The Proposal for a Directive on Antitrust Damages Actions: The European Commission Sets the Stage for Private Enforcement in the European Union

Daniele Calisti, Luke Haasbeek, Aug 12, 2013

On June 11, 2013, the Commission adopted a proposal for a Directive on Antitrust Damages Actions, as well as a Commission Communication and a Practical Guide on the quantification of antitrust harm. The private enforcement of EU competition law has its roots in 1974, when the ECJ held that the prohibitions laid down in Articles 101 and 102 of the Treaty have direct effect. In the landmark judgment from 2001 in Courage v. Crehan, the ECJ more specifically held that victims of infringements of EU competition law have an EU right to obtain full compensation for the harm they suffered. Subsequent ECJ case law has confirmed and elaborated this principle.

Despite the existence of the EU right to compensation, to date only very few victims of antitrust infringements have been able to obtain compensation. During the period 2006-2012, less than 25 percent of the Commission’s infringement decisions were followed by damages actions.Moreover, far from reaching all victims, the vast majority of these actions were brought by large businesses. From an internal market perspective, it is interesting to observe that cases are generally brought in very few Member States, and mostly in the United Kingdom, Germany, and the Netherlands, while no follow-on actions to Commission decisions whatsoever were reported in 20 out of 28 Member States.

Actions for damages following the Commission’s infringement decisions thus have led to a very low level …

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