Private damages actions under EU competition policy : an exploration of the ongoing sea change in respect of such actions concerning articles 101 and 102 TFEU infringements

Abstract

The EU has an established history of public enforcement concerning antitrust infringements under what are now Articles 101 and 102 of the Treaty of the Functioning of the European Union (TFEU). Yet, until recently, this has not been true in respect of private compensatory damages actions in relation to the said Articles. Hence, these actions are now seen as reinforcing the existing deterrent provided by pubic enforcement fines. This paper focuses upon the ongoing sea change that aims to enable and encourage compensatory damages claims in relation to harm caused by breaches of 101 and 102 TFEU. It reveals that both the Court of Justice of the European Union (CJEU) and the European Commission have played pioneering roles in advancing this sea change. It further asserts that, although the rulings of the CJEU have created a hybrid architecture that makes possible private actions in relation to the said breaches under Member state procedural laws before national courts, the architecture itself is problematic as it fails to guarantee that Member states’ procedural rules have a high degree of uniformity, thereby failing to guarantee a regulatory level playing field across the Union concerning the said damages actions. Moreover, not only is the architecture problematic, but it needed further development in respect of rules and requirements in several key areas, such as the right of evidential disclosure, the limitation period issue, collective redress and the quantification of harm, so as to facilitate and encourage claims. The Commission was aware of these concerns, and this paper explores its response. The issues could have been addressed by the establishment of a set of EU procedural rules which national courts would apply in the said actions but the Commission decided upon a different way forward. Working with the said hybrid architecture, and through the vehicle of the 2014 Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, the Commission has amended and created rules and requirements which will form part of member states’ domestic procedural law - and therefore will be applied by national courts – in order to establish a more level regulatory playing field across the Union which should facilitate and encourage private compensatory damages actions for harm caused by EU antitrust breaches. Of course, a more level playing field means that differences will still remain. Moreover, it will be some time before the success of the Directive can be gauged, and further measures may be required in the future