A panacea for competition law damages actions in the EU? A comparative view of the implementation of the EU Antitrust Damages Directive in sixteen Member States
| Author | Francisco Marcos,Barry J Rodger,Miguel Sousa Ferro |
| Published date | 01 August 2019 |
| Date | 01 August 2019 |
| DOI | http://doi.org/10.1177/1023263X19861032 |
| Subject Matter | Articles |
Article
A panacea for competition
law damages actions
in the EU? A comparative
view of the implementation
of the EU Antitrust Damages
Directive in sixteen
Member States
Barry J Rodger*, Miguel Sousa Ferro** and Francisco Marcos***
Abstract
This article makes an original contribution to the literature on the developing area of private
enforcement of EU competition law. It delivers a significant, rigorous and comprehensive
analysis of the transposition across a broad selection of Member States (MS) of a major EU
Directive introduced with the aim of harmonizing and facilitating competition law damages
actions across the EU. It looks at the implementation of the Directive 2014/104/EU in sixteen
MS. It analyses the solutions followed by each of those MS in addressing the various issues
raised by the Directive (liability and compensation, joint liability, statute of limitations,
quantification of harm, passing-on defence and indirect purchasers claims, access to evidence
and collective redress).
Keywords
EU competition law, damages, litigation, private enforcement
* Strathclyde University Law School, Glasgow, UK
** University of Lisbon Law School, Lisbon, Portugal
*** IE Law School, Spain
Corresponding author:
Barry J Rodger, Strathclyde University Law School, Lord Hope Building, 41 St James Road, Glasgow, UK.
E-mail: barry.j.rodger@strath.ac.uk
Maastricht Journal of European and
Comparative Law
2019, Vol. 26(4) 480–504
ªThe Author(s) 2019
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DOI: 10.1177/1023263X19861032
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1. Introduction
Directive 2014/104/EU (‘the Antitrust Damages Directive’, or ‘the Directive’) is the latest step in
the promotion and facilitation of private enforcement of competition law.
1
It is binding as to the
result to be achieved, but it imposes only a minimum degree of protection and allows MS signif-
icant discretion in its transposition. In this article we look at how it has been implemented in
sixteen different MS.
2
This article, which summarizes the results of a broader research project,
3
analyses the approach
adopted in each MS to the transposition of the various provisions of the Antitrust Damages
Directive, focussing especially o n potentially incomplete or inaccurate tra nsposition, national
measures beyond the requirements of the Directive and the motivations behind them, and incon-
sistencies between MS which may jeopardize the uniformity of the application of EU Competition
Law, absent harmonization by the Court of Justice of the European Union (CJEU). The following
sections discuss how the MS have addressed the key issues and controversies arising in the context
of the transposition of the Damages Directive.
2. Who is liable and under which conditions?
As the Directive purposely chose not to explicitly address the substantive grounds and conditions
for liability, it was left to the MS to specify what these may be, within the limits imposed by
Articles 101 and 102 TFEU, together with the general principles of EU Law (such as the principle
of effectiveness) and in accordance with a systemic and teleological interpretation of the Directive
itself.
The most obvious legal controversy, at this level, which the Directive, unfortunately, chose not
to address, concerns the liability of the parent company. It is settled that, in the public enforcement
of EU antitrust rules, parent companies may be liable for the behaviour of their subsidiaries over
which they (solely or jointly) exercise decisive influence, even if they were unaware of the antitrust
infringing behaviour, and that this influence may be presumed if they (directly or indirectly) own
all or nearly all the share capital of that subsidiary.
4
However, this question has not been settled in
1. Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing
actions for damages under national law of infringements of the competition law provisions of the Member States and of
the European Union, [2014] OJ L 349/1. All articles and recitals mentioned in this paper are those of the Directive unless
otherwise stated.
2. Because of the prevalence of private enforcement practice and significance of the Directive measures for competition
litigation in certain States, all of the ‘States with Considerable Private Enforcement Experience’ within the EU are
examined (Belgium, France, Germany, Italy, Spain, The Netherlands and the UK). Four additional countries with
developing private enforcement experience are also included (Greece, Ireland, Portugal and Sweden). In addition, we
included countries from the May 2004 Accession States (Hungary, Poland and Lithuania). Finally, we selected two
countries from ‘States with Limited Private Enforcement Experience’: Cyprus and Luxembourg.
3. For the purposes of this article, key issues in MS’ transposition have not been covered, in particular in relation to the
substantive and temporal scope of the transposition measures, and fuller detail of the project and outcomes are set out in
B.J. Rodger, M.S. Ferro and F. Marcos The EU Antitrust Damages Directive: Transposition in the Member States (1st
edition, Oxford University Press, Oxford University Press, 2018).
4. See B. Cortese, ‘Piercing the Corporate Veil in EU Competition Law: The Parent Subsidiary Relationship and
Antitrust Liability’, in B. Cortese (ed.), EU Competition Law. Between Public and Private Enforcement (Kluwer,
2014), p. 73-93; C. Koenig, ‘Comparing Parent Company Liability in EU and US Competition Law’, 41 World
Competition (2018), p. 69.
Rodger et al. 481
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