EU's Private Damages Directive: sufficiently framed to achieve its underlying aims and objectives?
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Date
04/07/2018Item status
Restricted AccessEmbargo end date
31/12/2100Author
Stirling, Grant
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Abstract
This thesis seeks to address the question: to what extent is the EU Directive on Antitrust Damages
Actions sufficiently framed in its terms to achieve its underlying aims and objectives? It is argued that
the Directive has one overriding goal: to make it easier for the victims of infringements of EU
competition law – typically end-consumers – to claim compensation from the infringers. It is also
argued that the authors of the Directive present a convincing case that one of the main reasons for the
lack of victims claiming – let alone being awarded – compensation, prior to the adoption of the Directive,
is weaknesses with the existing legal framework governing competition law damages actions at national
level.
The thesis examines four of the main areas covered by the Directive: disclosure of evidence; the effect
of NCA decisions; limitation periods; and indirect purchaser standing and the passing-on defence. In
each case, the relevant rules from the Directive are set out and an assessment is carried out. A crucial
part of this assessment consists of seeking to ascertain the problems facing potential claimants prior to
the adoption of the Directive and asking whether the Directive appears well-framed in terms of
addressing those problems. As well as considering case law of the EU courts, the legal rules and
jurisprudence of two leading Member States – the United Kingdom and Italy – are used as primary case
studies in carrying out this assessment.
The assessment of the measures considered in this thesis is a nuanced one. It is argued that the measures
set out in Chapter II of the Directive on disclosure of evidence are generally well-framed and beneficial
for claimants, crucially showing a keen understanding of the relationship between private and public
enforcement. The assessment of Article 9, on the effect of NCA decisions is much less positive. It is
argued that the measures are drafted in vague terms and compare unfavourably with existing rules and
practices in the two case-study Member States. It is argued that while the measures set out in Article 10
on limitation periods do represent an improvement for claimants in certain respects, there are a number
of key issues that they fail to address. Finally, the assessment of Articles 12 to 15 on indirect purchaser
standing and the passing-on defence is positive in some respects, but it is argued that many of the
measures do not adequately address the issues that they purport to tackle. It is also argued that these
measures are unlikely to bear fruit, without certain issues which are not covered by the Directive, being
addressed.
Ultimately it is concluded that the Directive makes some important strides towards the realisation of its
underlying aims and objectives, but that many of the measures examined are found to be too vague, too
weak or too incomplete to fully address the key issues and that the Directive also fails to address some
important issues at all.