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Veljko Milutinovic, Jan 21, 2015
The subject of this paper is the recently enacted Directive of the European Parliament and of the Council 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 Directive is aimed at enhancing private enforcement of European Union and national competition law and, in particular, effective and just compensation for victims of infringements. It is submitted that, while striving for just compensation and, in particular, just compensation for so-called “follow-on claimants” (claimants that base their claim on an existing public enforcement decision), the EU Institutions and, especially, the European Commission, as the proponent, have made significant sacrifices regarding:
- the relationship between public and private enforcement (in particular the so-called “system of parallel competences”);
- exclusive EU competence;
- legal diversity within the EU; and
- deterrence of anticompetitive conduct.
This paper will not analyze the Directive as a whole; that task will be performed in a much larger, more comprehensive work, while many of the “old” issues in the Directive have already been treated extensively in an existing work, both by the present author. Instead, this paper will focus on the key postulates of this legal instrument; the extent and the justification of the four sacrifices listed above will be examined in view of making a broad assessment of the likely overall impact of the Directive.
