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…

James Segan ‘Arbitration Clauses and Competition Law’ (2018) Journal of European Competition Law & Practice 9(7) 423

This paper, available here,  takes a practical take on how arbitration clauses should be construed when trying to determine whether a competition claim is arbitrable. It argues that the current EU approach to these clauses risks creating circumvention efforts, whereby competition law claims are ‘dressed up’ as contractual claims to circumvent the perceived effect of the CDC decision. A more predictable and sustainable approach would be the ordinary approach of focusing on the objective measure of connection between tortious competition law complaints and the subject matter of the agreement containing the arbitration clause. The paper is structured as follows: A first section reviews prior debates on the interplay between competition and arbitration. Historically, the literature focused on three topics, namely: (i) whether competition law claims are arbitrable at all; (ii) whether arbitral tribunals are under a duty to rule upon competition law claims raised by the parties or to raise such issues ex officio, and (iii) whether and in what ways a court,…

Barbara Warwas ‘The State of Research on Arbitration and EU Law: Quo Vadis European Arbitration?´ (2016) EUI Working Paper LAW 2016/23

This is not so much a paper as a book – or at least an extended report that can be found here. The goal of this paper is to provide a systematic literature review of studies on arbitration in recent decades, with a focus on emerging developments in arbitration and EU. Since it is 109 pages long, I will provide only a high-level overview, with detailed discussions of those topics that are of greater interest to me. Academic studies of arbitration have proliferated in recent decades, partially as a function of the professionalization of international arbitration practice. This abundant arbitration scholarship follows two streams. On the one hand, one can come across research largely revolving around the practicalities of arbitration whose main objective is to reveal how arbitration works in practice. On the other hand, one can find literature on the interplay between arbitration and law. This second type of literature is often more critical than studies on the practice…

Urszula Jaremba and Laura Lalikova  ‘Effectiveness of Private Enforcement of European Competition Law in Case of Passing-on of Overcharges: Implementation of Antitrust Damages Directive in Germany, France, and Ireland’ (sic) (2018) Journal of European Competition Law & Practice 9(4) 226

The  EU Damages Directive sets out that the goal of private enforcement is compensation – claimants should be neither over- nor under-compensated, which means that the passing on of overcharges can be invoked both as a shield (for the defendant in the proceedings) and as a sword (by indirect purchasers). The authors seeks to determine whether the Directive has been correctly transposed by Member States, and assess how the Directive’s rules on passing on have affected the relative position of the parties and the role of national courts in competition damages claims in the EU. The paper, which can be found here, is structured as follows: First, the paper describes how passing on has been treated under EU law over time. In doing so, the article reviews the CJEU’s case law (mainly Courage and Manfredi) and the Commission’s work leading to the adoption of the Damages Directive. Section 2 briefly deals with the contents EU Damages Directive as regards passing on,…

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…