White Paper on Damages Actions for Breach of the EC Antitrust Rules: The Binding Effect of Decisions Adopted by Competition Authorities

Abstract

On April 2, 2008 the European Commission published the White Paper on 'Damages actions for breach of the EC antitrust rules proposing to the member-states the adoption of concrete measures as regards a number of issues pertaining to the satisfaction of relevant claims, such as standing, access to evidence, proof of infringement, fault, definition of damages etc. Most notably, however, the Commission included in its list of proposals the rule that an infringement finding by an NCA decision constitutes irrebuttable proof of that infringement. Consequently, it fulfills the requirement of illegality, pre-requisite for liability. Even more interestingly, this rule, about the binding effect of the NCA infringement finding, extends to all member-state national courts deciding subsequent ('follow-on') claims for civil damages of the victims of such infringement.

This article aims to define the scope of application of the proposed EU-wide binding effect rule as this is presented in the White Paper and to discuss some of the issues expected to arise following its adoption by national legislators (either on a voluntary basis or, most probably) following an eventual relevant provision in the forthcoming EC Draft Directive for Antitrust Damages.

Keywords: White Paper, Damages Directive, Binding Effect