for guidance on the question of whether a national limitation period was compatible with EU law. The relevant limitation period in that case began to run from the day on which that prohibited agreement or practice was adopted. The CJ held that a national rule governing limitation could make it practically impossible to exercise the right to seek compensation for the harm caused by that prohibited agreement or practice, particularly if it imposed a short limitation period which is not capable of being suspended. It noted that in the case of continuous or repeated infringement, it was possible in these circumstances that the limitation period would expire even before the infringement was brought to an end. The principles of equivalence and effectiveness thus require national rules which render nugatory the right to compensation, to be struck down, or disapplied.128
This position led to a number of difficulties, however.
First, even in areas where the CJ had ruled, scope for variations in national rules and different determinations of whether a specific national rule (for example, a limitation period or a rule of illegality) was compliant with EU law remained.
Secondly, where no specific ruling existed, the compatibility of certain national rules with EU law remained in doubt and, in particular, dependent on the core goals underpinning the EU principle of effectiveness stressed in the CJ’s Crehan and Manfredi judgments. For instance, the CJ never ruled (p. 1039) on the question of whether EU law demanded that indirect purchasers should have standing to bring antitrust proceedings and/or whether defendants should be able to raise a passing-on defence. Some argued that the principal purpose of the effectiveness principle was the attainment of corrective justice129—with deterrence operating merely as a socially beneficial by-product of such actions130—, so suggesting that indirect purchasers should have standing and a passing-on defence should be allowed (this is the approach taken in the Damages Directive131).132
Which principle of ‘effectiveness’ for Courage?
It is here submitted that the notion of ‘effectiveness’ on which the Crehan decision relies is that of ‘effective judicial protection’, rather than ‘effective enforcement’. First and foremost, Crehan is commonly considered as the logical extension of the same principle that generated Francovich and Brasserie du Pêcheur. As noted at the outset, the Commission acknowledges that: [T]he existence of a Community law remedy of damages against individuals for breach of Articles [101 and 102 TFEU] follows from the same principles [as those that give rise] to such a remedy against Member States for breaches of other provisions of Community law. This principle is, as discussed above, predominantly based on ‘effective judicial protection’.
Secondly, the wording of the Crehan decision is very similar to that of Brasserie du Pêcheur: After highlighting that ‘Community law is intended to give rise to rights which become part of [individual] legal assets’, the [CJ] reaffirms the principle that: [T]he full effectiveness of [Article 101] of the Treaty 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 conduct liable to restrict or distort competition.
The subsequent paragraph is then devoted to the ‘enforcement’ argument, and acknowledges the contribution that such a right would give ‘to the maintenance of effective competition in the Community’. This argument, however, seems to be used to reinforce, rather than to establish, the basis of liability.
This emerges more clearly in the Manfredi decision. In that case, the [CJ] affirmed more explicitly than in Crehan the existence of a Community-based right to compensation for the infringement of antitrust law but, in so doing, only echoed the part of the Crehan judgment that dealt with judicial protection . . .:
[I]t should be recalled that the full effectiveness of Article  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 (Courage and Crehan . . . para. 26).
The ‘enforcement’ argument can only be found much later, where the CJ deals with the question of whether punitive damages should be awarded.
If the reasoning here developed is correct, it is clear that the [EU] context is remarkably different from that of the United States: the primary aim of private enforcement should be compensation, and any measure proposed to enhance its operation should take this priority into account. In this respect, the conclusions drawn here have significant practical implications as different views on which objective should be prioritised may imply quite different (but not necessarily conflicting) policy agendas.
(p. 1040) Others, however, such as Nazzini, argue that private enforcement is principally a tool to increase enforcement and to bring to an end and deter violations, which might suggest a different impact on national law, including those governing indirect purchaser claims and the passing-on defence.133
(iii) The case law on the right to damages for breach of art. 101 or 102 TFEU
When the court was required to address the core question of whether those who have been harmed by a breach of art.101(1) TFEU have a right to damages, the enforcement rationale becomes more evident.
In Crehan, the Court of Justice was called upon to decide whether the English law rule ex turpi causa non oritur actio was incompatible with EU law in so far as it prevented a party to an agreement prohibited by art.101(1) TFEU from recovering damages from the other party. The court said that the full effectiveness of art.101 of the Treaty and, in particular, the practical effect of the prohibition laid down in art.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. The court added that the existence of such a right strengthens the working of the EU competition rules and discourages anti-competitive agreements or practices. Finally, the court said that actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the European Union. The enforcement rationale could not be more clearly articulated.
In the subsequent case of Manfredi, the court repeated almost verbatim paras. 26 and 27 of the Crehan case. The court was ruling on whether art.101 TFEU must be interpreted as requiring national courts to award punitive damages, greater than the advantage obtained by the defendant, thereby deterring agreements or concerted practices prohibited under that article. The question explicitly linked the award of punitive damages to deterrence. It was, therefore, important for the court to make it clear that the fact that EU law does not require the award of punitive damages does not mean that the right to damages for loss caused by a breach of art.101 or 102 TFEU is any less important in ensuring the effectiveness of EU competition law.
Although strictly not required to do so, the court went on to determine the content of the right in the light of its function of ensuring the full effectiveness of EU competition law. The court considered that the effectiveness of EU competition law and the right to seek compensation required that the claimant be entitled to ‘full compensation’, including actual loss, loss of profit and interest, but leaving the award of punitive damages to national law subject to the principle of equivalence. In determining the damages recoverable, the court relied both on the principle of effectiveness and on the right to seek compensation. In doing so, the court applied a test similar to that set out in Brasserie du Pêcheur SA and Factortame, whereby the remedies available for the protection of the right are determined according to both the requirement of full effectiveness of EU law and the requirement of effective judicial protection.
Applying the three-stage framework proposed in this chapter, it would appear that, in the first stage, the EU right to damages for breach of art.101 or 102 TFEU is recognised based entirely upon the enforcement rationale. In the second stage, the principle of full effectiveness of EU law applies, in conjunction with the principle of effective judicial protection, to determine the content of the right. Finally, in the third stage, under the doctrine of procedural autonomy, the principles of full effectiveness of EU law and effective judicial protection apply to assess whether national rules on remedies and procedure are compatible with EU law. . . .
(p. 1041) Some appear to argue that the objective of the EU law right to damages for breach of the competition provisions is compensation and not the effectiveness of the regime. However, it is necessary to distinguish between the content of the right, on the one hand, and its legal basis and function, on the other. The discussion so far has demonstrated that full compensation as the content of the right is consistent with the objective of ensuring the effective enforcement of EU competition law. Furthermore, the competition law cases of Crehan and Manfredi clearly articulate in unambiguous language an enforcement rationale for the conferral of the right to damages.
The enforcement rationale which underpins the right to damages for breach of art.101 or 102 TFEU is further demonstrated by the absence of the ‘protective purpose’ doctrine under EU law. The protective purpose doctrine is well established under German tort law, where the claimant is only entitled to compensation if he suffers harm as a consequence of the violation of a norm the purpose of which was to protect a person in the position of the claimant from the harm in question. The concept is not alien to English tort law where the claimant, to recover damages for breach of statutory duty, must establish that he is within the category of person the statute intended to protect from the harm in question. The Court of Justice in Manfredi appears to have rejected, albeit implicitly, the protective purpose doctrine. The court said that art.101 TFEU must be interpreted as meaning that any individual can rely on the invalidity of an agreement or practice prohibited under that article and, where there is a causal relationship between the latter and the harm suffered, claim compensation for that harm.
The absence of the protective purpose doctrine in EU competition law is consistent with an enforcement rationale. If the legal basis of the right to damages for breach of art.101 or 102 TFEU were to protect individual interests, it would follow that the claimant would have to prove that he belongs to the category of person that art.101 or 102 TFEU intends to protect and that the harm suffered is of the type that those provisions intend to prevent. . . .
Thirdly, it was unclear to what extent EU law could require Member States more positively, or proactively, to facilitate damages claims and to put in place measures or reform institutions in a way which would ensure an effective enforcement framework.134 In particular, the existence, or not, of specialist competition law tribunals or courts, the speed of litigation and individual national rules governing access to information and evidence, litigation costs, funding and cost rules, follow-on actions, mechanisms for collective redress, and remedies for final consumers are all factors which may dramatically affect the culture of competition in each Member State and the feasibility of successfully launching private litigation there. Thus, even if, for example, the CJ had made it clear that EU law demands that indirect purchasers should be able to seek compensation before a national court, such a right might be worthless in a State where the national tools are inadequate to allow that right to be effectively exercised—perhaps because procedural mechanisms do not allow for actions to be grouped together collectively or for relevant evidence to be uncovered, collected, or appropriately processed and assessed. In some jurisdictions individuals may simply be less litigious than in others.135
Arguably, it was principally a combination of these types of features of the national litigation systems that was deterring or constraining EU private claimants in some Member States. For example:
• the cost and risk of litigation frequently operates as a deterrent, especially where claimants have not suffered much loss individually and where class or other consolidated actions and contingency (p. 1042) fees are not available136 or where national cost rules provide disincentives to litigation (for example, where claimants are obliged to pay the defendant’s legal costs if unsuccessful);137
• it has been extremely difficult for claimants to gather the requisite evidence under many national systems. National disclosure rules vary considerably between Member States;138
• proceedings may have been deterred in some States by uncertainty over the weight to be given to decisions of NCAs;
• many national courts have limited experience dealing with antitrust arguments and may not, consequently, be the most appropriate or understanding forum for the hearing.139
Finally, a matter of specific contention became the strained relationship between public and private enforcement. In particular, tensions arose between the need to ensure, on the one hand, the effectiveness of the right to compensation available to victims of anti-competitive practices and, on the other, the effectiveness of the leniency programme, which constitutes a key tool for the Commission in its fight against cartels and, consequently, to public enforcement.
Litigants in the EU frequently sought access to leniency evidence in national proceedings under disclosure rules (as well as separately through seeking access to a competition agency’s file or by filing a claim under EU transparency rules, see Chapter 13140). Although the Commission, supported by some NCAs and Advocate General Mazák, has taken the view that access should not be granted to self-incriminating statements voluntarily provided by leniency applicants as this could substantially reduce the attractiveness of the leniency programme and, in turn, the effective enforcement of Article 101,141 in Pfleiderer the CJ favoured a more balanced approach and held that a national court had, in deciding whether to grant access to leniency documents, to weigh, according to national law and taking into account all the relevant factors in the case,142 the respective interests of the leniency applicant (to have voluntarily submitted corporate statements protected) and the claimant (to have access to documents which would facilitate the claim).143
Court of Justice
19. It must be recalled at the outset that the competition authorities of the Member States and their courts and tribunals are required to apply Articles 101 TFEU and 102 TFEU, where the facts come within (p. 1043) the scope of European Union law, and to ensure that those articles are applied effectively in the general interest (see, to that effect, Case C-439/08, VEBIC . . . para. 56).
