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The EU Antitrust Damages Directive - Transposition in the Member States edited by Rodger, Barry; Sousa Ferro, Miguel; Marcos, Francisco
- Preliminary Material
- Main Text
- Part I EU Competition Law Private Enforcement and the Antitrust Damages Directive
- 1 Damages Actions in the Enforcement of EU Competition Law
- 1 Introduction
- 2 Conclusions
- 2 Promotion and Harmonization of Antitrust Damages Claims by Directive 2014/104/EU?
- 1 Introduction
- 2 The Path to the Adoption of the Directive
- 3 The Goals of the Directive
- 4 The Directive: Legal Grounds and Rules
- 4.1 Why a Directive?
- 4.2 Eroding and encroaching upon national remedial autonomy
- 4.3 Content of the Directive
- 4.3.1 Compensatory principle: harm caused by competition law infringements
- 4.3.2 Limitation periods
- 4.3.3 Quantification of harm
- 4.3.4 Multi-party responsibility
- 4.3.5 Damages spread along a distribution chain
- 4.3.6 Consensual dispute resolution
- 4.3.7 Disclosure of evidence
- 4.3.8 Protection of public enforcement
- 4.3.9 Binding effect of NCAs’ infringement decisions
- 5 Assessment of the Directive: Scope and Nature of Its Rules
- 6 The Implementation of the Directive
- 7 Conclusions
- 1 Damages Actions in the Enforcement of EU Competition Law
- Part II The Member State Reports on Transposition of the Directive
- 3 Belgium
- 1 Transposition Background and Process
- 2 Scope of the Transposition Measure
- 3 Key Issues
- 3.1 Terminological differences between the Directive and its transposition
- 3.2 Access to documents
- 3.3 Effect of decisions of competition authorities
- 3.4 Time-barring deadlines
- 3.5 Solidary liability
- 3.6 Passing-on of overcharges
- 3.7 Presumption and quantification of harm by cartels or other antitrust infringements
- 3.8 Consensual dispute resolution
- 3.9 Collective enforcement
- 3.10 Parent company liability
- 4 Concluding Remarks
- 4 Cyprus
- 1 Transposition Background and Process
- 2 Scope of the Transposition Measure
- 3 Key Issues
- 3.1 Definitions
- 3.2 Limitation periods
- 3.3 Binding force of decisions of other Member States
- 3.4 Parent company liability
- 3.5 Presumption and quantification of damage by cartels or other antitrust infringements
- 3.6 Distribution of liability between co-infringers
- 3.7 Access rules
- 3.8 Specific provisions on collective enforcement
- 3.9 Judicial system (jurisdiction for private enforcement actions)
- 3.10 Special guidance
- 4 Concluding Remarks
- 5 France
- 1 Transposition Background and Process
- 2 Scope of the Transposition Measure
- 3 Key Issues
- 3.1 Concept of undertaking
- 3.2 Binding effect of competition authorities’ decisions
- 3.3 Presumption of harm
- 3.4 Passing-on of overcharges
- 3.5 Types of harm and assessment of damages
- 3.6 Joint and several liability and recovery of contribution from co-infringers
- 3.7 Consensual dispute resolution
- 3.8 Time-barring deadlines
- 3.9 Access to evidence
- 3.10 Class actions
- 4 Concluding Remarks
- 6 Germany
- 1 Transposition Background and Process
- 2 Scope of the Transposition Measure
- 3 Key Issues
- 3.1 Definitions
- 3.2 Binding force of decisions of other Member States
- 3.3 Parent company liability for fines
- 3.4 Group liability for damages
- 3.5 Presumption of damages and quantification
- 3.6 Joint and several liability and recovery of contribution from co-infringers
- 3.7 Immunity recipients
- 3.8 Small and medium-sized enterprises
- 3.9 Disclosure of evidence
- 3.10 Limitation periods
- 3.11 Organisation of the judicial system
- 3.12 Publication of decisions imposing fines
- 3.13 Passing-on defence and indirect purchasers
