The Binding Nature of NCA Decisions in Antitrust Follow-on Litigation: Is EU Antitrust Calling For Affirmative Action?

Stefano Grassani, Aug 12, 2013

The European Commission believes that-given the procedural asymmetries between plaintiffs and defendants-public enforcement of antitrust law by national competition authorities may have a significant impact on the actual possibility of claimants to successfully bring forward private lawsuits. Further, the absence of a clear probative value of NCAs’ decisions in such follow-on cases today is deemed to represent one of the obstacles to an effective system of antitrust damages actions at the Member States level.

As a remedy thereto, the current draft of Article 9 of Commission’s Proposal for a Directive on actions for damages (“Proposal”), if enacted in the European Union, would require Member States to:

“ensure that, where national courts rule, in actions for damages under Article 101 or 102 of the Treaty or under national competition law, on agreements, decisions or practices which are already the subject of a final infringement decision by a national competition authority or by a review court, [courts] cannot take decisions running counter to such finding of an infringement.”

I believe that this provision seriously undermines rights of defense in civil antitrust proceedings. Given the unique administrative model of enforcement implemented by most European jurisdictions, the above statutory rule risks jeopardizing due process and right to a fair trial in the context of the private enforcement stage; to wit, in a judicial setting where defendants usually face monetary consequences potentially more significant than the already increasingly high sanctions levied by antitrust agencies.

In this note I shall try to explain why.

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