20. Neither the provisions of the EC Treaty on competition nor Regulation No 1/2003 lay down common rules on leniency or common rules on the right of access to documents relating to a leniency procedure which have been voluntarily submitted to a national competition authority pursuant to a national leniency programme.
. . .
23. . . . [E]ven if the guidelines set out by the Commission may have some effect on the practice of the national competition authorities, it is, in the absence of binding regulation under European Union law on the subject, for Member States to establish and apply national rules on the right of access, by persons adversely affected by a cartel, to documents relating to leniency procedures.
24. However, while the establishment and application of those rules falls within the competence of the Member States, the latter must none the less exercise that competence in accordance with European Union law (see, to that effect, the judgment of 12 November 2009 in Case C-154/08, Commission v Spain, para. 121 and the case-law cited). In particular, they may not render the implementation of European Union law impossible or excessively difficult (see, to that effect, Case C-298/96, Oelmühle and Schmidt Söhne . . . , paras. 23 and 24 and the case-law cited) and, specifically, in the area of competition law, they must ensure that the rules which they establish or apply do not jeopardise the effective application of Articles 101 TFEU and 102 TFEU (see, to that effect, VEBIC, para. 57).
25. However, as maintained by the Commission and the Member States which have submitted observations, leniency programmes are useful tools if efforts to uncover and bring to an end infringements of competition rules are to be effective and serve, therefore, the objective of effective application of Articles 101 TFEU and 102 TFEU.
26. The effectiveness of those programmes could, however, be compromised if documents relating to a leniency procedure were disclosed to persons wishing to bring an action for damages, even if the national competition authorities were to grant to the applicant for leniency exemption, in whole or in part, from the fine which they could have imposed.
27. The view can reasonably be taken that a person involved in an infringement of competition law, faced with the possibility of such disclosure, would be deterred from taking the opportunity offered by such leniency programmes, particularly when, pursuant to Articles 11 and 12 of Regulation No 1/2003, the Commission and the national competition authorities might exchange information which that person has voluntarily provided.
28. Nevertheless, it is settled case-law that any individual has the right to claim damages for loss caused to him by conduct which is liable to restrict or distort competition (see Case C-453/99, Courage and Crehan  ECR I-6297, paras. 24 and 26, and Joined Cases C-295/04 to C-298/04, Manfredi and Others  ECR I-6619, paras. 59 and 61).
29. The existence of such a right strengthens the working of the Community competition rules and discourages agreements or practices, frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before national courts can make a significant contribution to the maintenance of effective competition in the European Union (Courage and Crehan, para. 27).
30. Accordingly, in the consideration of an application for access to documents relating to a leniency programme submitted by a person who is seeking to obtain damages from another person who has taken advantage of such a leniency programme, it is necessary to ensure that the applicable national rules are not less favourable than those governing similar domestic claims and that they do not operate in such a way as to make it practically impossible or excessively difficult to obtain such compensation (see, to that effect, Courage and Crehan, para. 29) and to weigh the respective interests in favour of disclosure of the information and in favour of the protection of that information provided voluntarily by the applicant for leniency.
31. That weighing exercise can be conducted by the national courts and tribunals only on a case-by-case basis, according to national law, and taking into account all the relevant factors in the case.
32. In the light of the foregoing, the answer to the question referred is that the provisions of European Union law on cartels, and in particular Regulation No 1/2003, must be interpreted as not precluding a (p. 1044) person who has been adversely affected by an infringement of European Union competition law and is seeking to obtain damages from being granted access to documents relating to a leniency procedure involving the perpetrator of that infringement. It is, however, for the courts and tribunals of the Member States, on the basis of their national law, to determine the conditions under which such access must be permitted or refused by weighing the interests protected by European Union law.
Further, in Bundeswettbewerbsbehörde v Donau Chemie,144 the CJ held that an Austrian law which prohibited disclosure to third parties of court files on public law competition proceedings, unless all parties to the proceedings agreed, was not compatible with the principle of effectiveness and so conflicted with EU law. ‘[I]n competition law . . . any rule that is rigid, either by providing for absolute refusal to grant access . . . or for granting access as a matter of course . . . is liable to undermine the effective application of . . . Article 101’.145 The CJ thus reiterated that the national court should have the opportunity to consider the issues on a case-by-case basis weighing the competing interests. Although both of these cases stressed that the national court should have the opportunity to consider the issues on a case-by-case basis weighing the competing interests, in EnBW146 the Court did, in the context of proceedings relating to the Transparency Regulation, recognise that access should be required only in cases of absolutely necessity where relevant evidence was not available from alternative mechanisms. In addition, since the end of 2017 the Damages Directive has made it clear that national courts will not be able to give access to leniency statements (or settlement submissions) under national disclosure rules.147
(iv) A Need for Clarification and Harmonisation: The EU Package and Damages Directive
The previous discussion establishes that although EU law made it clear that damages must in principle be available to compensate breaches of Articles 101 and 102, national rules retained significant impact on the likelihood of a claim’s success or failure. In 2005 the Commission expressed its view that as ‘[s]ignificant obstacles exist in the different Member States to the effective operation of damages actions for infringement of Community antitrust law’148 the system of damages presented ‘a picture of “total underdevelopment” ’.149 Further, even though private enforcement had steadily been increasing, from approximately 54 decided judgments within the EU in 1999 to 146 in 2011,150 the Commission concluded that ‘most victims of infringements of the EU competition rules in practice do not obtain compensation for the harm suffered’;151 victims only commenced private actions in 25 per cent of cases where antitrust infringement decisions had been adopted by the Commission.
Although not all agreed that steps were necessary to stimulate private enforcement,152 or that EU measures were required, desirable, and/or practicable,153 the Commission reflected deeply on the (p. 1045) question of whether measures could, and should, be adopted to amend and/or harmonise national procedural and substantive rules governing damages claims further, for example on costs, access to evidence, limitation periods, standing, class or representative actions, fault, and/or defences, such as the passing-on defence.
In its 2005 Green Paper on Damages actions for breach of the EC antitrust rules,154 and an accompanying Commission Staff Working Paper,155 the Commission thus sought: (a) ‘to identify the main obstacles to a more efficient system of damages claims and to set out different options for further reflection and possible action to improve both follow-on actions (for example, cases in which the civil action is brought after a competition authority has found an infringement) and stand-alone actions (that is to say, actions which do not follow on from a prior finding by a competition authority of an infringement of competition law)’;156 and (b) to invite a discussion on obstacles identified and options formulated for overcoming them and allowing a competition culture to develop. Following the receipt of comments, it published further proposals in its White Paper on Damages actions (to be read together with a Commission Staff Working Document and an Impact Assessment Report)157 recommending a broad range of measures aimed to ensure that all victims of anti-competitive behaviour are able to obtain full compensation (but not punitive or multiple damages) for harm suffered but that unmeritorious claims are not encouraged.158 It recognised, however, that ‘[i]mproving compensatory justice would . . . inherently also produce beneficial effects in terms of deterrence of future infringements and greater compliance with [EU] antitrust rules. Safeguarding undistorted competition is an integral part of the internal market and important for implementing the Lisbon strategy. A competition culture contributes to better allocation of resources, greater economic efficiency, increased innovation and lower prices.’159 It thus concluded that EU instruments were requisite to overcome barriers to litigation and to stimulate and harmonise damages actions,160 and to balance it with public enforcement. In its view the new measures adopted ‘will democratise enforcement and empower the victims of antitrust infringements to receive effective compensation …’.161
In considering what EU measures should be enacted the Commission had a tortuous path to navigate, both politically and legally.162 Not only did it have to convince the Parliament163 and the Council that EU legislation was required which encroaches on national litigation systems and entrenched principles developed within them,164 but it had to reflect on an array of factors when considering what those measure should look like and what they should cover. In addition to considering how (p. 1046) to overcome national obstacles to litigation, it has thus had to consider: what legislative proposals would realistically be accepted, how it should balance the potential deterrent, compensatory, and other functions of private actions; how it should balance private and public enforcement; whether it should adopt a more holistic, all-encompassing, or a more gradual, sequential approach; and how to encompass lessons emerging from the US experience and to safeguard against an unleashing of some of the excesses connected with the litigation culture developed there.165 It has therefore had to exercise caution to ensure that, in seeking to bolster and encourage private enforcement in the EU, rules are not made so claimant friendly that antitrust litigation gets out of control and encourages undeserving claims to be commenced (creating the risk of false positives).166 Were that to occur, courts might become inclined to adopt narrow constructions of substantive and procedural rules making it harder for public enforcement agencies,167 as well as private litigants, to establish violations.
An examination of the package of EU measures illustrates how the Commission and the legislature sought to resolve the issues and to alter private enforcement in the Member States (see also Table 14.1). A first (obvious) point is that the Commission took the view that legislation governing damages action was required to clarify and harmonise certain issues (only, minimum harmonization). Although some matters have been dealt with primarily through soft recommendations and guidance, others (many relating to procedural change) have been dealt with through harmonising legislation, the Damages Directive.
(v) The Provisions of the Damages Directive
a. The Core Objectives: Full Compensation for All Victims of Antitrust Infringements, Levelling the Playing Field Throughout the EU, and Coordination of Public and Private Enforcement
Article 1 explains that the Directive ‘sets out certain rules necessary to ensure that anyone who has suffered harm caused by an infringement of Article 101 or 102 of the Treaty or of national competition law, can effectively exercise the right to full compensation for that harm’ and which are designed to foster undistorted competition in the internal market, to ensure equivalent protection for those who have suffered antitrust harm throughout the EU, and to coordinate public and private enforcement.
