Private Enforcement Under EU Law: Abuse of Dominance and the Quantification of Lucrum Cessans

Abstract

This article discusses two elements that the draft EU Directive on actions for damages treats only perfunctorily. The first concerns lucrum cessans or the quantity effect which is found to be of a relatively higher magnitude than the price effect. The second concerns the difficulties of establishing an appropriate counterfactual in the quantification of damage in the context of Article 102 TFEU cases.

Keywords: quantification of damage, damages actions, abuse of dominance, pass-on, passing-on defence, overcharge, private enforcement, lucrum cessans, quantity effect, volume effect, damnum emergens, price effect, compensation, presumption

JEL Classification: K21, K40, L40