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Oxford Law Citator
Contents
Expand All
Collapse All
Preliminary Material
Preface
Project Background
Research Objectives
Methodology
Hypothesis and Outcomes
Book Layout
Table of Contents
Table of Cases
European Cases
CJEU Cases (in number order)
Commission Decisions
EFTA Court
National Cases
Austria
Belgium
Cyprus
France
Germany
Greece
Hungary
Ireland
Italy
Lithuania
Netherlands
Poland
Portugal
Spain
Sweden
United Kingdom
United States
Table of Legislation
EU Legislation
Treaties and Conventions
Directives (in number order)
Regulations (in number order)
Recommendations and other non-binding instruments
National Legislation
Belgium
Cyprus
France
Germany
Greece
Hungary
Ireland
Italy
Lithuania
Luxembourg
Netherlands
Poland
Portugal
Spain
Sweden
United Kingdom
United States
International Conventions
List of Contributors
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
1.1 Introduction to EU competition law
1.2 Public enforcement of EU competition law
1.2.1 Background
1.2.2 The former regime under Regulation 17
1.2.3 Enforcement post-Regulation 1/2003
1.2.4 The role of the Court of Justice
1.3 EU law private enforcement developments
1.3.1 The ECJ
1.3.2 European Commission
1.4 The experience of damages actions in the EU
1.5 Collective redress
1.6 US antitrust private enforcement and experience
1.7 EU private international law rules
1.7.1 Jurisdiction in competition law claims
1.7.2 The applicable law in competition law claims
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
5.1 Shortcomings and neglected issues
5.2 Limited treatment
5.3 Inherent biases
5.4 Uniform EU playing field?
6 The Implementation of the Directive
7 Conclusions
Part II The Member State Reports on Transposition of the Directive
3 Belgium
1 Transposition Background and Process
2 Scope of the Transposition Measure
2.1 Substantive scope
2.2 Temporal scope
3 Key Issues
3.1 Terminological differences between the Directive and its transposition
3.1.1 Use of different concepts
3.1.2 Changes to the content of certain definitions
3.2 Access to documents
3.2.1 General rules on access to documents
3.2.2 Access to confidential information
3.2.3 Documents in the file of a competition authority
3.2.4 Sanctions
3.2.5 Territorial scope
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
1.1 Cypriot competition regime
1.2 Competition litigation
1.3 Transposition 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
1.1 Overview of the French private enforcement context
1.2 Transposition process
2 Scope of the Transposition Measure
2.1 Substantive scope
2.2 Temporal scope
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
3.14.1 Effect of consensual settlements on subsequent actions for damages
3.14.2 Suspensive effect of consensual dispute resolution
3.14.3 Effect of consensual settlements on fines
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
1.1 Overview of the Greek private enforcement context
1.2 Transposition background
1.3 Transposition process
2 Scope of the Transposition Measure
2.1 Substantive scope
2.2 Temporal scope
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
2.1 Substantive scope
2.2 Temporal scope
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
2.1 Substantive scope
2.2 Temporal scope
3 Key Issues
3.1 Right to full compensation
3.2 Disclosure of evidence
3.3 Effect of NCA decisions
3.4 Limitation period
3.5 Joint and several liability
3.6 Passing on
3.7 Quantification
3.8 Consensual dispute resolution
3.9 Incorrect or incomplete transposition
3.9.1 Limitation period
3.9.2 Passing on of overcharges
3.9.3 Power of courts to estimate amount of overcharge
3.9.4 Disclosure
4 Concluding Remarks
10 Italy
1 Transposition Background and Process
1.1 Italian legislative and jurisprudential context
1.2 Transposition process and ‘location’ question
2 Scope of the Transposition Measure
2.1 Substantive scope
2.2 Temporal scope
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
1.1 Overview of the Directive and assessment of its impact on the Lithuanian legal system
1.2 The consultation process
1.3 Impact assessment
2 Scope of the Transposition Measure
2.1 Substantive scope
2.2 Temporal scope
3 Key Issues
3.1 The right to full compensation
3.2 Access to evidence and disclosure of evidence
3.2.1 Overview
3.2.2 Access to the file of the Competition Council
3.2.3 Confidential information