These objectives of ensuring compensation to all victims, levelling the playing field across Member States, and facilitating the complementary working of public and private enforcement, are designed to be achieved through the Directive’s provisions dealing with, in particular, access to evidence, joint and several liability of multiple defendant and standing of indirect purchasers, and the passing-on defence. Some important definitions are set out in Article 4.
b. The Compensatory Approach
In line with the approach advocated in the White Paper, the Directive has generally embraced the compensatory approach,168 reflecting the Commission’s articulated view that public and private enforcement should pursue different, albeit complementary, objectives and that all victims of antitrust violations, including small and medium-sized enterprises (SMEs) and consumers, should be able to obtain damages. Consequently, Article 3 mandates national courts to ensure that any natural or legal (p. 1047) person who has suffered harm caused by a competition law infringement is able to claim and to obtain full compensation—for actual loss and for loss of profit, plus the payment of interest.169 The Directive establishes a rebuttable evidential presumption of harm (but no specific amount of harm) in cartel (but not other) cases170 and empowers national courts to estimate the amount of harm in cases where precise quantification is impossible or excessively difficult.171 The Commission’s practical guide on the quantification of harm for damages is designed to assist national courts in this sphere.172 It also specifies that such actions shall not lead to overcompensation, for example by means of punitive or multiple damages.173
Article 3 Right to full compensation
1. Member States shall ensure that any natural or legal person who has suffered harm caused by an infringement of competition law is able to claim and to obtain full compensation for that harm.
2. Full compensation shall place a person who has suffered harm in the position in which that person would have been had the infringement of competition law not been committed. It shall therefore cover the right to compensation for actual loss and for loss of profit, plus the payment of interest.
3. Full compensation under this Directive shall not lead to overcompensation, whether by means of punitive, multiple or other types of damages.
Articles 12 and 14 clarify that indirect, as well as direct, purchasers can sue (and indeed in some cases overcharges are presumed to be passed on to them by direct purchasers, see especially Article 14(2)). Article 13 requires, in line with the principle that overcompensation must not ensue, national courts to ensure the passing-on defence is available to defendants; the burden of proof, however, is on the defendant to establish passing-on has occurred. These provisions, which will demand rigorous analysis to determine where the loss falls and the appropriate level of damages, widen the pool of claimants beyond those permitted under federal antitrust rules in the US. Recognising the complexity that is likely to follow for national courts in applying a passing-on defence, the Directive provides that ‘[t]he Commission shall issue guidelines for national courts on how to estimate the share of the overcharge which was passed on to the indirect purchaser’ and the Commission is in the process of preparing these.174
Article 12 Passing-on of overcharges and the right to full compensation
1. To ensure the full effectiveness of the right to full compensation as laid down in Article 3, Member States shall ensure that, in accordance with the rules laid down in this Chapter, compensation of harm can be claimed by anyone who suffered it, irrespective of whether they are direct or indirect purchasers from an infringer, and that compensation of harm exceeding that caused by the infringement of competition law to the claimant, as well as the absence of liability of the infringer, are avoided.
2. In order to avoid overcompensation, Member States shall lay down procedural rules appropriate to ensure that compensation for actual loss at any level of the supply chain does not exceed the overcharge harm suffered at that level.
3. This Chapter shall be without prejudice to the right of an injured party to claim and obtain compensation for loss of profits due to a full or partial passing-on of the overcharge.
4. Member States shall ensure that the rules laid down in this Chapter apply accordingly where the infringement of competition law relates to a supply to the infringer.
5. Member States shall ensure that the national courts have the power to estimate, in accordance with national procedures, the share of any overcharge that was passed on.
Article 13 Passing-on defence
Member States shall ensure that the defendant in an action for damages can invoke as a defence against a claim for damages the fact that the claimant passed on the whole or part of the overcharge resulting from the infringement of competition law. The burden of proving that the overcharge was passed on shall be on the defendant, who may reasonably require disclosure from the claimant or from third parties.
Article 14 Indirect purchasers
1. Member States shall ensure that, where in an action for damages the existence of a claim for damages or the amount of compensation to be awarded depends on whether, or to what degree, an overcharge was passed on to the claimant, taking into account the commercial practice that price increases are passed on down the supply chain, the burden of proving the existence and scope of such a passing-on shall rest with the claimant, who may reasonably require disclosure from the defendant or from third parties.
2. In the situation referred to in paragraph 1, the indirect purchaser shall be deemed to have proven that a passing-on to that indirect purchaser occurred where that indirect purchaser has shown that:
(a) the defendant has committed an infringement of competition law;
(b) the infringement of competition law has resulted in an overcharge for the direct purchaser of the defendant; and
(c) the indirect purchaser has purchased the goods or services that were the object of the infringement of competition law, or has purchased goods or services derived from or containing them.
This paragraph shall not apply where the defendant can demonstrate credibly to the satisfaction of the court that the overcharge was not, or was not entirely, passed on to the indirect purchaser.
The Directive has sought to tackle some (but not all) of the practical difficulties which have been confronting victims of EU antitrust infringements, to encourage damages actions and to establish certain minimum standards for litigation throughout the EU. In Article 5 it addresses the problem of (p. 1049) information asymmetry and that disclosure is not widely available in some Member States by providing that, subject to certain conditions, national courts must be able to order a defendant (or claimant) to disclose relevant evidence under its control where a request is accompanied by a reasoned justification sufficient to support its plausibility.175 National courts must however limit disclosure of evidence to that which is proportionate176 and must protect confidential information and give full effect to legal professional privilege. In order to ensure that such actions do not disrupt public enforcement, however, Articles 6 and 7 of the Directive provides for more limited access to material in the files of competition authorities and, overriding the case law of the CJ,177 limits national rules governing disclosure by providing an absolute bar on the disclosure of leniency statements and settlement submissions.178
Article 5 Disclosure of evidence
1. Member States shall ensure that in proceedings relating to an action for damages in the Union upon request of a claimant who has presented a reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages, national courts are able to order the defendant or a third party to disclose relevant evidence which lies in their control, subject to the conditions set out in this Chapter. Member States shall ensure that national courts are able, upon request of the defendant, to order the claimant or a third party to disclose relevant evidence. This paragraph is without prejudice to the rights and obligations of national courts under Regulation (EC) No 1206/2001.
2. Member States shall ensure that national courts are able to order the disclosure of specified items of evidence or relevant categories of evidence circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts in the reasoned justification.
3. Member States shall ensure that national courts limit the disclosure of evidence to that which is proportionate. In determining whether any disclosure requested by a party is proportionate, national courts shall consider the legitimate interests of all parties and third parties concerned. They shall, in particular, consider:
(a) the extent to which the claim or defence is supported by available facts and evidence justifying the request to disclose evidence;
(b) the scope and cost of disclosure, especially for any third parties concerned, including preventing non-specific searches for information which is unlikely to be of relevance for the parties in the procedure;
(c) whether the evidence the disclosure of which is sought contains confidential information, especially concerning any third parties, and what arrangements are in place for protecting such confidential information.
4. Member States shall ensure that national courts have the power to order the disclosure of evidence containing confidential information where they consider it relevant to the action for damages. Member States shall ensure that, when ordering the disclosure of such information, national courts have at their disposal effective measures to protect such information.
5. The interest of undertakings to avoid actions for damages following an infringement of competition law shall not constitute an interest that warrants protection.
6. Member States shall ensure that national courts give full effect to applicable legal professional privilege under Union or national law when ordering the disclosure of evidence. (p. 1050)
7. Member States shall ensure that those from whom disclosure is sought are provided with an opportunity to be heard before a national court orders disclosure under this Article.
8. Without prejudice to paragraphs 4 and 7 and to Article 6, this Article shall not prevent Member States from maintaining or introducing rules which would lead to wider disclosure of evidence.
Article 6 Disclosure of evidence included in the file of a competition authority
1. Member States shall ensure that, for the purpose of actions for damages, where national courts order the disclosure of evidence included in the file of a competition authority, this Article applies in addition to Article 5.
2. This Article is without prejudice to the rules and practices on public access to documents under Regulation (EC) No 1049/2001.
3. This Article is without prejudice to the rules and practices under Union or national law on the protection of internal documents of competition authorities and of correspondence between competition authorities.
4. When assessing, in accordance with Article 5(3), the proportionality of an order to disclose information, national courts shall, in addition, consider the following:
(a) whether the request has been formulated specifically with regard to the nature, subject-matter or contents of documents submitted to a competition authority or held in the file thereof, rather than by a non-specific application concerning documents submitted to a competition authority,
(b) whether the party requesting disclosure is doing so in relation to an action for damages before a national court; and
(c) in relation to paragraphs 5 and 10, or upon request of a competition authority pursuant to paragraph 11, the need to safeguard the effectiveness of the public enforcement of competition law.
5. National courts may order the disclosure of the following categories of evidence only after a competition authority, by adopting a decision or otherwise, has closed its proceedings:
(a) information that was prepared by a natural or legal person specifically for the proceedings of a competition authority;
(b) information that the competition authority has drawn up and sent to the parties in the course of its proceedings; and
(c) settlement submissions that have been withdrawn.
6. Member States shall ensure that, for the purpose of actions for damages, national courts cannot at any time order a party or a third party to disclose any of the following categories of evidence:
(a) leniency statements; and
(b) settlement submissions.
7. A claimant may present a reasoned request that a national court access the evidence referred to in points (a) or (b) of paragraph 6 for the sole purpose of ensuring that their contents correspond to the definitions in points (16) and (18) of Article 2. In that assessment, national courts may request assistance only from the competent competition authority. The authors of the evidence in question may also have the possibility to be heard. In no case shall the national court permit other parties or third parties access to that evidence.
8. If only parts of the evidence requested are covered by paragraph 6, the remaining parts thereof shall, depending on the category under which they fall, be released in accordance with the relevant paragraphs of this Article.
9. The disclosure of evidence in the file of a competition authority that does not fall into any of the categories listed in this Article may be ordered in actions for damages at any time, without prejudice to this Article. (p. 1051)
10. Member States shall ensure that national courts request the disclosure from a competition authority of evidence included in its file only where no party or third party is reasonably able to provide that evidence.
11. To the extent that a competition authority is willing to state its views on the proportionality of disclosure requests, it may, acting on its own initiative, submit observations to the national court before which a disclosure order is sought.
Article 7 Limits on the use of evidence obtained solely through access to the file of a competition authority
1. Member States shall ensure that evidence in the categories listed in Article 6(6) which is obtained by a natural or legal person solely through access to the file of a competition authority is either deemed to be inadmissible in actions for damages or is otherwise protected under the applicable national rules to ensure the full effect of the limits on the disclosure of evidence set out in Article 6.
