The OECD Report on International Private Enforcement

Officially known as ‘Individual and Collective Private Enforcement of Competition Law: Insights for Mexico in 2018’, this Report was prepared with a view to advise Mexico on how to reform its private enforcement regime. The Report can be found here. Advising Mexico in this regard required the pursuit of a comprehensive overview of international experiences with private competition enforcement – with a focus on Europe and North America, but also looking beyond these regions. This project also required the identification of the various elements that comprise private enforcement regimes around the world, the various forms that each of these elements may take, and how these elements relate to one another. I may of course be mistaken, but I think there is no other work like this in the market. As such, I circulate the Report here because I think it can provide a useful reference for anyone working or interested in private enforcement.

Jurisdictional Clauses and Abuses of a Dominant Position – Case C‑595/17 Apple ECLI:EU:C:2018:854

This review concerns the judgment of 24 October by the CJEU on whether generally worded jurisdiction clauses cover claims of abuse of a dominant position brought by one party to a contract against the other (Case C‑595/17 Apple ECLI:EU:C:2018:854). The interpretation of generally worded jurisdiction clauses, and whether they extend to cartel claims, was the topic of a couple of articles that I reviewed a few weeks ago here and here. Facts The case concerns a distribution contract entered into between Apple and eBizcuss (the ‘authorised reseller’ or ‘distributor’) which contained a jurisdiction clause conferring jurisdiction on the Irish courts. The clause read as follows: ‘This Agreement and the corresponding relationship between the parties shall be governed by and construed in accordance with the laws of the Republic of Ireland and the parties shall submit to the jurisdiction of the courts of the Republic of Ireland.’ In 2012, the authorised reseller brought proceedings before the tribunal de commerce de Paris…

How to Calculate Damages – BritNed Development Limited v ABB AB and ABB Ltd [2018] EWHC 2616 (Ch)

This case, available here, is the first cartel damages claim to reach final judgment in the English courts. Facts This was a follow-on claim from the European Commission’s Power Cables cartel infringement decision (the “cartel”). The cartel operated globally between 1999 and 2009 in the market for (extra) high voltage submarine and underground power cable projects. The Claimant – “BritNed” – is jointly owned by the operators of the UK and Dutch electricity systems, and operates a 1,000-megawatt (“MW”) capacity electricity submarine cable system connecting the Dutch and UK electricity grids, constructed in 2009-2010. The defendant, cartelist ABB, supplied the cable element of the electricity submarine cable system connecting the Dutch and UK electricity grids, and bid for the other significant element of the system, a converter. The claim was for: (i) an overcharge in the cable element of the submarine cable system; (ii) lost profits derived from the overcharge having led BritNed not to buy a higher-capacity cable, which would have…

Francisco Marcos, Barry J. Rodger and Miguel Sousa Ferro ‘The Promotion and Harmonization of Antitrust Damages Claims by Directive EU/2014/104 in ‘The EU Antitrust Damages Directive: Transposition in the Member States (OUP, 2018)

This paper is the second chapter of a book on ‘The EU Antitrust Damages Directive: Transposition in the Member States’, of which the authors are the editors. Oxford University Press will publish the book later this year – in December, I believe. This draft chapter can be found here. The paper assesses critically the features of the EU Damages Directive and the challenges Member States face in its implementation. The authors examine the contents and goals of the Directive, its provisions, and whether the Directive is likely to achieve its purported aim of fostering compensation of victims of antitrust infringements. It is structured as follows: A first section describes the path to the adoption of the Directive. The paper describes the various stages in the progressive promotion of private competition enforcement in Europe. After the CJEU judgment in Courage in 1999, which instituted a right to compensation for competition infringements, the Commission prepared a Green Paper on damages actions for…

Miriam C. Buiten, Peter van Wijck and Jan Kees Winters ‘Does the European Damages Directive Make Consumers Better Off’ (2018) Journal of Competition Law & Economics, 14(1) 91

The paper seeks to uncover what are the implications of private enforcement for deterrence, leniency, and consumer welfare. To address this question, the authors develop a dynamic model that considers two opposing effects on deterrence that arise from allowing partial compensation of victims. First, competition damages may reduce incentives to apply for leniency. Second, liability for damages may lead firms to refrain from engaging in a cartel in the first place by increasing potential participation costs. The authors find that these effects act in opposite directions, so there is a balance to be struck between promoting compensation and leniency applications. The paper is organized as follows. Section II discusses the legal position of competition victims under the EU Damages Directive, and remaining obstacles to obtaining compensation. The Directive aims to remove the main obstacles that victims of competition law infringements face when trying to obtain compensation for their loss. The Directive specifies that “any natural or legal person who has…

