After the Damages Directive

Name: After the Damages Directive | Policy and Practice in the EU Member States and the United Kingdom
Brand: Wolters Kluwer
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Policy and Practice in the EU Member States and the United Kingdom

Andrea Biondi Gabriella Muscolo Renato Nazzini(Herausgeber*in)

Wolters Kluwer (Verlag)

Erschienen am 11. Januar 2022

672 Seiten

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Inhalt

Intro
Half-Title Page
Title Page
Copyright Page
Editors
Contributors
Summary of Contents
Table of Contents
Foreword
Preface
Introduction
1 Subject Matter of the Book
2 Damages and the Effective Application of EU Law
3 The Direct Effect of Articles 101 and 102 and the Case Law of the Court of Justice
4 The Key Provisions of the Damages Directive
5 Aims and Method of The Book
Chapter 1 Austria
1 Introduction
2 Major Steps Towards the Transposition of the Damages Directive
3 Right to Full Compensation
4 Disclosure of Evidence
4.1 General Provision on Disclosure of Evidence
4.2 Disclosure and Use of Evidence Included in the Files
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
7.1 Quantification of Damages
7.2 Passing-On of Overcharges
8 Limitation Periods
9 Cooperation with NCAs
10 Consensual Dispute Resolution
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
12.1 Alignment of the Limitation Periods for Investigations
12.2 Whistleblower System
12.3 New Explicit Mitigating Factor
12.4 Class Actions/Group Litigation Mechanisms in Austria
13 Statistics on Private Enforcement Comparing the Scenarios Before and After the Adoption of the Damages Directive
14 Conclusion
Chapter 2 A Practitioner View
1 Introduction
2 Transposing the Damages Directive
2.1 Brief Overview of the Position Before the Implementation of the Damages Directive
2.2 Scope and Modality of the Transposition
2.3 Misalignments with the Damages Directive
2.4 Issues Emerged During the Transposition Process
3 Right to Full Compensation
4 Disclosure of Evidence
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with NCAs
10 Consensual Dispute Resolution
10.1 Suspensive and Other Effects (i.e., Mitigating Factor) of Consensual Dispute Resolution
10.2 Effect of Consensual Settlements on Subsequent Actions for Damages
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
13 Statistics on Private Enforcement Comparing the Scenarios Before and After the Adoption of the Damages Directive
14 Conclusion
Chapter 3 The Damages Directive in Belgium
1 Introduction
2 Transposing the Damages Directive: Definitions
3 Disclosure of Evidence
3.1 Amendments to the Competition Act
3.2 The Specific Provisions in Book XVII CEL on Damage Claim Procedures
3.3 Penalties
4 Effect of National and Foreign Decisions
5 Joint and Several Liability
6 Quantification of Harm and Passing-On Issues
7 Consensual Dispute Resolution
8 Limitation Periods
9 Cooperation with NCAs
10 Reforms Outside the Scope of the Damages Directive
11 Conclusion
Chapter 4 The Damages Directive in Bulgaria
1 Introduction
2 Transposing the Damages Directive
2.1 The Status Quo Before the Implementation of the Damages Directive
2.2 The Transposition of the Damages Directive
2.3 Absence of Regional Differences
3 Right to Full Compensation
4 Disclosure of Evidence
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with National Competition Authorities
10 Consensual Dispute Resolution
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
13 Statistics on Private Enforcement Comparing the Scenarios Before and After the Adoption of the Damages Directive
14 Conclusion
Chapter 5 The Damages Directive in Croatia
1 Introduction
2 Transposing the Damages Directive
3 Right to Full Compensation
4 Disclosure of Evidence
4.1 Disclosure of Evidence in Damages Proceedings
4.2 Protection of Confidential Information
4.3 Disclosure of Evidence Included in the File of a Competition Authority
4.4 Penalties
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
7.1 Quantification of Harm
7.2 Passing-On Issues
8 Limitation Periods
9 Cooperation with NCAs
10 Consensual Dispute Resolution
10.1 Suspensive and Other Effects of Consensual Dispute Resolution
10.2 Effect of Consensual Settlements on Subsequent Actions for Damages
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