2. Member States shall ensure that, until a competition authority has closed its proceedings by adopting a decision or otherwise, evidence in the categories listed in Article 6(5) which is obtained by a natural or legal person solely through access to the file of that competition authority is either deemed to be inadmissible in actions for damages or is otherwise protected under the applicable national rules to ensure the full effect of the limits on the disclosure of evidence set out in Article 6.
3. Member States shall ensure that evidence which is obtained by a natural or legal person solely through access to the file of a competition authority and which does not fall under paragraph 1 or 2, can be used in an action for damages only by that person or by a natural or legal person that succeeded to that person’s rights, including a person that acquired that person’s claim.
d. Follow-on Actions, Limitation, and Joint and Several Liability
The Directive also clarifies that:
• as is the case for Commission findings,179 the finding of an infringement by an NCA or a review court should be irrefutably established for the purposes of damages claims based on it before a national court in that State (so in these follow-on actions a claimant will have to establish only causation, loss, and the quantum of damages,180 not the existence of the breach);181
• national limitation periods must not be less than five years and cannot commence to run before the infringement has ceased and the claimant knows, or can reasonably be expected to know, of it. Further, to ensure effective interaction between public and private enforcement, the limitation period must be suspended or interrupted until public enforcement proceedings are final (when the decision cannot be, or can no longer be, appealed by ordinary means182) or terminated.183 Claimants must therefore have a reasonable time within which to seek compensation; and (p. 1052)
• undertakings responsible for an infringement through joint behaviour should be jointly and severally liable for it.184 Thus, in principle, any infringer may potentially be liable for the entire loss caused by the breach; each must however be able to seek contributions from joint infringers reflecting their relative responsibility for the harm. Exceptions apply for certain SMEs (which are not ringleaders, repeat offenders, or firms that have coerced others into infringements) and full immunity recipients. Such firms are generally liable only for the damage to their direct and indirect purchasers. Settling defendants also benefit from an exemption from joint and several liability and limitations on contribution.185
e. Consensual Dispute Resolution
The Directive also incorporates provisions relating to, and designed to incentivise, consensual dispute resolution, such as the suspension of limitation periods during the period.186
f. The Impact of the Directive
The Commission has been keen to ensure that unmeritorious antitrust claims are not encouraged, so avoiding the ‘toxic cocktail’ of provisions alleged to exist in the US (consisting of, in particular, class actions, contingency fee arrangements, favourable attorneys’ fees rules, treble damages, broad discovery, jury trials, and the rule of joint and several liability, with no right of contribution).187 A legitimate question, however, may be whether the reforms are sufficient to achieve the Commission’s objective of increasing, and harmonising, private damages actions across the EU. Arguably, to incentivise the commencement of meritorious antitrust claims more still needs to be done to overcome the impediments to litigation, to reduce its cost for claimants, and to increase the likelihood of reward.188 Indeed, some core problems seem potentially to exist.
First, because the Commission has not adopted a holistic approach, attempting to introduce a completely harmonised framework,189 a number of not insignificant obstacles to national actions and areas of legal ambiguity appear to remain. For example, the Directive does not contain provisions dealing with some important factors which might impact on the success of a national claim, for example: which courts should hear antitrust damages actions; the substantive grounds and conditions of liability—whether the type of liability should be based on tort, the extent to which fault or negligence should be required as a basis for negligence, and whether parent companies or managers can or must be held liable for the conduct of their subsidiaries (in Skanska Industrial Solutions, however, the CJ confirmed that the determination of which entity is liable to pay damages is governed by EU law and that it is the undertaking—an autonomous concept of EU law—which is liable);190 (p. 1053) admissibility of economic evidence; causation; remoteness; quantification of damages (dealt with only in the form of a non-binding practical guide); cost rules; economic or rules governing admissibility of expert evidence; motions to dismiss; summary judgment; or the availability of class actions or collective redress. Indeed, a core concern in relation to the latter is that the Recommendation191 ‘soft law’, on collective redress, based on the ‘opt-in’ principle (under which claimant parties are formed through directly expressed consent of their members), will be insufficient to bolster the position of final consumers and SMEs in mass-harm situations;192 classes will encompass only a small percentage of antitrust victims.193
A number of critical issues will therefore continue to be governed by national law, subject to their compliance with the principles of effectiveness and equivalence (see Table 14.1).
Table 14.1 The impact of the Damages Directive on private antitrust actions in the EU Member States
The position prior to the implementation of the Damages Directive
The position once the Damages Directive is implemented
Statutory provision governing private rights of action?
No statutory provision but principles developed by the CJ. Essentially EU right to compensation/injunction governed by national law subject to it being compatible with EU principles of equivalence and effectiveness (in particular rules must not render exercise of rights practically impossible or excessively difficult)
Directive: requires Member States to set out rules necessary to ensure that anyone who has suffered harm caused by a competition law infringement can obtain full compensation (Art. 1). Directive does not deal with who is liable, under what conditions, the basis of the claim, or with the right to an injunction
Compensatory principle? Punitive or multiple damages?
Governed by national law subject to EU principles of equivalence and effectiveness (punitive damages must be available if available in equivalent situations under national law, Manfredi)
Compensation for action loss and loss of profit, plus interest. Full compensation shall not lead to over compensation whether by means of, e.g., punitive or multiple damages (Art. 3)
Standing and remoteness
Governed by national law subject to EU principles of equivalence and effectiveness
Compensation for any person that has suffered harm but no provision as to how rules of remoteness to be applied
Passing-on and indirect purchasers
Governed by national law subject to EU principles of equivalence and effectiveness
Indirect purchaser actions expressly permitted and passing-on defence mandated (Arts. 12 and 14)
Application of illegality defence, in pari delicto doctrine
Governed by national law but principle of effectiveness requires damages unless claimant bears significant responsibility for the breach (Crehan)
Follow-on cases: weight of public law finding
Commission decisions binding but impact of NCA decisions governed by national law (Reg. 1/2003, Art. 16)
Commission decisions binding and decisions of NCA or review court binding on national courts in that Member State (Art. 9)
Causation, harm, and quantification
Governed by national law subject to EU principles of equivalence and effectiveness
Evidential presumption of harm in cartel cases—national courts to estimate harm (Art. 17)
Governed by national law subject to EU principles of equivalence and effectiveness—litigation in some Member States (see e.g. Manfredi and UK), especially as to when limitation periods start to run
Limitation periods must not be less than 5 years—stipulation of when periods can start to run (Art. 10)
Availability of class actions
Governed by national law subject to EU principles of equivalence and effectiveness—but Recommendation for Member States to adopt opt-in class actions
Governed by national law—some Member States apply loser pays principle
Disclosure of evidence
Governed by national law—disclosure not widely available in civil systems although recognised by common law systems (e.g. UK/Ireland)
Subject to some exceptions, provision for disclosure of evidence supported by plausible claim (Art. 5)
Impact on leniency
National court must balance competing interests of claimant and defendant when deciding when to order disclosure of leniency documents—no absolute rule against or in favour of disclosure permitted
Absolute bar on disclosure of leniency documents and settlement decisions (Art. 6)
Joint and several liability
Governed by national law subject to EU principles of equivalence and effectiveness
Joint and several liability for co-infringers with exceptions for certain SMEs and leniency applicants
Admissibility of expert evidence
Governed by national law subject to EU principles of equivalence and effectiveness
Motions to dismiss and summary judgment
Governed by national law subject to EU principles of equivalence and effectiveness
Secondly, even in some areas where harmonising rules have been adopted, considerable scope for divergence remains, which will affect the incentive to sue and place of action.194 Not only do discrepancies in implementation exist (and perhaps even some infringements of the duty to transpose the Directive faithfully),195 but some Member States provide more favourable rules. In addition, it seems likely that pre-existing heterogeneity between legal orders on issues such as calculation of compensation and interest and access to evidence, are likely to linger.196 For example, traditional (p. 1055) national approaches to disclosure are liable to result in the adoption of varying interpretations of the Directive’s requirements relating to the plausibility and proportionality of a request for disclosure. Further as the Directive does not deal with cost rules, including those which govern who bears the cost of disclosure, and leaves Member States the opportunity to introduce more favourable national rules, it seems likely that a number of Member States will seek to encourage and facilitate private actions, for example by adopting more generous rules relating to disclosure, limitation periods, and class actions. Indeed, the question of how private actions should be encouraged has also been discussed by some of the Member States.197 The existence of national differences is therefore likely to continue to affect where litigants choose to commence their actions and to result in forum-shopping.
Thirdly, the working of a number of the Directive’s provisions seems likely to detract from its goal of facilitating national proceedings by introducing considerable complexities into them, for example as the courts grapple with the intricate rules applicable to limitation, joint and several liability, and passing-on. There is particular anxiety that recognition of the passing-on defence (requiring account to be taken of the over-charge, the pass-on, and volume effects) will: raise acute challenges for national courts, which have to date relied on legal, rather than economic, approaches to assessing damage suffered in competition cases;198 and have a negative effect on direct purchasers’ incentives to bring legal actions, both by decreasing the expected reward from litigation or settlement and by increasing the legal costs of litigation. This will be problematic as, especially given the absence of harmonised rules on collective redress, indirect purchaser actions are likely to remain rare.199
These types of concerns have led some to conclude that the Directive fails its very own objectives; most of the provisions do not encourage victims to seek compensation and the Directive does not deal with some of the most crucial factors impacting on antitrust litigation—legal costs, cost shifting, and claim aggregation.200 The success of the Directive may therefore depend significantly on the individual measures that have been adopted by each of the Member States in implementing it, the extent to which national rules supplement and go beyond it, and how national courts apply the new rules.201 Incentives for forum-shopping are therefore likely to remain.
1. The Commission’s modernisation programme was designed to allow the Commission to refocus its scarce resources and to encourage greater enforcement of the rules at the national level. The Commission has not only sought to enlist the aid of NCAs in the enforcement of the rules, but has also been eager that private actions should be used more frequently to bolster public enforcement and ensure compensation of antitrust victims. Both the Commission and a number of Member States have taken steps to encourage private enforcement, particularly damages actions.
2. Although the EU Courts have made it clear that national courts must ensure effective judicial protection of rights conferred by Articles 101 and 102, litigants in competition cases have continued (p. 1056) to face a number of major hurdles to their claims. The new Damages Directive and package is designed to overcome those impediments and to stimulate private litigation, which has begun to develop rapidly in some Member States, across the EU.
