A Fleet Without a Captain? Taking Stock of European Antitrust Litigation Post EU Directive

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Hans Friederiszick, Michael Rauber, Jan 21, 2015

Private antitrust enforcement and cartel damages actions are on the rise, with a concentration of damages actions in the United Kingdom, Germany, and the Netherlands. To facilitate this development, the EU Directive on Antitrust Damages was adopted and signed into law in November 2014 and Member States will need to implement it in their legal systems by December 27, 2016. The EU Directive introduces a number of changes to achieve its main aims, which are effective compensation of victims of antitrust infringements and optimization of the interaction between public and private enforcement. It will lead to partial harmonization of national law,and thereby incentivize a broader, pan-European coverage of legal action.

The EU Directive, together with a recent judgment by the Court of Justice, substantially bolster the scope of civil redress by formally introducing the concepts of “passing-on” and “umbrella effects” at European level. We argue that while these are economically correct concepts, in line with the paradigm of effective compensation for every victim of antitrust infringements, in a context of a partially harmonized, multi-jurisdictional environment the complexity of litigation will increase significantly. Different national approaches to collective redress add further complexity.

From an economic point of view there is a single total dam…

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