Sebastian Peyer ‘Private antitrust enforcement in England and Wales after the EU Damages Directives: Where are we heading?’ in Pier Luigi Parcu, Giorgio Monti & Marco Botta (eds.) Private Enforcement of EU Competition Law: the Impact of the Damages Directive (2018, Elgar)

This paper, which can be found here, provides an overview of recent developments, and offers an insight into the functioning of private enforcement of competition law in England and Wales. It is structured as follows: The first section provides an overview of the legal framework for competition damages actions in the UK. Compensation claims for the infringement of UK or EU competition law are normally based on a breach of statutory duty. Claimants have sought to establish other causes of action in competition law, but their attempts to rely on unjust enrichment (restitution) or economic (intentional) torts have been unsuccessful so far. Economic torts, such as intentionally interfering with business by unlawful means and conspiracy to injure using unlawful means, require proof of intention to injure the claimant. Courts have found that this element is absent in competition infringements, at least in follow-on claims, since the intention to make an (illegal) profit through a cartel is not the same as…

Matthijs Kuijpers, Tommi Palumbo, Elaine Whiteford and Thomas B Paul on ‘Actions for Damages in the Netherlands, the United Kingdom and Germany’ (2018) Journal of European Competition Law & Practice 9(1) 55

This article – which can be found here –  provides an overview of private competition enforcement developments during the past year in the three EU jurisdictions where most such actions are brought. The paper is quite straightforward. Section 2 discusses the legislative developments in each of these jurisdictions, with a focus on the implementation of the EU Damages Directive and on collective redress (i.e. class actions). This section also discusses other recurring topics in follow-on damages litigation, such as the passing-on defence, access to evidence, standard of proof and limitation periods. Section 3 discusses stand-alone damages claims. It concludes that stand-alone claims are rarely successful – with the potential exception of ‘quasi-follow’ on claims, i.e. claims that reflect infringement decisions but which are not addressed to the infringing parties sanctioned by competition authorities, such as in the various instances of credit card litigation I described in previous emails. It further finds that abuse actions (i.e. complaints against powerful companies) are more common…

Ariel Ezrachi on ‘EU Competition Law Goals and The Digital Economy’ (2018) Report for BEUC – The European Consumer Organisation

This paper – which can be found here – remarks that questions regarding whether certain conducts pose competition problems have become increasingly common in the face of new business strategies, new forms of interaction with consumers, the accumulation of data and the use of big analytics. It argues that answers can only be provided by taking into account the goals and legal framework of specific competition regimes. The author focuses on the EU. The paper thus outlines the goals and values of European Competition law, and looks at how they apply to digital markets. The report is structured as follows: The paper begins with an introduction to the constitutional foundations of European Competition law. Competition policy is one of several instruments used to advance the goals of the European Treaties. In this context, competition rules must be interpreted in the light of the wider normative values of the EU. These are not limited to economic goals such as promoting consumer welfare, but…