3. An examination of the Damages Directive indicates that over-enforcement cannot be anticipated as a consequence of the current reforms. Although in some respects EU law goes further than US federal antitrust law (expanding to umbrella and indirect purchaser claims), the cocktail of provisions encouraging litigation in the US is not provided for in the Directive.202 Rather, the Directive provides for full—but not over—compensation, seeks to avoid fishing exercises by restricting disclosure to scenarios where a request for evidence is plausible, provides for joint and several liability but with some limits and no bar on a right to contribution, and does not deal with attorney fees, jury trials, or class actions (the latter being dealt with only by a Recommendation). Although one concern could be that as substantive EU antitrust laws are interpreted more broadly than their US counterparts in some areas, such as vertical restraints and unilateral conduct, there is a danger that greater volumes of private action will create a risk of false positives, the EU package does not provide huge additional incentives to the launch of these types of claim. Rather, many of its more detailed provisions focus on measures designed to stimulate actions in cartel damages cases; indeed, its provisions seem likely to have greatest impact in follow-on cases. Further, it could be argued that these are areas where litigation should be encouraged, as few competition agencies have sufficient resources to dedicate towards enforcement in these spheres.
4. Greater concern may thus centre on the issue of whether the reforms have done enough to overcome the impediments to litigation and to achieve the Commission’s objectives of increasing, and harmonising, private damages actions across the EU. It has been seen that some of the provisions seem to detract from these objectives.203
5. Nonetheless, it is clear that the Commission and the EU legislature have taken a bold first step in the journey towards encouraging damages claims throughout the EU and the development of a coherent EU system governing them. Indeed, it arguably constitutes the ‘most complete vertical example of European tort law to date’.204 The Commission has worked hard to avoid the pitfalls experienced in the US and the new framework lays the foundations for the law in this area to develop sequentially as the EU and national courts interpret and assess the full implications of the provisions in cases arising before them. It is to be expected, therefore, that private actions in Europe will gradually become more commonplace. Whether the package of reforms will be a significant success, however, and/or whether further measures will be required, still remains to be seen.
6. Further Reading
Andreangeli, A., Private Enforcement of Antitrust: Regulating Corporate Behaviour through Collective Claims in the EU and the US (Edward Elgar, 2014)Find this resource:
Bergström, M., Iacovides, M., and Strand, M. (eds.), Harmonising EU Competition Litigation: The New Directive and Beyond (Hart Publishing, 2016)Find this resource:(p. 1057)
Ioannidou, M., Consumer Involvement in Private EU Competition Law Enforcement (Oxford University Press, 2016)Find this resource:
Jones, A., Restitution and European Community Law (LLP, 2000), Chap. 6Find this resource:
Komninos, A. P., EC Private Antitrust Enforcement: Decentralised Application of EC Competition Law by National Courts (Hart Publishing, 2008)Find this resource:
Parcu, P. L., Monti G., and Botta, M. (eds.), Private Enforcement of EU Competition Law (Edward Elgar, 2018)Find this resource:
Rodger, B. (ed.), Competition Law: Comparative Private Enforcement and Collective Redress Across the EU (Wolters Kluwer, 2014)Find this resource:
Wils, W., Principles of European Antitrust Enforcement (Hart Publishing, 2005), Chap. 4Find this resource:
Drake, S., ‘Scope of Courage and the Principle of “Individual Liability” for Damages: Further Development of the Principle of Effective Judicial Protection by the Court of Justice’ (2006) 30 ELRev 841Find this resource:
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1 W. Wils, ‘The Relationship Between Public Antitrust Enforcement and Private Actions for Damages’ (2009) 32 World Competition 3. See also N. Dunne, ‘The Role of Private Enforcement within EU Competition Law’ (2013–2014) 16 Cambridge Yearbook of European Legal Studies 143 (conceptualising competition law as rules to correct public wrongs, private wrongs, or market failures).
2 See A. I. Gavil, ‘Designing Private Rights of Action for Competition Policy Systems: The Role of Interdependence and the Advantages of a Sequential Approach’ in P. Lowe and M. Marquis (eds.), European Competition Law Annual 2011: Integrating Public and Private Enforcement Competition Law—Implications for Courts and Agencies (Hart Publishing, 2014) (remediation provides means for halting offensive conduct and perhaps correcting for its adverse competitive effects, as with equitable and injunctive relief) and A. Komninos, ‘Private Enforcement in the EU with Emphasis on Damages Actions’ in I. Lianos and D. Geradin (eds.), Handbook on European Competition Law: Enforcement and Procedure (Edward Elgar, 2013).
3 But see e.g. OFT Press Release 88/06, ‘Independent Schools agree settlement’, 19 May 2006 (where the UK competition authority accepted a settlement whereby the schools which had engaged in price-fixing agreed to make an ex gratia payment into a fund for the benefit of the victims of the infringement) and the provisions on voluntary redress in the UK’s Consumer Rights Act 2015, Sch. 8. See further Wils, n. 1, 12; Gavil, n. 2, 6 and n. 186.
5 See e.g. H. J. Hovenkamp, ‘Quantification of Harm in Private Antitrust Actions in the United States’, University of Iowa Legal Studies Research Paper, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1758751>, Report for the European Commission, ‘Making antitrust damages actions more effective in the EU: welfare impact and potential scenarios’, DG COMP/2006/A3/012D, 28 and D. Crane, The Institutional Structure of Antitrust Enforcement (Oxford University Press, 2011), 163. It is difficult to get completely precise statistics relating to the ratio of private to public enforcement however (e.g. because many separate private action cases may be filed in relation to the same case before consolidation, there may be over-counting of private actions. In contrast, as many public cases may be resolved before a case is filed, there may be under-counting of government actions).
6 ‘[T]he conventional wisdom in the international competition community [is] that U.S.-style private enforcement has been a disaster’, R. H. Lande, ‘The Proposed Damages Directive: The Real Lessons from the United States’ (2014) 2 CPI Antitrust Chronicle 1, 1.
9 See e.g. M. Kuijpers, S. Tuinenga, S. Wisking, K. Dietzel, S. Campbell, and A. Fritzsche, ‘Actions for Damages in the Netherlands, the United Kingdom, and Germany’ (2015) 6 JECLAP 129.
10 Commission, ‘Proposal for a Directive of the European Parliament and the Council on certain rules governing actions for damages under national law for infringements of the Competition law provisions of the Member States and the European Union’, COM(2013) 404 final, Explanatory Memorandum 1.2.
11 They focus on damages actions (but see n. 15), see especially: a study prepared for DG Comp by Ashurst on damages actions before national courts of the then 25 Member States, D. Waelbroeck, D. Slater, and G. Even-Shoshan, ‘Ashurst Study on the conditions of claims for damages in case of infringement of EC competition rules: Comparative Report’ (2004) (The Ashurst Report); Commission, ‘Green Paper on Damages Actions for Breach of the EC Antitrust Rules’, COM(2005) 672 final, Commission, ‘Staff Working Paper, Annex to the Green Paper on Damages Actions for Breach of the EC Antitrust Rules’, SEC(2005) 1732; and Commission, ‘White Paper on Damages Actions for Breach of the EC Antitrust Rules’, COM(2008) 165 final.
13 Dir. 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union  OJ L349/1.
15 Proposal for a Directive of the European Parliament and the Council on representative actions for the protection of the collective interests of consumers, and repealing Dirs. 2009/22/EC, COM(2018) 184 final, SWD(2018) 98 final and Commission Recommendation 2013/396/EU of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law  OJ L201/60 (enabling consumers, by joining claims with others, to get access to justice and pursue infringements of competition law, where the cost of individual action may otherwise have acted as a deterrent, see recital 9). (Although the Commission originally intended to incorporate provisions on collective redress within the Damages Dir., this proposal caused controversy, especially in the European Parliament.) The Recommendation applies not only in the field of competition law but also horizontally to consumer protection, environmental protection, data protection, financial services, and other areas where claims for injunctions or damages in respect of breaches of EU law are relevant, recital 7.
16 Commission, ‘Staff Working Document—Practical Guide on Quantifying Harm in Actions for Damages Based on Breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union’, SWD(2013) 205.
18 S. Weber Waller, ‘Towards a Constructive Public–Private Partnership to Enforce Competition Law’ (2006) 29 World Competition 367.
19 See A. P. Komninos, ‘Public and Private Antitrust Enforcement in Europe: Complement? Overlap?’ (2006) 3 Competition Law Review 1, 9; R. Nazzini, and A. Nikpay, ‘Private Actions in EC Competition Law’ (2008) 4 Competition Policy International 107, 109.
20 OECD (2011), 12; A. Komninos, EC Private Antitrust Enforcement: Decentralised Application of the EC Competition Law by National Courts (Hart Publishing, 2008), 9; R. Van den Bergh, ‘Private Enforcement of European Competition Law and the Persisting Collective Action Problem’ (2013) 20 Maastricht J of European and Comparative Law 12, 15; S. Campbell and T. Feunteun, ‘Designing a Balanced System: Damages, Deterrence, Leniency and Litigants’ Rights—A Claimant’s Perspective’ in Lowe and Marquis, n. 2, 27, 28–29; W. Kovacic, ‘Private Rights of Action and the Enforcement of Public Competition Laws’ in C. Baudenbacher (ed.), Current Developments in European and International Competition Law: 17th St Gallen International Competition Law Forum ICF 2010 (Helbing & Lichtenhahn, 2011), 421.
21 G. Becker and G. Stigler, ‘Law Enforcement, Malfeasance and Compensation of Enforcers’ (1974) 3 J of Legal Studies 1, 14. See also G. Becker, ‘Crime and Punishment: An Economic Approach’ (1968) 76 J of Political Economy 169.
23 Clayton Act 1914, s. 4.
24 Ibid., s. 16.
25 Ibid., s. 5(a).
26 The ordinary limitation period of four years also gets suspended during government enforcement proceedings, ibid., ss. 4B and 5(i).
27 Ibid., s. 5(a).
29 See e.g. E. Levi, ‘The Antitrust Laws and Monopoly’ (1974) 14 Univ Chic LR 153, C. Kaysen and D. Turner, Antitrust Policy (Harvard University Press, 1959).
30 At this time the Chief Justice was Earl Warren (1953–1969).
31 For example, courts have applied lesser burdens of proof as to the amount of damages in antitrust cases, e.g. Zenith Radio Corp v Hazeltine Research, 395 US 100 (1969).
