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

See all articles by Frank P. Maier-Rigaud

Frank P. Maier-Rigaud

IESEG School of Management (LEM-CNRS), Department of Economics and Quantitative Methods; ABC economics

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

Maier-Rigaud, Frank P. and Maier-Rigaud, Frank P., Toward a European Directive on Damages Actions (July 22, 2013). Maier-Rigaud, Frank (2014) Toward a European Directive on Damages Actions, Journal of Competition Law and Economics, 10(2), 341-360., Available at SSRN: https://ssrn.com/abstract=2296843 or http://dx.doi.org/10.2139/ssrn.2296843

Frank P. Maier-Rigaud (Contact Author)

ABC economics ( email )

Berlin, 10115
Germany
10115 (Fax)

HOME PAGE: http://www.ABCecon.com

IESEG School of Management (LEM-CNRS), Department of Economics and Quantitative Methods ( email )

Socle de la Grande Arche
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Paris, La Défense Cedex, 92044
France

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