- 3.14 Settlements
- 3.15 Personal liability of managers towards injured parties
- 3.16 Costs of third-party notices
- 4 Concluding Remarks
- 7 Greece
- 1 Transposition Background and Process
- 2 Scope of the Transposition Measure
- 3 Key Issues
- 3.1 Limitation periods
- 3.2 Binding force of decisions of other Member States
- 3.3 Joint and several liability
- 3.4 Parent company liability
- 3.5 Presumption of damage by cartels and quantification
- 3.6 Method for quantification of damages by national courts
- 3.7 Passing-on defence and indirect purchasers
- 3.8 Access rules
- 3.9 Specific provisions on collective enforcement
- 3.10 Organisation of the judicial system
- 3.11 Consensual dispute resolution
- 4 Concluding Remarks
- 8 Hungary
- 1 Transposition Background and Process
- 2 Scope of the Transposition Measure
- 3 Key Issues
- 3.1 Time-barring deadlines
- 3.2 Binding force of decisions of other Member States
- 3.3 Parent company liability
- 3.4 Presumption and quantification of damages by cartels or other antitrust infringements
- 3.5 Criteria for presumption of distribution of liability between co-infringers and right of return between co-infringers
- 3.6 Access rules
- 3.7 Specific provisions on collective enforcement
- 3.8 Organization of the judicial system
- 4 Concluding Remarks
- 9 Ireland
- 1 Transposition Background and Process
- 2 Scope of the Transposition Measure
- 3 Key Issues
- 4 Concluding Remarks
- 10 Italy
- 1 Transposition Background and Process
- 2 Scope of the Transposition Measure
- 3 Key Issues
- 3.1 Disclosure of evidence
- 3.2 Protection of evidence included in the file of a competition authority
- 3.3 Penalties
- 3.4 Binding force of NCA decisions and judicial review
- 3.5 Time limitation rule
- 3.6 Joint and several liability
- 3.7 Parental liability
- 3.8 Passing-on of overcharges
- 3.9 The use of AGCM expertise in quantifying damages
- 3.10 Consensual dispute resolution
- 3.11 Collective redress
- 3.12 Specialized courts
- 4 Concluding Remarks
- 11 Lithuania
- 1 Transposition Background and Process
- 2 Scope of the Transposition Measure
- 3 Key Issues
- 4 Concluding Remarks
- 12 Luxembourg
- 1 Transposition Background and Process
- 1.1 General overview of the transposition procedure
- 1.2 Overview of the main reflections made by the relevant bodies
- 1.2.1 The Proposal submitted by the Minister of Economic Affairs on authorisation of the Grand Duc
- 1.2.2 Advice of the Union Luxembourgeoise des Consommateurs
- 1.2.3 Advice of the Chambre de Commerce
- 1.2.4 Advice of the Conseil d’État
- 1.2.5 Advice of the Conseil de la concurrence
- 1.2.6 Advice of the Chambre des Métiers
- 1.2.7 Advice of the Association luxembourgeoise pour l’étude du droit de la concurrence
- 1.2.8 Additional advice
- 2 Scope of the Transposition Measure
- 3 Key issues
- 3.1 Not specifically transposed provisions
- 3.2 Protection of confidential information
- 3.3 Principle of joint and several liability
- 3.4 Probative value of decisions of NCAs of other Member States
- 3.5 Presumption and quantification of harm by cartels
- 3.6 Time-barring deadlines
- 3.7 Sanctions
- 3.8 Payment of costs
- 3.9 Actions for damages by claimants from different levels in the supply chain
- 3.10 Consensual dispute resolution
- 3.11 Parent company liability
- 3.12 No specific provisions on collective enforcement
- 4 Concluding Remarks
- 1 Transposition Background and Process
- 13 The Netherlands
- 1 Transposition Background and Process
- 2 Scope of the Transposition Measure
- 3 Key Issues
- 3.1 No exemption for Dutch farmers
- 3.2 Limitation periods
- 3.3 Effects of NCAs’ final infringement decisions