13 Statistics on Private Enforcement Comparing the Scenarios Before and After the Adoption of the Damages Directive
14 Conclusion
Chapter 6 The Damages Directive in Cyprus
1 Introduction
2 Transposing the Damages Directive
3 Right to Full Compensation
3.1 Disclosure of Evidence (Including Evidence Included in the File of a Comp. Authority)
4 Effect of National and Foreign Decisions
5 Joint and Several Liability
6 Quantification of Harm and Passing-On Issues
7 Limitation Periods
8 Cooperation with National Competition Authorities
9 Consensual Dispute Resolution
9.1 Temporal Application
9.2 Reforms Outside the Scope of the Damages Directive
9.3 Statistics on Private Enforcement Comparing the Scenarios Before and After the Adoption of the Damages Directive
9.4 Conclusion
Sources
Chapter 7 The Damages Directive in Czech Republic
1 Introduction
2 Subject Matter and the Scope of the Act on Damages
3 Temporal Application of the Act on Damages
4 The Scope of Damages, Calculation, Presumption of Harm and Fault
5 Joint and Several Liability
6 Limitation Periods
7 Passing-On Defence and Passing-On Overcharges
8 Disclosure Procedure and Access to Documents
9 The Binding Effect of Judgments and the NCA's Decisions
10 Class and Representative Actions
11 Conclusion
Chapter 8 The Damages Directive in Denmark
1 Introduction
2 Transposing the Damages Directive
3 Right to Full Compensation
4 Disclosure of Evidence
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Consensual Dispute Resolution
10 Temporal Application
11 Reforms Outside the Scope of the Damages Directive
11.1 Implementation of the ECN Plus Directive
11.2 Group Litigation
12 Conclusion
Chapter 9 The Damages Directive in Estonia
1 Introduction
2 Transposing the Damages Directive
2.1 Brief Overview of the Regime Pre-existing the Implementation of the Damages Directive
2.2 Transposition of the Damages Directive
2.3 Specifics of Estonian Public Competition Enforcement and Its Impact on Private Competition Damages Claims
2.4 Implications of Act Implementing Damages Directive on Criminal Enforcement of Competition Law
3 Right to Full Compensation
4 Disclosure of Evidence
4.1 General Rules Governing the Disclosure of Evidence in Estonia
4.2 General Rules on the Disclosure of Evidence
4.3 Disclosure of Evidence in the Competition Authority File
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
7.1 Quantification of Harm
7.2 Passing-On Issues
8 Limitation Periods
8.1 General Civil Law Limitation Regime in Estonia
8.2 Transposition of the Damages Directive and the Special Antitrust Relative Limitation Period
8.3 Application of Statute of Limitation
8.4 Possible Implementation Questions
9 Cooperation with NCAs
10 Consensual Dispute Resolution
10.1 Suspensive and Other Effects (I.E., Mitigating Factor) of Consensual Dispute Resolution
10.2 Effect of Consensual Settlements on Subsequent Actions for Damages
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
13 Conclusion
Chapter 10 The Damages Directive in Finland
1 Introduction
2 Transposing the Damages Directive
2.1 The Position Before the Implementation of the Damages Directive
2.2 Scope and Modality of the Transposition
2.3 Misalignments with the Damages Directive
2.4 Issues Emerged During the Transposition Process
3 Right to Full Compensation
4 Disclosure of Evidence
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with NCAs
10 Consensual Dispute Resolution
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
13 Statistics on Private Enforcement
14 Conclusion
Chapter 11 France
1 Introduction
2 Transposing the Damages Directive
3 Right to Full Compensation
4 Disclosure of Evidence
5 Effects of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Consensual Dispute Resolution
10 Temporal Application
11 Reforms Outside the Scope of the Damages Directive
12 Conclusion
Chapter 12 A View from the Bench
1 Introduction
2 International and Domestic Jurisdiction
2.1 International Jurisdiction
2.2 Special Jurisdiction Rules: The Determination of the Place of the Harmful Event
2.3 Domestic Jurisdiction
3 Statutes of Limitation
4 Standing
5 Administration of Evidence
5.1 Accessing the Competition Authority's Files: State of Play Before the Damages Directive
5.2 Disclosure of Documents, Control of Proportionality
