Fault in EU Law Based Competition Restriction Damages Cases

Abstract

This article discusses fault as a (possible) condition for awarding damages in the context of claims for compensation relating to infringing EU competition law. Private damages cases are heard by the national courts, which must find the relevant legal norms amongst a floating mass of EU law and national law. It is submitted that current EU law, that is, mainly case-law, does not in principle prevent applying national law that sets a requirement of fault or of proving fault – intention or negligence – by the infringer. What the detailed content of the applicable combination of EU law and national law is and what constitutes relevant EU law that should be taken into account by the national courts are, however, more intricate questions.

Keywords: EU competition law; Private enforcement; Damages claims; Directive on competition infringement damages claims; Fault; Negligence; Excusable infringement; Ignorance of facts; Ignorance of law; National courts; Applicable law; Issues of applicable law unaffected by the future Directive