3.2.4 Penalties
3.3 Effect of national decisions and limitation periods
3.3.1 Limitation period
3.3.2 Exclusive competence of Vilnius County Court
3.3.3 Effect of national decisions
3.4 Joint and several liability
3.5 Passing-on of overcharges
3.6 Quantification of harm
3.7 Consensual dispute resolution
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
2.1 Substantive scope
2.2 Temporal scope
3 Key issues
3.1 Not specifically transposed provisions
3.1.1 Rules apply even without specific transposition
3.1.2 General rules are more lenient than required by the Directive
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
13 The Netherlands
1 Transposition Background and Process
1.1 The Dutch private enforcement context
1.2 The Dutch transposition process: general observations
1.3 The transposition of Directive 2014/104/EU into Dutch law
1.4 General approach: no ‘translation of the untranslatable’
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
1 Transposition Background and Process
1.1 The main stages of the implementation process
1.2 Persons/authorities involved in the implementation process
1.3 The main criticism of the implementation process
1.4 The main objectives of the implementation and its possible impact on Polish law and the economy
1.5 The method of implementation
2 Scope of the Transposition Measure
2.1 Substantive scope
2.2 Temporal scope
3 Key Issues
3.1 Novel aspects
3.1.1 Disclosure of evidence
3.1.2 Time-barring deadlines
3.1.3 Standing of business and consumer organizations to bring actions
3.1.4 Group actions
3.2 Incorrect transposition: effect of NCAs’ decisions
3.3 Incomplete transposition: passing-on of overcharges
3.4 Problematic issues
3.4.1 Presumption of harm
3.4.2 Competent courts
3.4.3 Definition of ‘leniency programme’
3.4.4 Definition of ‘settlement submission’
4 Concluding Remarks
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
3.7.1 Evidentiary value of final decisions by national competition authorities
3.7.2 Quantification of harm
3.7.3 Access to sources of evidence
3.7.3.1 Access to sources of evidence regarding an infringement of competition law
3.7.3.2 Access to evidence included in the file of a Spanish competition authority
3.8 Collective claims and consumer redress
4 Concluding Remarks
17 Sweden
1 Transposition Background and Process
1.1 New legislation on antitrust damages
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
3.5.1 Passing-on defence
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
3.9.1 Staying of proceedings
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
1.1 Overview of the UK private enforcement context
1.2 Transposition process
2 Scope of the Transposition Measure
2.1 Substantive scope
2.2 Temporal scope
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
Part III Comparative Analysis of the Transposition Processes and Outcomes
19 Transposition Context, Processes, Measures, and Scope
1 Introduction
2 Member States’ Competition Litigation Context
3 Implementation Timescale
4 Responsible Authorities and Stakeholders’ Level of Debate
5 Transposition Measure Type
6 Scope of the Transposition Measures: Substantive and Temporal
6.1 Substantive scope
6.2 Temporal scope
6.2.1 General approach
6.2.2 Specific national provision
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
4.1 General issues
4.2 Changing judicial culture and legal instincts
4.3 Various procedural issues
4.4 Protection of confidentiality and limits to use of evidence
4.5 Sanctions
4.6 Requesting documents from competition authorities
5 Specialized Courts
6 Limitation Periods
7 Binding Force of Public Enforcement Decisions
8 Compensation, Quantification, Passing-on, and Presumptions
8.1 Compensation
8.2 Damages, quantification, and presumptions
8.3 Indirect damages and passing-on
9 Consensual Dispute Resolution: Settlements and ADR
10 Collective Redress
11 Other Issues
21 Concluding Remarks
Further Material
Index
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Table of Cases
Edited By: Barry Rodger, Miguel Sousa Ferro, Francisco Marcos
From:
The EU Antitrust Damages Directive: Transposition in the Member States
Edited By: Barry Rodger, Miguel Sousa Ferro, Francisco Marcos
Content type:
Book content
Product:
Oxford Competition Law [OCL]
Published in print:
26 December 2018
ISBN:
9780198812760
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3.237.205.144