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Contents
- Preliminary Material
- Main Text
- 1 Introduction
- 2 Background and Rationale of Damages Claims
- 2.1 Introduction
- 2.2 The development of the debate on damages claims in Europe
- 2.3 The path towards the adoption of the Directive and the further judicial developments
- 2.4 Conclusion: an interpretative tool
- 3 The Directive on Actions for Damages for Infringements of Competition Law
- 4 The Legal Hurdle of Causation: Variations on a Theme
- Preliminary Material
- 4.1 Introduction
- 4.2 A primer on causation in law
- 4.2.1 Distinguishing the factual from the normative element: causation in fact and causation in law (or scope of liability)
- 4.2.2 The emergence of different theories of causation in fact
- 4.2.3 Alternatives to causation in fact
- 4.3 Ensuring the effectiveness of the damages remedy in EU competition law: Towards EU causation rules?
- 4.66
- 4.3.1 A coat of many colours: a comparative analysis of causation rules in the European Union
- 4.3.2 The implementation of causation tests in competition cases: an insurmountable hurdle for certain categories of claimants?
- 4.3.3 Towards EU rules on causation?
- 5 The Interaction of the Legal Concept of Causation with the Economic Concept of Causation
- 5.1 The specificities of the legal concept of causation and risks of conflict with non-legal concepts of causation
- 5.2 Causality: a perspective from economics
- 5.2.1 Evidence, facts, and beliefs
- 5.2.2 On the quality of evidence about causality
- 5.2.3 Identification of causal effects in principle—economic analysis
- 5.2.4 Regression analysis and identification
- 5.2.5 Spurious trends and Granger causality
- 5.2.6 Statistical significance and finding causality
- 5.2.7 Difficult cases
- 5.3 Conclusion
- 6 Evaluating Damages: A Primer
- 6.1 Introduction
- 6.2 Cartel cases
- 6.02
- 6.03
- 6.04
- 6.05
- 6.2.1 The baseline cartel overcharge calculation
- 6.2.2 Estimates of cartel overcharges
- 6.2.3 Estimating cartel damage
- 6.2.4 Cost-plus or financial analysis methods
- 6.2.5 Building simulation models
- 6.2.6 Beyond the basics: cartel damage theory
- 6.2.7 Beyond the basics: potential abuses of econometric evidence
- 6.2.8 Beyond the basics: overcharge and pass-through rates are related
- 6.2.9 Beyond the basics: facts matter for the economics of damages
- 6.2.10 Remaining practical issues: interest rates and discounting
- 6.3 The relationship between cartel damages and damages from exploitative abuses
- 6.4 Damages from exclusionary practices
- 6.141
- 6.4.1 Introduction
- 6.4.2 Lost profits calculation: the counterfactual and a helpful simplification
- 6.4.3 The timing of damages and benefits
- 6.4.4 Measuring damages from foreclosure: an example from economic theory
- 6.4.5 Measuring damages from foreclosure: comparative methods
- 6.4.6 Case example: Cardiff Bus
- 6.171
- 6.4.6.1 Background to the case
- 6.4.6.2 The damages claimed by 2 Travel
- 6.4.6.3 Cardiff Bus’ perspective and the importance of the counterfactual
- 6.4.6.4 The CAT’s approach to causality
- 6.4.6.5 The CAT’s conclusions on the evidence from the period prior to the infringement and the counterfactual
- 6.4.6.6 The CAT’s conclusions on lost profits
- 6.4.6.7 The CAT’s deliberation of the appropriate rate of interest
- 6.5 Conclusion
- 7 The Interaction between Public Enforcement and Private Actions for Damages in Europe
- 7.1 Introduction to the general framework
- 7.1.1 The function of public and private enforcement of competition law: complements or substitutes?
- 7.1.2 The dual level of enforcement in Europe
- 7.1.3 The intersection between administrative and judicial authorities and the principle of effectiveness of EU competition law enforcement
- 7.1.4 The principle of procedural autonomy
- 7.1.5 Public and private enforcement remedies and the principle of proportionality
- 7.1.6 The function of sanctions and remedies in public and private enforcement
- 7.1.7 Public and private remedies and the need for ‘equalization’
- 7.1.8 Structure of this chapter
- 7.2 Public versus private enforcement of competition law
- 7.2.1 Optimal enforcement theory and the interaction between public and private enforcement
- 7.2.2 A positive law perspective on the interaction between public and private enforcement of EU competition law
- 7.3 The symbiotic relation between public and private enforcement: specific issues
- 7.108
- 7.3.1 Access to the public enforcement file in the context of private enforcement
- 7.109
- 7.110
- 7.3.1.1 The right of the defendant to access the public enforcement file
- 7.3.1.2 The right of third parties involved in the proceedings to access the public enforcement file
- 7.3.1.3 The right of third parties not involved in the proceedings to access the public enforcement file
- 7.3.1.4 The Damages Directive
- 7.3.2 Interaction between leniency and actions for damages
- 7.133
- 7.3.2.1 The disclosure of leniency documents in the context of actions for damages
- 7.3.2.2 Regulation 1/2003 and access to leniency documents
- 7.3.2.3 The Commission’s Leniency Notice and access to leniency documents
- 7.3.2.4 Cartel settlements and access to leniency documents
- 7.3.2.5 The foreign forum route
- 7.3.2.6 The route of the Transparency Regulation
- 7.3.2.7 The route of EU competition law
- 7.3.2.8 The Damages Directive
- 7.3.3 Arrangements with regard to joint and several liability of infringing undertakings
- 7.3.4 Evidential value of the finding of violation in public enforcement proceedings
- 7.3.5 Public enforcement and punitive damages
- 7.3.6 Better coordination between private actions for damages and public enforcement of competition law
- 7.3.7 Better coordination between private actions for damages and private settlements/alternative dispute resolution (ADR)
- 7.4 Conclusion
- 7.1 Introduction to the general framework
- 8 Cross-Border Damages Actions in the EU: Managing Inter-Jurisdictional Competition in the EU Mixed Enforcement System
- 8.1 The governance of cross-border EU competition law enforcement: the choice between harmonization and transnational judicial governance
- 8.2 Allocating adjudicative jurisdiction in cross-border EU competition law cases
- 8.27
- 8.2.1 Promoting inter-jurisdictional competition: the Brussels regime
- 8.28
- 8.2.1.1 General rules of jurisdiction: Article 4(1) of the Brussels Regulation recast
- 8.2.1.2 Special rules of jurisdiction
- 8.2.1.3 Jurisdiction agreements or forum selection clauses
- 8.2.1.4 Arbitration agreements
- 8.2.1.5 Concluding remarks
- 8.3 Limits to inter-jurisdictional competition: regulating parallel EU competition law proceedings in Europe
- 8.97
- 8.98
- 8.3.1 Regulating public parallel competition law proceedings: Regulation 1/2003
- 8.3.2 Regulating private parallel competition law proceedings
- 8.3.3 Management rules for cross-border proceedings between a civil court and an NCA
- 8.3.4 A competition law damages-related actions rule: damages actions by claimants at different levels in the supply chain
- 8.3.5 Balancing jurisdictional competition and the need to avoid parallel EU proceedings
- 8.4 Applicable law
- 8.130
- 8.4.1 The operation of choice-of-law rules
- 8.4.1.1 The distinction between matters of substance and procedure
- 8.4.1.2 The scope of the Rome II Regulation
- 8.4.2 The application of the Rome II Regulation special choice-of-law rules for claims arising out of a restriction of competition
- 8.5 Enforcement and recognition of judgments
- 8.6 Conclusion
- Further Material