5.3 The Protection of Trade Secrets
6 Probative Value of EC and NCAs' Findings in the Assessment of Fault, Causation and the Existence of Harm
6.1 The Civil Fault: The Evolution of Judicial Courts in Parallel with the Directive and the Transposing Order of 2017, Before Their Coming into Force
6.2 Causality and the Existence of Harm: A Contrasted Approach of Judicial and Administrative Judges
6.3 Passing-On Defence Prior to 11 March 2017: No Presumption but the Strict Application of the General Rules of Civil Liability - the Burden of Proof for the Absence of Repercussion of Overcharges Lies on the Claimant
6.4 Conclusion
Chapter 13 An Economist View
1 Introduction
2 Causality
3 The Assessment of Damages by the French Courts
3.1 The Rise of Economic Methods to Assess Damages
3.1.1 Comparator-Based Methods
3.1.2 The Choice of a Comparator Scenario
3.1.3 Simple Versus Econometric Comparisons
3.1.4 Economic Modeling
4 Other Important Evaluation Issues
4.1 Passing-On
4.2 Capitalization
5 Expertise
6 Conclusion
Chapter 14 The Damages Directive in Germany
1 Introduction
2 Transposing the Damages Directive
3 Right to Full Compensation
4 Disclosure of Evidence (Including Evidence in the File of a Competition Authority)
5 Effect of National and Foreign Decisions
6 Joint and Several Liability / Parent Company Liability / Officers' Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with NCAs
10 Consensual Dispute Resolution
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
13 Statistics on Private Enforcement Comparing the Scenarios Before and After the Adoption of the Damages Directive
14 Conclusions
Chapter 15 An Economics Perspective
1 Introduction
2 Presumption Rules
3 Use of Economic Experts
4 Passing-On Defence
4.1 Past Practice on Passing-On
4.2 Recent FCJ Rulings on the Passing-On Defence
4.3 'Disclosure' for Passing-On
5 Conclusion
Chapter 16 The Damages Directive in Greece
1 Introduction
2 Transposing the Damages Directive
2.1 The Main Provisions and Principles of the GCC and the GCCP
2.2 The Transposition Process
3 Right to Full Compensation and Conditions
4 Disclosure of Evidence
4.1 Disclosure of Evidence under the GCCP: General Principles and Procedure
4.2 Disclosure of Evidence under the Damages Act: General Principles and Procedure
4.3 Disclosure of Evidence in the File of a Competition Authority
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Prescription
9 Cooperation with the Competition Authority
10 Consensual Dispute Resolution
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
13 Conclusion
Chapter 17 A View from the Bench
1 Private Enforcement in Greece: The State of Play
2 Liability
3 Calculation of Damages
4 What Now?
Chapter 18 The Damages Directive in Hungary
1 Introduction
2 Transposing the Damages Directive
3 Jurisdiction
4 Right to Full Compensation
5 Effect of National and Foreign Decisions
6 Disclosure of Evidence
7 Joint and Several Liability
8 Quantification of Harm and Passing-On Issues
9 Limitation Periods
10 Cooperation with the GVH
11 Consensual Dispute Resolution
12 Conclusion
Chapter 19 The Damages Directive in Ireland
1 Introduction
2 Transposing the Damages Directive
2.1 The Position Before the Implementation of the Damages Directive
2.2 Scope and Modality of the Transposition
2.3 Misalignments with the Damages Directive
2.4 Issues Emerged During the Transposition Process
3 Right to Full Compensation
4 Disclosure of Evidence
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with NCAs
10 Consensual Dispute Resolution
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
13 Statistics on Private Enforcement Comparing the Scenarios Before and After the Adoption of the Damages Directive
14 Conclusion
Chapter 20 Italy
1 Introduction
2 Transposing the Damages Directive
3 Right to Full Compensation
4 Disclosure of Evidence (Including Evidence Included in the File of a Comp. Authority)
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with NCAs
10 Consensual Dispute Resolution
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
13 Conclusion
Chapter 21 A Practitioner View on Private Antitrust Enforcement in Italy after the Damages Directive
1 Introduction
2 Brief Remarks on the Private Enforcement of EU Antitrust Law and the Impact of the Damages Directive
