The Green Paper on Damages Actions for Breach Of The EC Antitrust Rules and Beyond: Reflections on the Utility and Feasibility of Stimulating Private Enforcement Through Legislative Action

Abstract

The article seeks to demonstrate that legislative action to facilitate the enforcement of damages claims in European competition law is both possible and desirable. A stimulation of stand alone actions concerning hard-core infringements is however considered unrealistic; only follow-on actions, which have a limited enforcement value, can be encouraged by legislative measures. In contrast, damages actions concerning grey-area offences can and should be facilitated. These infringements tend to be exclusionary in nature so that the private interest in pursuing a case will often outweigh the public interest. The focus on damages actions is however too narrow. Relevant EC legislation should also establish and define the core elements of injunctive relief. For both damages and injunctive relief, the main hurdle is the legal (and economic) complexity of these cases and the resultant difficulty in proving the illegality of the conduct. This is where legislative action could be useful. While this complexity cannot be changed as such, it is possible to somewhat reduce the risk connected with unpredictability. Legislative action should therefore also deal with the other elements of these remedies, in particular causation, contributory negligence, protective scope and the issue of passing on and indirect purchasers’ claims.

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