Toward a European Directive on Damages Actions
Maier-Rigaud, Frank (2014) Toward a European Directive on Damages Actions, Journal of Competition Law and Economics, 10(2), 341-360.
19 Pages Posted: 23 Jul 2013 Last revised: 16 Jul 2015
Date Written: July 22, 2013
Abstract
This paper critically reviews the European Commission’s proposed Directive on future rules concerning actions for damages for competition law infringements under national law. It is argued that the proposal underestimates the importance of loss of profits induced by increased prices and does little in ensuring that such effects will receive an equal treatment to price effects in damages claims. The paper suggests that the importance of such effects could have been emphasized by introducing a rebuttable presumption on lucrum cessans based on pass-on considerations – paralleling the presumption on overcharge. Furthermore, the decision to leave questions of causality to national tort laws is criticized as a harmonized regulation of claims based on the merits of the evidence presented would have been a superior tool, in line with a more economic approach and better suited for achieving the goal of compensation for any victim due to its intrinsic flexibility. Finally the notion that legally relevant damage only accrue within a vertical value chain is challenged.
Keywords: quantification of damages, pass-on, passing-on defence, overcharge, unjust enrichment, private enforcement, lucrum cessans, quantity effect, damnum emergens, price effect, burden of proof, standard of proof, tort law, compensation, presumption
JEL Classification: K21, K40, L40
Suggested Citation: Suggested Citation