3 The Italian Case Law Following the Adoption of the Damages Directive
3.1 The 'Powers' of the Court to Manage the Procedure: The Cargest Case and the Subsequent Case Law
3.2 The Damages Actions Arising from the European Commission Decisions in the So-Called 'Trucks Case': Selected Issues
3.2.1 Some Peculiarities of the Case
3.2.2 The Attempts to Apply the 'Prior Technical Expertise' Procedure Pursuant to Article 696-bis ICCP
3.2.3 The Proposal for Conciliation Submitted by the Judge Pursuant to Article 185-bis ICCP
3.3 The Assignment of Claims and the Risks of Forum Shopping
4 The (Problematic) Binding Nature, for the Purposes of Antitrust Damages Claims, of the European Commission's and the NCAs' Decisions: Issues of Compatibility with Fundamental Constitutional Principles
5 The 'Silence' of the Damages Directive on Stand-Alone Actions and the Risk of Excessive Negative Consequences for Undertakings
6 Conclusive Remarks
Chapter 22 Economic Analysis in Private Enforcement
1 Introduction
2 Use of Court-Appointed Experts
3 Ascertaining Anticompetitive Agreements and Abuses of Dominance
3.1 Stand-Alone Actions
3.2 Follow-On Actions
3.3 Role of Stand-Alone Actions in the Aftermath of the Damages Directive
4 Quantification of Damages
4.1 The Analytical Framework
4.2 The Counterfactual Scenario and Damages Award in the Italian Case Law
4.2.1 Cartels and Exploitative Conduct
4.2.2 Boycott Agreements
4.2.3 Exclusionary Abuse of Dominance
5 Which Role for the National Competition Authority in Quantification of Damages
Chapter 23 The Damages Directive in Latvia
1 Introduction
2 Transposing the Damages Directive
3 Right to Full Compensation
4 Disclosure of Evidence (Including Evidence Included in the File of a Competition Authority)
4.1 Disclosure of Evidence
4.2 Legal Privilege
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with the National Competition Authority
10 Consensual Dispute Resolution
11 Temporal Application
12 Centralisation of Private Enforcement at a Specialised Court
13 Conclusion
Chapter 24 The Damages Directive in Lithuania
1 Introduction
2 Transposing the Damages Directive
3 Right to Full Compensation
4 Disclosure of Evidence
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with the Lithuanian Competition Council
10 Consensual Dispute Resolution
11 Temporal Application: Which Were Considered to Be the Substantive Provisions of the Directive, So That It Was Decided Not to Apply Them Retroactively Pursuant to Article 22 of the Directive?
12 Reforms Outside the Scope of the Damages Directive
13 Statistics on Private Enforcement Comparing the Scenarios Before and After the Adoption of the Damages Directive
14 Conclusions
Chapter 25 The Damages Directive in Luxembourg
1 Introduction
2 Transposing the Damages Directive
2.1 Brief Overview of the Position Before the Implementation of the Damages Directive
2.2 How the Directive Has Been Transposed? Were the Provisions Contained in the Directive Transposed in Your Jurisdiction So as to Deal Not Only with Competition-Based Damages Actions but Also with Other Type of Actions for Damages?
2.3 Are There Any Differences from Region to Region Within the Member State as Regards Damages Actions for Breach of National or EC Competition Rules?
2.4 Are There Significant Misalignments with the Directive? Was It Transposed in Its Wordings or Did Your Member State Adopted a More Far-Reaching Approach on Any Specific Point/Topic?
2.5 If Any, Which Issues Emerged During the Transposition Process? How They Have Been Solved (or Non-solved)?
3 Right to Full Compensation
4 Disclosure of Evidence (Including Evidence Included in the File of a Comp. Authority)
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with NCAs
10 Consensual Dispute Resolution
10.1 Suspensive and Other Effects (i.e., Mitigating Factor) of Consensual Dispute Resolution
10.2 Effect of Consensual Settlements on Subsequent Actions for Damages
11 Temporal Application: Which Have Been Considered as Substantive Provisions of the Directive So That Their Application Was Decided Not to Be Applied Retroactively Pursuant to Article 22 of the Directive?
12 Reforms Outside the Scope of the Damages Directive
12.1 Are There Specialised Courts for Bringing Competition-Based Damages Actions as Opposed to Other Actions for Damages?