32 H. Hovenkamp, The Antitrust Enterprise: Principle and Execution (Harvard University Press, 2005), 1.
34 So permitting small claimants to spread costs and aggregate similar claims, making them easier and more economical to bring, see Federal Rules of Civil Procedure (FRCP), Rule 23 (defining the standards for bringing class actions).
35 Criminal antitrust proceedings always involve trial by jury (US Const., Fifth Amendment) and both the plaintiff and the defendant can demand a jury trial in civil cases (US Const., Seventh Amendment).
36 Texas Industries v Radcliff Materials, Inc, 451 US 630 (1981).
37 Hanover Shoe Inc v United Shoe Machine Corp, 392 US 481 (1968).
38 Illinois Brick Co v Illinois, 431 US 720 (1977).
39 Otherwise such claims would become excessively complicated, private actions would be deterred, and a wrongdoer in breach would be able to retain his unlawful profits and the fruits of his own illegality. See also A. Jones and D. Beard, ‘Co-contractors, Damages and Article 81: The ECJ Finally Speaks’  ECLR 246.
40 If the fact that loss has been passed on by the purchaser may not be taken into account defensively in a claim between the seller and the purchaser, it should not be open to an indirect purchaser to use the passing-on principle offensively in damages proceedings. The court set out three exceptions to this position. The scope of the direct purchaser rule arose again before the Supreme Court in Docket No. 17-204, Apple Inc v Pepper , 13 May 2019 (purchasers of apps for iPhones through Apple’s App Store were direct purchasers from Apple).
41 Such rules are not pre-empted by federal law, California v ARC Corp, 490 US 93 (1989).
42 In practice it is incredibly complex to determine who ultimately bore the cost of an overcharge and whether the cost has been shifted from direct to indirect purchasers, see e.g. P. Caro De Sousa, ‘EU and National Approaches to Passing On and Causation in Competition Damages Cases: A Doctrine in Search of Balance’ (2018) 55 CMLRev 1751. In addition, from the defendant’s perspective, they preclude a multiplicity of claims and the risks of duplicate recovery from arising, but see n. 41 and text. But contrast the position now adopted in Dir. 2014/104/EU, nn. 169–174 and text
43 An important issue which has arisen is whether claimants that have suffered loss in consequence of a cartel operated worldwide or internationally can pursue a US class action in respect of cartelised products purchased from the companies but delivered outside the US, that is encompassing claimants whose case does not arise from the US effect of the anti-competitive conduct. In F. Hoffmann-La Roche Ltd v Empagran SA, 542 US 155 (2004) the Supreme Court held they may not do so in respect of injuries flowing exclusively from foreign effects of allegedly anti-competitive global conduct, where the foreign effects are independent of, and not intertwined with, the US effects, see further Chap. 16.
44 W. Landes and R. Posner, ‘The Private Enforcement of Law’ (1975) 4 J of Legal Studies 1.
46 The Antitrust Criminal Penalty Enhancement and Reform Act 2004.
47 See e.g. Bell Atlantic Corp v Twombly, 550 US 554, 557 (2007) and F. H. Easterbrook, ‘Discovery as Abuse’ (1989) 69 Boston Univ LR 635.
49 See e.g. ibid.; Brunswick Corp v Pueblo Bowl-O-Mat, Inc, 429 US 477 (1977); Monstanto Co v Spray-Rite Service Corp, 465 US 752 (1984); Matsushita Electric Industrial Co v Zenith Radio Corp, 475 US 574 (1986); Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993); Verizon Communications Inc v Law Offices of Curtis V. Trinko LLP, 540 US 398 (2004); Bell Atlantic Corp v Twombly 550 US 554, 557 (2007); Leegin Creative Leather Products Inc v PSKS, Inc, 551 US 877 (2007).
50 A FRCP 12(b)(6) motion results in the dismissal of claims that do not allege the facts necessary to sustain a cause of action. It requires ‘a short and plain statement of the claim showing that the pleader is entitled to relief’, FRCP 8(a)(2).
51 FRCP 56(c).
52 W. Kolasky, ‘Different Roads’ (2008) 11 Global Competition Review 17, 17.
53 Matsushita Electric v Zenith Radio Corp, 475 US 574, 594 (1986); Monsanto Co v Spray-Rite Service Corp, 465 US 752, 762–764 (1984).
56 See R. H. Lande and J. P. Davis, ‘Benefits from Private Antitrust Enforcement: An Analysis of Forty Cases’ (2008) 42 Univ San Francisco LR 879, and J. P. Davis and R. H. Lande, ‘Toward an Empirical and Theoretical Assessment of Private Antitrust Enforcement (2013) 36 Seattle Univ LR 1269.
57 J. P. Davis and R. H. Lande, ‘Defying Conventional Wisdom: The Case For Private Enforcement’ (2013) 48 Georgia LR 1.
58 They found that recovery levels were much higher in cases involving direct purchasers and that only 11 of the cases involved indirect purchasers.
59 R. H. Lande and J. P. Davis, ‘Comparative Deterrence from Private Enforcement and Criminal Enforcements of the US Antitrust Laws’ (2011) Brigham Young Univ LR 315, but see G. J. Werden, S. D. Hammond, and B. A. Bartlett, ‘Deterrence and Detection of Cartels: Using All The Tools and Sanctions’ (2011) 56 Ant Bull 207 and R. H. Lande and J. P. Davis, ‘The Extraordinary Deterrence of Private Antitrust Enforcement: A Reply to Werden, Hammond and Barnett’ (2013) 58 Ant Bull 173.
60 Which are now affirmed in Reg. 1/2003 on the implementation of the rules on competition laid down in [Arts. 101 and 102 TFEU] (Reg. 1/2003)  OJ L1/1 (providing that national courts must have the power to apply Arts. 101 and 102 and for cooperation between the national courts and the Commission and consistency in interpretation of the provisions by all decision-takers).
61 Until 2004 it was difficult for national courts to play a meaningful part in the enforcement of Art. 101 because Reg. 17 of 1962 [1959–1962] OJ Sp. Ed. 87, conferred the exclusive right on the Commission to rule on the compatibility of an individual agreement with Art. 101(3), see Chaps. 2 and 4.
62 Case 127/73, EU:C:1974:25, para. 16 (‘As the prohibitions of Articles [101(1) and 102] tend by their very nature to produce direct effects in relations between individuals, these articles create direct rights in respect of the individuals concerned with the national courts must safeguard’).
63 See also now Reg. 1/2003, Art. 3(1).
64 See Case 14/68, Walt Wilhelm v Bundeskartellamt EU:C:1969:4, para. 9.
65  OJ L1/1.
66 Case 33/76, Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland EU:C:1976:188.
67 See Case 14/83, Von Colson and Kamann v Land Nordrhein-Westfalen EU:C:1984:153, especially para. 23 and Case 33/76, Rewe-Zentralfinanz, ibid., para. 5.
68 Case 34/67, Lück v Hauptzollamt Köln EU:C:1968:24.
69 See Case C-271/91, Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) (No. 2) EU:C:1993:335.
70 See e.g. Case 199/82, Amministrazione delle Finanze dello Stato v San Giorgio SpA EU:C:1983:318 (the applicant’s right to restitution is a ‘consequence of and an adjunct to’ the rights conferred on that individual by EU law).
71 See Cases C-6 and 9/90, EU:C:1991:428.
72 See e.g. Case C-242/95, GT-Link A/S v De Danske Statsbaner (DSB) EU:C:1997:376.
73 Case 158/80, Rewe-Handelsgesellschaft Nord mbH v Hauptzollamt Kiel EU:C:1981:163.
74 See e.g. Case 234/89, Delimitis v Henninger Bräu EU:C:1991:91, para. 53.
75  OJ C101.
76 Reg. 1/2003, Art. 15(3) (NCAs are also entitled to submit written observations to the national courts of their Member State and oral observations with permission).
77 These observations are available at <http://ec.europa.eu/competition/court/antitrust_amicus_curiae.html>. See e.g. Case C-429/07, Inspecteur van de Belastingdienst v X BV EU:C:2009:359 (the CJ upheld the Commission’s ability to intercede under Art. 15(3) in national proceedings where the outcome of the dispute was capable of impairing the effectiveness of the penalty it had imposed).
78 Art. 15(2).
79 See the National Court Cases Database, <http://ec.europa.eu/competition/elojade/antitrust/nationalcourts/>.
80 See e.g. Case C-344/98, Masterfoods v HB Ice Cream Ltd EU:C:2000:689 and Case 234/89, Delimitis v Henninger Bräu EU:C:1991:91.
81 See also Cooperation Notice, n. 75, paras. 11–13. For a narrow interpretation of the duty of sincere cooperation, see Inntrepreneur Pub Co v Crehan  UKHL 38 (see also e.g. J. Temple Lang, ‘Inntrepreneur and the Duties of National Courts under Article 10 EC’  Comp Law 23) where the UK’s House of Lords (now Supreme Court) took the final steps in a case which commenced in 1993 and led to 13 years of litigation through the English and EU courts. Although the case led, before the CJ, to clarification of an EU right to damages in competition cases, the outcome of the case before the English courts eventually turned upon the question of whether an English court was bound to adopt the same approach to the question of how Art. 101(1) applied to a beer tie agreement concluded by a UK brewer and a publican as that which had been adopted by the Commission in similar cases, but involving different parties (in e.g. COMP/35.079, Whitbread  OJ L88/26, aff’d Case T-13/99, Shaw v Commission EU:T:2002:209, COMP/36.081, Bass  OJ L186/1, and COMP/35.992, Scottish and Newcastle  OJ L186/28, the Commission held that similar agreements concluded by other UK brewers foreclosed the UK market for the distribution of beer in on-licensed premises and violated Art. 101(1)). At first instance, Park J ( EWHC 1510 (Ch)) departing from the approach adopted by the Commission (and UK competition authorities) held that the beer tie agreements did not infringe Art. 101(1). Although the Court of Appeal ( EWCA Civ 637) held, noting that the judge should have given greater deference to previous Commission decisional practice, that the lease incorporating the beer tie did infringe Art. 101(1), the House of Lords held that the duty of sincere cooperation did not require the English court to accept the factual basis of a decision reached by an EU institution when considering an issue arising between different parties in respect of a different subject matter.
83 See e.g. Case 234/89, Delimitis v Henninger Bräu EU:C:1991:91, paras. 43–55. See AAH Pharmaceuticals Ltd and Others v Pfizer Ltd and UniChem Ltd  EWHC 565 (Ch).
