Two Concerns Regarding the European Draft Directive On Antitrust Damage Actions

Jeroen Kortmann, Rein Wesseling, Aug 12, 2013

On June 11, 2013, the European Commission published its proposal for a directive on antitrust damage actions in the European Union (the “Draft Directive”). The Draft Directive contains far-reaching proposals to facilitate antitrust damage actions in the EU Member States.

Perhaps unsurprisingly, the initial reactions by the Member States have been lukewarm. On July 12, 2013, the newswire Mlex reported that the Netherlands “voiced the most direct criticism, with Denmark also sounding a note of skepticism.” While no Member State has yet taken a formal position, it is to be expected that some will-again-raise questions as to the necessity of European legislative measures. In their joint response to the Commission’s White Paper on antitrust damage actions in 2009, the German government and Bundeskartellamt already concluded that they could not “discern any convincing reasons for special private law and civil procedural rules for enforcing antitrust law.” Indeed, even the European Parliament’s own Economic and Monetary Affairs Committee openly doubted that private-law law enforcement mechanisms were underdeveloped in the Member States and went on to question “the Commission’s competence for its proposals.” Unfortunately, the Commission does not appear to have made a real effort to address the concerns voiced in 2009.

In this contribution we would like to draw specific attention to two concerns. First, we question whether the current legal framework is really ineffective in facilitating antitrust damage actions. And, second, we look at the effects that the Draft Directive is likely to have on the ability and willingness of the parties involved in antitrust damage litigation to settle their disputes amicably.

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