12.2 Legal Costs
12.3 Availability of Group Litigation Mechanisms?
13 Statistics on Private Enforcement Comparing the Scenarios Before and After the Adoption of the Damages Directive
13.1 On Average, How Long Do Competition-Based Damages Actions Take?
14 Conclusion
14.1 State of Play and Potential Developments
Chapter 26 The Damages Directive in Malta
1 Introduction
2 Transposing the Damages Directive
2.1 Overview of the Position Before the Implementation of the Damages Directive
2.2 Scope and Modality of the Transposition
3 Right to Full Compensation
4 Disclosure of Evidence
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with National Competition Authorities
10 Consensual Dispute Resolution
10.1 Suspensive and Other Effects of Consensual Resolution
10.2 Effect of Consensual Settlements on Subsequent Actions for Damages
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
12.1 Specialised Courts
12.2 Legal Costs
12.3 Collective Proceedings
13 Statistics on Private Enforcement Comparing the Scenarios Before and After the Adoption of the Damages Directive
14 Conclusion
Chapter 27 The Damages Directive in the Netherlands
1 Introduction
2 Transposing the Damages Directive
3 Right to Full Compensation
4 Disclosure of Evidence (Including Evidence Included in the File of a Competition Authority)
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Consensual Dispute Resolution
10 Temporal Application
11 Reforms Outside the Scope of the Damages Directive
11.1 Absence of Specialised Courts for Bringing Competition-Based Damages Actions
11.2 Introduction of the Possibility for Mass Damages Claims (WAMCA)
12 Statistics on Private Enforcement
13 Conclusion
Chapter 28 The Damages Directive in Poland
1 Introduction
2 Transposing the Damages Directive
3 Right to Full Compensation
4 Disclosure of Evidence (Including Evidence Included in the File of a Competition Authority)
4.1 General Remarks
4.2 Request for Disclosure of Evidence
4.3 Inadmissibility of Disclosure of Evidence
4.4 Consequences of the Breach of Duties
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with NCAs
10 Consensual Dispute Resolution
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
13 Statistics on Private Enforcement Comparing Scenarios Before and After the Adoption of the Damages Directive
14 Conclusion
Chapter 29 The Damages Directive in Portugal
1 Introduction
2 Transposing the Damages Directive
3 Right to Full Compensation
4 Disclosure of Evidence (Comprising Evidence Included in the File of a Competition Authority)
4.1 Disclosure of Evidence
4.2 Legal Privilege
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with NCAs
10 Consensual Dispute Resolution
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
12.1 Pre-filing Disclosure
12.2 Partial Centralisation of Private Enforcement at the Specialised Court
12.3 Protecting Failed Settlement Talks
12.4 Clarification of Parent Company Liability
12.5 Promoting the Portuguese Opt-Out Regime ('actio popularis')
13 Statistics on Private Enforcement Comparing the Scenarios Before and After the Adoption of the Damages Directive
14 Conclusion
Chapter 30 The Damages Directive in Romania
1 Introduction
2 Transposing the Damages Directive
3 Right to Full Compensation
4 Disclosure of Evidence
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with NCAs
10 Consensual Dispute Resolution
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
13 Damages Claims in Romanian Courts
14 Conclusion
Chapter 31 The Damages Directive in Slovak Republic
1 Introduction
2 Transposing the Damages Directive
3 Right to Full Compensation
4 Disclosure of Evidence (Including Evidence Included in the File of a Competition Authority)
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with NCAs
10 Consensual Dispute Resolution
11 Temporal Application
12 Reforms Outside the Scope of the Directive
13 Statistics on Private Enforcement Comparing the Scenarios Before and After Adoption of the Damages Directive
14 Conclusion
Chapter 32 The Damages Directive in Slovenia
1 Introduction
2 Transposition of the Damages Directive
2.1 Previous Rules
2.2 New Rules after the Transposition of the Damages Directive
2.3 Issues Emerged During Transposition Process
3 Right to Full Compensation
4 Disclosure of Evidence
5 Effect of National and Foreign Decisions
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
8 Limitation Periods
9 Cooperation with NCAs
10 Consensual Dispute Resolution
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
12.1 Availability of Group Litigation Mechanism
12.2 Joinder of Claims
13 Statistics on Private Enforcement Comparing the Scenario Before and After the Adoption of the Damages Directive
14 Conclusion
Chapter 33 Spain
1 The Transposition of the Damages Directive into Spanish Law
2 Private Enforcement in Practice
3 Substantive Aspects
3.1 Limitation
3.2 Right to Full Compensation
3.3 Quantification of Harm
3.4 Joint and Several Liability