84 Case 314/85, Foto-Frost v Hauptzollamt Lübeck-Ost EU:C:1987:452, paras. 12–20.
85 Ibid., para. 12.
86 Case C-344/98, Masterfoods v HB Ice Cream Ltd EU:C:2000:689, para. 58.
87 A plea that an agreement infringed Art. 101 and was void caused acute difficulties in the cases that arose prior to 2004 under the old Reg. 17 system on account of the national courts’ inability to apply Art. 101(3) to individual cases, see Case 234/89, Delimitis v Henninger Bräu EU:C:1991:91.
88 Case 56/65, Société La Technique Minière v Maschinenbau Ulm GmbH EU:C:1966:38, 250.
90 See Cases C-295–298/04, EU:C:2006:461, para. 57.
91 See e.g. the English case of Passmore v Morland plc  3 All ER 1005.
92 This means that the enforceability of a contract will vary depending on which Member State’s rules are applicable and will not necessarily be uniform throughout the EU.
95 Case 319/82, Société de Vente de Ciments et Bétons de l’Est SA v Kerpen & Kerpen GmbH & Co KG EU:C:1983:374.
96 Courage v Crehan  EWCA Civ 637. See also, e.g., the view of the Swedish Supreme Court in Boliden Mineral AB v Birka, OCL 057 (SE 2004) and C. Cauffman, ‘The Impact of Voidness from Infringement of Article 101 TFEU on Related Contracts’ (2012) 8 European Competition Journal 95.
98 See, e.g., the view of the High Court of England and Wales in English Welsh & Scottish Railway Ltd v E.ON UK plc  EWHC 599 (Comm) (contractual provision and contract (if exclusionary term not severable) offending Art. 102 is illegal and void), the Swedish Court of Appeal, Scandinavian Airlines System (SAS) v Swedish Board of Aviation (unreported), U. Bernitz, ‘The Arlanda Terminal 2 Case: Substantial Damages Awarded on the Basis of Article 82 TEC’  1 Comp Law 195, and R. Whish, ‘The Enforcement of EC Competition Law in the Domestic Courts of the Member States’ in J. Lonbay (ed.), Frontiers of Competition Law (Wiley, 1994), Chap. 5. In many cases an agreement concluded by a dominant undertaking which incorporates a contractual clause infringing Art. 102 is likely also to infringe Art. 101(1).
99 See e.g. Gibbs Mew plc v Gemmell  1 EGLR 43.
100 Case 213/89, EU:C:1990:257.
101 An individual suffering in consequence of a breach of the competition rules might request an injunction, final or interim (pending resolution of the final dispute), to prevent the undertaking or undertakings committing a breach of the rules in future. The availability of an interim injunction will be of particular importance to an undertaking which believes that it is being driven out of the market by, e.g., exclusionary conduct infringing Art. 102.
103 They therefore claimed the difference between the contract price of the beer and its market value and other consequential loss, see e.g. Gibbs Mew plc v Gemmell  EuLR 588 and Trent Taverns v Sykes  EuLR 492.
104 In many cases the restitutionary claims were eventually abandoned, see e.g. A. Jones, Restitution and EC Law (LLP, 2000), Chap. 6 and A. Jones and B. Sufrin, EC Competition Law: Text, Cases, and Materials (Oxford University Press, 2001), Chap. 15, 991–1002.
105 See Inntrepreneur Estates (CPC) plc v Milne, unreported, 30 July 1993, Matthew Brown plc v Campbell  EuLR 530.
106 ‘No court will lend its aid to a man who founds his action upon an immoral or illegal act.’
107 ‘Where both parties are equally wrongful the position of the defendant is stronger’, Holman v Johnson (1775) 1 Cowp 341, 343. The rule is a principle not of justice but of policy which discourages all contracts that are contrary to public policy. ‘For an agreement to be illegal it need not be in breach of the criminal law’, Gibbs Mew plc v Gemmell  1 EGLR 43, 49,  EuLR 588.
108 Courage Ltd v Crehan  EuLR 834.
109 Referring to the US Supreme Court’s opinion in Perma Life Mufflers Inc v International Parts Corp, 392 US 134 (1968) (the illegality defence did not bar an action brought by a party to an anti-competitive agreement that was in an economically weaker position and not equally at fault (in pari delicto)—private suits important to antitrust enforcement and furthering the public policy in favour of competition).
110 On the right to claim damages for a violation of the EEA agreement competition law provisions, see Case E-6/17, Fjarskipti hf v Síminn hf 18 May 2018.
111 N. Dunne, ‘Antitrust and the Making of European Tort Law’ (2015) 36 OJLS 1, 3.
113 Although the Court did not specifically deal with Art. 102 it referred to the need to compensate those who have suffered loss caused to them by a contract or by conduct liable to restrict or distort competition.
114 Case C-453/99, EU:C:2001:465, para. 26.
115 Ibid., para. 27.
116 Ibid., para. 31. In these circumstances the principle of EU law that a litigant should not profit from his own unlawful conduct would be respected, Case 39/72, Commission v Italy EU:C:1973:13, para. 10. On remission of the case to the English court, this factor led Park J and the Court of Appeal to hold that the tenant’s claim could not be barred by the principle of illegality or significant responsibility, but see discussion of the case in n. 81 and text.
117 Cases C-295–298/04, EU:C:2006:461, para. 60.
118 Ibid., para. 61. In English law a claimant has to establish that the breach caused the loss complained of, i.e. that the damage would not have occurred but for the breach.
119 Ibid., paras. 83–100. In the UK, contrast Devenish Nutrition Ltd v Sanofi Aventis SA  EWHC 2394 (Ch) (exemplary damages not available where the Commission has imposed a fine in relation to the same offence), aff’d  EWCA Civ 10 with Case 1178/5/7/11, 2 Travel Group plc (in liquidation) v Cardiff City Transport Services Ltd  CAT 19 (exemplary damages awarded). See also Case 1166/5/10, Albion Water Ltd v Dwr Cymru Cyfyngedig  CAT 6.
121 The Commission recognises in its Notice on cooperation with the national courts the particular difficulties that may arise in consequence of the fact that there is no harmonisation of procedures in the Member States, see the Cooperation Notice, n. 75, paras. 9–10.
122 Case C-557/12, EU:C:2014:1317. See also e.g. F. Maier-Rigaud, ‘Umbrella Effects and the Ubiquity of Damage Resulting from Competition Law Violations’ (2014) 5 JECLAP 247.
123 Case C-557/12, EU:C:2014:1317, para. 34.
124  OJ L351/1 (its predecessor, Reg. 44/2001  OJ L12/1 applies only to proceedings instituted prior to 10 January 2015). A number of EU and national judgments deal with the question of its interpretation, see e.g. Case C-27/17, AB ‘flyLAL-Lithuanian Airlines’ v ‘Starptautiskā lidosta “Rīga” ’ VAS, ‘Air Baltic Corporation’ AS EU:C:2018:533, Case C-618/15, Concurrence Sàrl v Samsung Electronics France SAS and Amazon Services Europe Sàrl EU:C:2016:976, Case C-352/13, Cartel Damage Claims v Akzo Nobel NV EU:C:2015:335, Provimi v Aventis  EWHC 961 (Comm), and Cooper Tire & Rubber v Shell Chemicals  EWHC 2609 (Comm),  EWCA Civ 864. The Lugano Convention (signed by the EU, Iceland, Norway, Denmark, and Switzerland) contains rules based on the Brussels Reg.
125 See obstacles identified by the Commission in its Green Paper, n. 11 and n. 157 and text. As many national cases settle it is not easy to draw a picture of how national courts are resolving these issues, K Coates, ‘Cartels and Follow On Damages Actions’, Competition Law Lecture Series, Lincoln’s Inn, 24 November 2014 (‘That highlights one of the problems we have to deal with: although there are a number of points of law that will inevitably require clarification, there are a lot of judgment calls being made in the shadows’).
126 For example, in Case C-453/99, Courage Ltd v Crehan EU:C:2001:465, para. 31, the CJ held that although the illegality of the agreement cannot operate as a general bar to claims brought between parties to a contract concluded in breach of Art. 101(1), it can do so where the claimant co-contractor can be said to bear ‘significant responsibility’ for the breach, see n. 116 and text. See also Case C-295-298/04, Manfredi EU:C:2006:461.
127 Cases C-295–298/04, EU:C:2006:461.
128 Case C-536/11, Bundeswettbewerbsbehörde v Donau Chemie EU:C:2013:366, para. 32.
129 P. Nebbia, ‘Damages Actions for the Infringement of EC Competition Law: Compensation or Deterrence?’ (2008) 33 ELRev 23, 28.
130 K. Roach and M. J. Trebilcock, ‘Private Enforcement of Competition Laws’ (1996) 34 Osgoode Hall LJ 461, 496.
132 Wils, n. 1, 12–13, also supports as a ‘separate-tasks approach’, relying on the 2008 White Paper on Damages, n. 10. In its 2005 Green Paper, n. 11, 2.7, however, the Commission stated that damages actions and public enforcement serve the same deterrence objective.
133 See also Jones and Beard, n. 39, 253–255 and Opinion of Wahl AG in Case C-724/17, Skanska Industrial Solutions EU:C:2019:100 (emphasising the importance of deterrence and stating that ‘the rationale of a right to claim compensation for harm caused by an infringement of EU competition law was in Kone firmly tied to deterrence’, para. 44).
135 For a discussion of the position in the Member States on many of these issues, see B. Rodger (ed.), Competition Law: Comparative Private Enforcement and Collective Redress Across the EU (Wolters Kluwer, 2014), especially Chap. 2. For the view that individuals in Lithuania are less litigious because, historically, the clutches of the Soviet Union precluded the Lithuanian legal system from development, see J. Malinauskaite, ‘Private Enforcement of Competition Law in Lithuania: A Story of Underdevelopment’ (2013) 3 Global Competition LR 123, 133.
136 Only 0.4% of the 1,268 antitrust judgments decided between 1999–2012 identified in Rodger, n. 135, 162 were aggregated/class consumer cases. Class actions may not only facilitate relief for certain victims but may produce external benefits for society as a whole, W. B. Rubenstein, ‘Why Enable Litigation? A Positive Externalities Theory of the Small Claims Class Action’, Public Law and Legal Theory Research Paper Series, UCLA School of Law, No. 06-10, <http://www.ssrn.com/abstract=890303>.
137 See e.g. J. Peysner, ‘Costs and Financing in Private Third Party Competition Damages Actions’ (2006) 3 Competition Law Review 97.
