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Alberto Martinazzi, Mario Todino, Nov 29, 2008
In this paper, the authors argue that following MyTravel, the prospects for success of damages actions based on the Commission’s noncontractual liability in merger cases are very remote. It seems unlikely that the Commission may, in the future, commit completely unjustifiable errors of substantive assessment resulting in a “grave and manifest disregard of the limits of its discretion” and thus capable of triggering a “serious breach of a law conferring rights to individuals” within the meaning of art. 288 of the EC Treaty; all the more so in view of the progress which has been made in recent years in the understanding of the economic theories underlying merger control analysis and following the introduction of a number of additional “checks-and-balances” in the Commission’s internal decision-making process. What scope remains then for damages actions brought against the Commission in merger control cases?