3.5 Standing to Sue and Be Sued
3.6 The Passing-On of the Overcharge
Chapter 34 A View from the Bench
1 The Controversial Transitory Regime
2 Limitation Period
2.1 Territorial Jurisdiction
2.2 Access to Evidence
2.3 Legal Standing (or Locus Standi)
2.3.1 Who Can File a Private Action for Damages in Spain?
2.4 Capability for Being Sued
2.5 Special Consideration of the Liability of Subsidiaries
2.6 Substantive Issues
2.6.1 Existence of the Damage
2.7 Quantification of Damages
2.7.1 Application of Interest for Late Payment of Compensation
Chapter 35 An Economist View
1 Introduction
2 Principles on the Quantification of Harm in the Transposition
2.1 Rebuttable Presumption That Cartels Generate Harm
2.2 Courts Can Estimate Harm
2.3 Burden of Proof
3 Quantification of Harm in Practice: Recent Experience in Spanish Proceedings
3.1 Principles Guiding the Spanish Courts' Assessment of Parties' Quantification of Harm
3.2 On the Consequences of the Fragmentation of the Proceedings
3.3 On the Courts' Assessment of Expert Reports in the Envelopes Case
3.4 On the Courts' Assessment of Expert Reports in the Trucks Case
4 On the Evaluation of Economic Evidence
5 Conclusions
Chapter 36 Sweden
1 Introduction
2 Transposing the Damages Directive
2.1 The Transposition of the Directive into Swedish Law
3 Right to Full Compensation
3.1 New Rules on Payment of Interest for Antitrust Damages
4 Disclosure of Evidence
4.1 The Duty to Produce Documents or Objects
4.2 Inadmissible Evidence
5 Effect of National and Foreign Decisions
5.1 The Binding Effect of Ruling in General
5.2 A Broad Scope of Application
6 Joint and Several Liability
6.1 The Effects of Consensual Settlements on Subsequent Actions for Damages
6.2 Possibility of Recovery from Other Infringers
7 Quantification of Harm and Passing-on Issues
7.1 Quantification of Harm
7.2 Presumption of Harm
7.3 Passing-On of Overcharges in Swedish Law
7.4 Passing-On Defence
7.5 Indirect Purchasers
8 Limitation Periods
9 Cooperation with NCAs
10 Consensual Dispute Resolution
11 Temporal Application and Retroactive Effect
12 Reforms Outside the Scope of the Damages Directive
12.1 New Forum Rules in Sweden since 2016
12.2 Class Action/Group Litigation
12.3 Subsidiary Claims for Injunctions
12.4 Legal Costs in Antitrust Damages Cases
13 Statistics on Private Enforcement Comparing the Scenarios Before and After the Adoption of the Damages Directive
14 Conclusion
Chapter 37 United Kingdom
1 Introduction
2 Transposing the Damages Directive
3 Right to Full Compensation
3.1 Effectiveness
3.2 Heads of Damage
3.3 Restitutionary or Exemplary Damages
3.4 Ensuring Appropriate Compensation for Different Levels of the Supply Chain
4 Disclosure of evidence (including evidence included in the file of a Competition Authority)
4.1 Disclosure of Evidence
4.2 Access to the File
4.3 Black and Grey Documents
4.4 Confidentiality
5 Effect of National and Foreign Decisions
5.1 Effect on the Addressee(s)
5.2 Effect on National Courts
6 Joint and Several Liability
7 Quantification of Harm and Passing-On Issues
7.1 Overcharge
7.2 Pass-On and Mitigation of Loss
8 Limitation Periods
8.1 When Does Limitation Start to Run?
9 Cooperation with NCAs
10 Consensual Dispute Resolution
11 Temporal Application
12 Reforms Outside the Scope of the Damages Directive
12.1 Brexit
12.2 Collective Proceedings
13 Statistics on Private Enforcement Comparing the Scenarios Before and After the Adoption of the Damages Directive
14 Conclusion
Chapter 38 A View from the Bench
1 Introduction
2 Transposing the Damages Directive
3 Right to full compensation and the principle of effectiveness
4 Disclosure of evidence (including evidence included in the file of a Competition Authority)
4.1 Disclosure of Evidence
4.2 Legal Privilege
5 Effect of (Foreign) National Decisions
6 Joint and several liability and consensual settlements
7 Quantification of harm and passing-on issues
7.1 Quantification of harm and passing-on issues: guidance from recent cases
8 Limitation Periods
9 Reforms Outside the Scope of the Damages Directive
9.1 Collective Proceedings
10 Statistics on Private Enforcement Comparing the Scenarios Before and After the Adoption of the Directive
11 Conclusion
Chapter 39 An Economist View
1 Introduction
2 An Overview of Changes in the UK and Implications for Economic Evidence
2.1 Procedural Changes
2.2 Substantive Changes
2.2.1 Compensatory Losses (Following Article 3)
2.2.2 Changes to Limitation Periods (Following Article 10)
2.2.3 Limitations to Liability (Following Article 11)
2.2.4 Passing On (Following Article 14)
2.2.5 Presumption of Harm in Cartel Damages Actions (Following Article 17.2)
3 Rebuttable Presumptions and the Interpretation of Economic Evidence
3.1 Introduction
3.2 Classical Hypothesis Testing and Significance Tests in Damages Litigation
3.3 The Interaction with the Regulations
3.4 Potential Implications for UK Competition Claims
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