138 Disclosure is recognised in the UK but does not exist in many civil law systems. National courts may ask the Commission to transmit to them information in its possession or its opinion on questions concerning the application of the EU competition law rules, see Reg. 1/2003, Art. 15(1).
140 See Reg. 1049/2001 regarding public access to European Parliament, Council and Commission documents (Transparency Reg.)  OJ L145/43, Case T-2/03, Verein für Konsumenteninformation EU:T:2005:125, Case T-437/08, CDC Hydrogen Peroxide v Commission EU:T:2011:752, and Ombudsman Decision 3699/2006/ELB, 2010.
141 Case C-360/09, Pfleiderer AG v Bundeskartellamt EU:C:2011:782, Mazák AG, paras. 38–42. In his view an interference with the injured parties’ right to an effective remedy and a fair trial was justified by the legitimate aim of ensuring the effective enforcement of Art. 101 by NCAs and ultimately private litigants’ possibility of obtaining an effective remedy.
142 Case C-360/09, Pfleiderer EU:C:2011:389, para. 31.
143 Ibid., para. 30.
144 Case C-536/11, EU:C:2013:366.
145 Case C-536/11, Bundeswettbewerbsbehörde v Donau Chemie EU:C:2013:366, para. 31.
146 Case C-365/12 P, Commission v EnBW Energie Baden-Württemberg AG EU:C:2014:112.
148 COM/2005/0672/final, 1.2.
152 See e.g. W. Wils, ‘Should Private Antitrust Enforcement be Encouraged?’ (2003) 26 World Competition 473 (but see now Wils, n. 1, 3), F. Jacobs, ‘Civil Enforcement of EEC Antitrust Law’ (1984) 82 Mich LR 1364, Dunne, n. 111 and S. Peyer, ‘Private Antitrust Litigation in Germany from 2005 to 2007: Empirical Evidence’ (2012) 8 J of Competition Law and Economics 331.
153 Although final judgments are relatively low, these do not take account of the numerous cases that are settled, see e.g. speech by Coates, n. 125 (‘Many of these cases settle. I was talking to an economist a few months ago who had advised on—he thought approximately—50 damages calculations. Not one of the cases went to final judgment’).
157 COM(2008) 165 final, SEC(2008)404, and SEC(2008)405, available at <http://ec.europa.eu/competition/antitrust/actionsdamages/documents.html>.
158 SEC(2008)404, paras. 2, 12, and 16.
159 COM(2008) 165 final.
161 Speech J. Almunia, ‘Looking back at five years of competition enforcement in the EU’, Global Antitrust Enforcement Symposium, Washington DC, 10 September 2014.
163 A first Directive proposed by the Commission in 2009 was based on Art. 103 TFEU and would have excluded the Parliament from the legislative procedure. In the end, the Directive was adopted under Arts. 103 and 114, so requiring use of the co-decision procedure.
164 In some Member States, e.g. Germany, there has been resistance to the introduction of disclosure rules on the basis that litigation proceeds on the basis that it is for the claimant to prove its case, see A. Howard, ‘Too Little, Too Late? The European Commission’s Legislative Proposals on Anti-trust Damages Actions’ (2013) 4 JECLAP 455, 460. The author is suspicious that the extent of compromises in the Directive and the rather timid selection of the procedural issues is linked to political concerns regarding the sanctity of national procedural autonomy, ibid. 464.
166 A choice may have to be made as to whether false positives or negatives are worse. For the view that the new regime is not likely to encourage new claims, see S. Peyer, ‘Compensation and the Damages Directive’ (2016) 12(1) European Competition Journal 87.
167 See e.g. W. E. Kovacic, Private Participation in the Enforcement of Public Competition Laws (15 May 2003), <https://www.ftc.gov/public-statements/2003/05/private-participation-enforcement-public-competition-laws>.
169 Dir. 2014/104/EU, Art. 3(2). The basis is tortious—to ensure that the compensation puts the person who suffered harm in the position that it would have been had the infringement of competition law not been committed, ibid.
170 Ibid., Art. 17(2), pushing the burden onto the defendant to rebut the presumption by providing evidence to establish there was in fact no overcharge. See also Art. 17(3) (NCAs shall on request assist national courts with respect to the determination of quantum of damages). Some NCAs are now going out of their way to provide evidence of effects and quantum of harm in their cartel decisions and, consequently, to facilitate private enforcement, see B. Veronese, ‘European Public and Private Antitrust Enforcement: It Takes Two to Tango’ (2014) 5 JECLAP 563.
171 Ibid., Art. 17(1). The Directive also incorporates provisions on consensual dispute resolution. Economics is consequently bound to play an ever increasing role in private enforcement cases, Veronese, n. 170, and E. Clark and R. Sanders, ‘Navigating the Quantum Minefield in Cartel Damages Cases’ (2015) 6 JECLAP 153.
172 SWD(2013) 205, n. 15. See also, e.g., an external study prepared for the Commission, Oxera, ‘Quantifying antitrust damages. Towards non-binding guidance for courts. Study prepared for the European Commission’ (Publications Office of the European Union, 2010); and Commission, ‘Draft Guidance Paper—Quantifying Harm in Actions for Damages based on Breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union (June 2011), <http://ec.europa.eu/competition/consultations/2011_actions_damages/draft_guidance_paper_en.pdf>.
175 It also provides for disclosure from third parties and competition agencies.
176 See e.g. the approach of Roth J in the English High Court in National Grid Electricity Transmission Plc v ABB Ltd  EWHC 869 (Ch).
177 In both Case C-360/09, Pfleiderer EU:C:2011:389, paras. 23–24 and Case C-536/11, Donau Chemie EU:C:2013:366, paras. 25–27 the CJ recognised that national courts could only apply, subject to EU law and particularly the principle of effectiveness, their national rules on the right of access to documents, if no binding regulation under EU law on the subject applied. For the position under the Transparency Reg. see Chap. 13.
178 Dir. 2014/104/EU, Art. 6(6).
180 Although, of course, these may be formidable obstacles to overcome.
181 Dir. 2014/104/EU, Art. 9 (NCA decisions did not previously have any binding effect in a majority of States). The Commission’s original proposal that decisions of NCAs were to constitute full proof before civil courts that an infringement occurred provoked considerable debate and was not adopted in the final Directive, see n. 82 (although such decisions may be presented before the national courts of another Member State as at least prima facie evidence of a competition law infringement).
182 Ibid., Art. 2.
183 Ibid., Art. 10 (this means in practice that proceedings may commence many years after an infringement has ended).
184 Ibid., Art. 11.
185 Ibid., Art. 19.
186 Ibid., Arts. 18 and 19. Art. 18(3) provides that a competition authority may consider compensation paid as a consensual settlement prior to its decision imposing a fine to be a mitigating factor.
189 Howard, n. 164, 456 (‘At first glance, the proposed Directive appears to be a random selection of minimum procedural requirements that lack coherence or structure. This is not a blueprint set of procedural rules that govern damages actions from start to finish’). Although the Directive is based on both Arts. 103 and 114 TFEU, n. 163 (to ensure that the differences in the liability regimes applicable in the Member States do not negatively affect both competition and the proper functioning of the internal market), arguably it simply provides a guarantee that a minimum set of rules will govern actions across the EU rather than providing a set of harmonised rules.
190 Case C-724/17, Vantaan kaupunki v Skanska Industrial Solutions Oy EU:C:2019:204 (preliminary ruling from the Korkein oikeus (Supreme Court, Finland)) confirming that the concept of undertaking includes the principle of economic continuity and consequently that where all the shares in companies which participated in the cartel were subsequently acquired by other companies, which dissolved the former companies and continued their commercial acitivies, those acquiring companies may be held liable (noting that although national law determines which entity is jointly and severally liable for harm caused (Dir. 2014/104/EU, Art. 11(1)), this applies not to the definition of entities liable but to the attribution of liability between those entities). See also Chap. 4, B. J. Rodger, M. Sousa Ferro, and F. Marcos, ‘A Comparative View of the Implementation of the EU Antitrust Damages Directive in Sixteen Member States’, Working Paper IE Law School AJ8-243-I (2018) and C. Koenig, ‘Comparing Parent Company Liability in EU and US Competition Law’ (2018) 41 World Competition 69.
192 The Commission had considered including an opt-out class procedure in the Damages Dir. but it became apparent that this proposal would be unlikely to be accepted by the Parliament, see e.g. Dunne, n. 111, G. Barling, ‘Collective Redress for Breach of Competition Law—A Case for Reform?’  Comp Law 5, A. Andreangeli, Private Enforcement of Antitrust: Regulating Corporate Behaviour through Collective Claims in the EU and the US (Edward Elgar, 2014), and M. Ioannidou, Consumer Involvement in Private EU Competition Law Enforcement (Oxford University Press, 2016).
193 See Lande, n. 6, 6 (recovery in the EU will also be severely limited if lawyers are not allowed to receive contingency fees; ‘the vast majority of consumer-victims and small business-victims’ may therefore ‘continue to be uncompensated’).
194 E.g., although Dir. 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights  OJ L157/70 provides effective means of enforcement of intellectual property rights, principally through private litigation and requires Member States to ensure minimum procedural standards, evidence indicates that the concepts within the Directive have been subject to different interpretation at the national level, see Dunne, n. 111, 11.
197 E.g., the UK Government introduced changes to competition legislation in 2015 designed to facilitate private litigation, see the Consumer Rights Act 2015.
198 See Sousa, n. 42 (noting that national courts have treated passing-on as falling within the scope of national doctrine regarding the calculation of damages—a natural consequence of damages being a type of tort law damages that remain a matter of national competence—and considering whether such approaches are compatible with the Directive).
201 See e.g. Rodger, Sousa Ferro, and Marcos, n. 190 (noting that most rapporteurs were unclear about the extent to which implementation of the Directive would make a radical difference to private enforcement practice in their States).
203 See e.g., Peyer nn. 166 and 200 and text. Howard, n. 164, 456 (‘At first glance, the proposed Directive appears to be a random selection of minimum procedural requirements that lack coherence or structure. This is not a blueprint set of procedural rules that govern damages actions from start to finish’). Although the Directive is based on both Arts. 103 and 114 TFEU, n. 163 (to ensure that the differences in the liability regimes applicable in the Member States do not negatively affect both competition and the proper functioning of the internal market), arguably it simply provides a guarantee that a minimum set of rules will govern actions across the EU rather than providing a set of harmonised rules.