Miguel Sousa Ferro ‘Antitrust private enforcement and the binding effect of public enforcement decisions’ (2019) Market and Competition Law Review 3(2) 51

This paper, available here, provides an overview of the binding effect of public enforcement decisions in follow-on competition law cases in Europe. It discusses the material, subjective and temporal scope of this binding effect. It also tackles other issues, such as the obligations of national courts vis-a-vis non-infringement decisions and ongoing investigations. Finally, it looks into some arguments put forward by litigants before national courts to avoid or circumvent the binding effect of public enforcement decisions. Sections II and III explain the basis for EU and national competition infringement decisions being binding in subsequent damages claims. It follows from Article 16(1) of Regulation /2003, which mainly codified preceding case law, that European Commission decisions identifying infringements of EU competition law which have become final (res judicata) are binding upon national courts in follow-on private enforcement actions. A national court can only escape this binding effect if it believes that the Commission’s infringement decision is invalid and the CJEU declares it to be…

Christian Ritz, Carolin Marx and Manuel Bogenreuther  ‘Prima Facie Evidence in Cartel Damages Litigation – Landmark Decision by the German Federal Court of Justice in the Rail Cartel Case’ (2019) Journal of European Competition Law & Practice 10(8) 491

This paper, available here, deals with a judgment of 11 December 2018 by Germany’s Federal Court of Justice’s Cartel Panel dealing with the applicability of the principle of prima facie evidence (in German ‘Anscheinsbeweis’) regarding causation of damage. Section II focuses on the law of evidence regarding competition damages in Germany. Under German law, each party bears the burden of proving all elements of any statutory provision on which they rely. For cartel damages cases, this means that a claimant asking for damages needs to prove: (i) an infringement of competition law, (ii) the existence of such damages and (iii) that the damages were caused by the infringing behaviour. This situation changed, as regards follow-on claims, as a result of the implementation of the EU Damages Directive. With the goal of ensuring that neither the burden nor the standard of proof render the exercise of the right to compensation practically impossible or excessively difficult, Article 17(2) of the Damages Directive…