Consumer Actions after the Adoption of the EU Directive on Damage Claims for Competition Law Infringements

AIDA - Anali italiani del diritto d'autore, della cultura e dello spettacolo 2015 (Luigi Ubertazzi ed.), Forthcoming

Max Planck Institute for Innovation & Competition Research Paper No. 15-10

35 Pages Posted: 18 Nov 2015

See all articles by Josef Drexl

Josef Drexl

Max Planck Institute for Innovation and Competition; Ludwig Maximilian University of Munich (LMU)

Date Written: November 12, 2015

Abstract

In line with primary EU competition law, the new Damages Directive 2014/104/EU aims to provide all victims of competition law violations with a right to compensation. This includes consumers who often suffer harm at the very end of the supply chain. This article analyses the impact of this Directive on consumer redress. Thereby, it identifies a tension built into the Directive between the public interest in enhancing the respect of competition law, on the one hand, and the private interest in compensating the victims of anti-competitive conduct, on the other hand. By concentrating the right to claim damages on the — direct or indirect — purchaser who ultimately had to pay the overcharge, the Directive runs the risk that infringers of competition law will escape private enforcement actions in cases where this overcharge was passed down to final consumers who, especially in mass damage cases, will not have sufficient incentives to bring individual damage claims to the courts. This problem is aggravated by the fact that the Damages Directive itself does not provide for any collective redress mechanisms. Rather, in 2013, the Commission decided to address that issue only through adopting the non-binding Collective Redress Recommendation. Thereby, the Commission recommends avoiding all the features that make up the so-called ‘toxic cocktail’ of US class actions. Yet past experience and most recent reforms in some Member States seem to indicate that pure systems of opt-in collective redress mechanisms will not significantly contribute to private enforcement of competition law. Indeed, for the time being, experimenting with different national systems is the best approach to identifying the best system of collective redress for competition law cases.

Keywords: EU law, consumer law, competition law, damages, cartels, collective redress, leniency, passing-on defence

Suggested Citation

Drexl, Josef, Consumer Actions after the Adoption of the EU Directive on Damage Claims for Competition Law Infringements (November 12, 2015). AIDA - Anali italiani del diritto d'autore, della cultura e dello spettacolo 2015 (Luigi Ubertazzi ed.), Forthcoming; Max Planck Institute for Innovation & Competition Research Paper No. 15-10. Available at SSRN: https://ssrn.com/abstract=2689521

Josef Drexl (Contact Author)

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

HOME PAGE: http://www.ip.mpg.de

Ludwig Maximilian University of Munich (LMU)

Munich, 80539
Germany

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