Jurgita Malinauskaite and Caroline Cauffman ‘The Transposition of the Antitrust Damages Directive in the Small Member States of the EU – A Comparative Perspective’ (2018) Journal of European Competition Law & Practice 9(8) 496

This paper, which can be found here, focuses on how four small EU Member States (Belgium, Latvia, Lithuania, and Luxembourg) transposed the various provisions of the Damages Directive, and on the challenges these countries faced in their attempt to align the Directive’s provisions with their national legal orders. It looks at the transposition of the Directive as regards the following topics: (i) the right to compensation; (ii) disclosure of evidence; (iii) effect of infringement decisions; (iv) limitation periods; (v) joint and several liability; (vi) passing on defences; (vii) presumption and quantification of harm; and (viii) consensual dispute resolution. The paper is quite detailed and descriptive, so it would be otiose to review how transposition occurred in the sampled countries as regards each of these topics. Suffice to say that the paper provides a good overview of some technical and linguistic obstacles these countries faced when transposing the Directive, as well as of the main challenges in aligning the Directive’s provisions with national…

Zygimantas Juska ‘The Effectiveness of Antitrust Collective Litigation in the European Union’ (2018) International Review of Intellectual Property and Competition Law 49(1) 633

The article, which can be found here, seeks to assess whether European efforts to promote compensation for anticompetitive harm have been successful. These efforts have focused on promoting compensation, treating deterrence as a goal best promoted through public enforcement. It finds that collective enforcement has not been successful in the EU, particularly by comparison to the US, where the main objective of private enforcement is deterrence. By granting standing to both direct and indirect purchasers without also creating appropriate collective redress mechanisms, the EU system merely ensures that neither direct purchasers nor indirect purchasers can effectively exercise their right to compensation. The paper argues that Europe should adopt a deterrence-enhancing approach to private enforcement that borrows from the US. The paper is structured as follows: Section 2 provides an overview of competition enforcement models in the EU, with an emphasis on private enforcement. It begins by describing how public enforcement prevails in EU competition law, which broadly assumes that fines and…

Peter Davis  ‘Economic Analysis in Damages Actions—Insights from Recent Proceedings in the UK’ (2017) Journal of European Competition Law & Practice 8(9) 593

This paper reviews the core legal test applied by the CAT for class certification in the two opt-out collective proceedings brought in the UK until now, and then considers the key economic issues at the heart of these cases. It begins by describing the relevant legal test for certifying a class. It then moves to the main question it seeks to address: how rigorous can the Tribunal be in the context of an opt-out collective proceeding order (CPO) when there has been either no or only very limited disclosure prior to the hearing, and the goal of class certification procedures is to have shorter hearings held within months of the claim form being served. It also reviews the economics questions raised by both class certification cases: In Mobility Scooters, the infringement was a vertical restriction related to the advertising of lower prices which affected seven out of 38 models of mobility scooters available in the market. The main questions for…

Michael J. Frese ‘Civil Liability for Single and Continuous Infringements’ (2018) World Competition 41 (2) 179

Infringement decisions by competition authorities in Europe provide irrefutable, or at least prima facie evidence of antitrust violations in follow-on cases brought before national courts. This binding effect of infringement decisions is meant to ease the burden on injured parties seeking to obtain damages. Evidentiary rules applicable to investigations thus have a bearing on the outcome of civil litigation and the scope of potential damages exposure. The single and continuous infringement (SCI) is an example of such an evidentiary rule. This legal construct alleviates the burden on competition authorities to prove individual details of cartels whose membership and activities may have evolved over time. However, appropriate limiting principles are required to ensure that defendants are not paying for harm they have not caused or could not have prevented. This article, available here, discusses the evidentiary value of single and continuous infringement findings in follow on damages litigation, and explores the available limiting principles. It is structured as follows: After the introduction,…

Olga Sendetska ‘Arbitrating Antitrust Damages Claims: Access to Arbitration’ (2018) Journal of International Arbitration 35(3) 357

In 2015, the Court of Justice of the European Union (CJEU, Court) delivered a judgment in CDC v. Akzo Nobel finding that broadly worded jurisdiction clauses do not extend to competition-related tortious damages claims. Even though the Court did not address arbitration clauses, a spillover into this area may nonetheless take place. This is reflected in how, both prior to and after the CDC judgment, Member States’ courts have reached conflicting conclusions when dealing with broad arbitration clauses. This article, which can be found here, reviews these developments as follows: The introduction reviews the relationship between arbitration and private competition enforcement in the EU. The arbitrability of competition law issues is now generally acknowledged in the EU. Nowadays, arbitral tribunals do not even discuss the issue of antitrust arbitrability in their awards. Academic commentators focus on discussing whether certain contractual formulas amount to valid consent to arbitrating EU competition law matters. Arbitral tribunals are able to deal with matters such…