- 3.4 Disclosure and protection of documents
- 3.5 Evidentiary presumptions: damage and passing-on
- 3.6 Joint and several liability
- 3.7 Parental liability
- 3.8 Effect of consensual settlements on subsequent actions for damages
- 3.9 Prevention of contradictory judgments and overcompensation
- 3.10 Collective redress
- 3.11 No specialized court structure
- 4 Concluding Remarks
- 14 Poland
- 15 Portugal
- 1 Transposition Background and Process
- 2 Scope of the Transposition Measure
- 3 Key Issues
- 3.1 Pre-trial discovery
- 3.2 Partial centralization of private enforcement at the specialized Court
- 3.3 Access rules
- 3.4 Time-barring
- 3.5 Protecting failed settlement talks
- 3.6 Binding force of public enforcement decisions
- 3.7 Concept of undertaking and parent company liability
- 3.8 Presumption of proportion of responsibility for joint liability
- 3.9 Quantifying damages
- 3.10 Promoting the Portuguese opt-out regime (‘actio popularis’)
- 3.11 Centralizing information on private enforcement cases at the PCA
- 3.12 Legal privilege
- 3.13 Effect on trade between Member States
- 4 Concluding Remarks
- 16 Spain
- 1 Transposition Background and Process
- 2 Scope of the Transposition Measure
- 3 Key Issues
- 3.1 Jurisdiction: competent courts
- 3.2 Right to full compensation
- 3.3 Responsibility of infringers: joint and several/parental liability
- 3.4 Passing-on of the harm and indirect purchasers/suppliers’ claims
- 3.5 Limitation period
- 3.6 Alternative dispute resolution
- 3.7 Measures to facilitate claims
- 3.8 Collective claims and consumer redress
- 4 Concluding Remarks
- 17 Sweden
- 1 Transposition Background and Process
- 2 Scope of the Transposition Measure
- 3 Key Issues
- 3.1 Preconditions for liability in Swedish law
- 3.2 New rules on joint and several liability
- 3.3 New rules on limitation periods
- 3.4 Elements of the right to full compensation
- 3.5 New rules on interest in arrears on damages awarded
- 3.6 Quantification of harm
- 3.7 Passing-on of overcharges in Swedish law
- 3.8 The right to recover damages from other infringers
- 3.9 Procedural rules for cases involving antitrust damages
- 3.10 Rules on disclosure of evidence
- 3.11 Prohibition against presenting certain written evidence
- 3.12 Binding effect of national decisions
- 3.13 Incorrect or incomplete transposition
- 4 Concluding Remarks
- 18 United Kingdom
- 1 Transposition Background and Process
- 2 Scope of the Transposition Measure
- 3 Key Issues
- 3.1 Limitation periods
- 3.2 Binding force of competition authority decisions
- 3.3 Disclosure and protection of documents/admissability of evidence
- 3.4 The presumption of harm and quantification of damages
- 3.5 The passing-on defence and indirect purchasers
- 3.6 Joint and several liability
- 3.7 Parent company liability
- 3.8 Consensual dispute resolution
- 3.9 Collective redress
- 3.10 Litigation costs and funding
- 3.11 Specialised court structure
- 4 Concluding Remarks
- 3 Belgium
- Part III Comparative Analysis of the Transposition Processes and Outcomes
- 19 Transposition Context, Processes, Measures, and Scope
- 20 Transposition: Key Issues and Controversies
- 1 Introduction
- 2 Who Is Liable and under Which Conditions?
- 3 Joint Liability, Immunity Recipients, and SMEs
- 4 Access to Evidence
- 5 Specialized Courts
- 6 Limitation Periods
- 7 Binding Force of Public Enforcement Decisions
- 8 Compensation, Quantification, Passing-on, and Presumptions
- 9 Consensual Dispute Resolution: Settlements and ADR
- 10 Collective Redress
- 11 Other Issues
- 21 Concluding Remarks
- Part I EU Competition Law Private Enforcement and the Antitrust Damages Directive
- Further Material
