Julian Nowag and Liisa Tarkkila on ‘How much effectiveness for the EU Damages Directive? Contractual clauses and antitrust damages’ (2020) Common Market Law Review 57 433

Market actors often include clauses in contracts which determine the jurisdiction, and/or forum in which any claim arising from the contract may be heard; or clauses which prohibit reassigning a claim or joining a class action. In some situations, these clauses may make it more difficult to obtain full compensation for a competition law infringement. Antitrust victims can be forced to bring damages actions in jurisdictions or before arbitrational tribunals that have less favourable cost and evidential rules; they may also encounter language-related problems. Similarly, preventing forms of collective redress has obvious benefits for defendants whenever a large number of victims only suffered very small individual harm. This paper, available here, explores the extent to which the aims of the Damages Directive and development of a strong EU private enforcement system in Member States’ courts might be undercut by such contractual arrangements. It argues that EU law protects consumers against clauses that could hinder the full effectiveness of the right to compensation…

Michal Gal ‘The Case for Limiting Private Litigation of Excessive Pricing’ (2020) Journal of Competition Law and Economics 15(2-3) 298

Excessive pricing raises strong concerns for private competition litigation, for three reasons: (1) the inherent difficulty of defining what constitutes an unfair price; (2) additional challenges inherent to private excessive pricing litigation, such as the need to pinpoint when exactly a price becomes unfair in order to calculate damages; and (3) the institutional features of general courts in EU member states. Given that private litigation of competition law violations is only beginning to develop in the EU, and collective redress mechanisms are still viewed with caution by many member states, this is exactly the time to ensure that, as private litigation expands, it will increase welfare. This is the purpose of this paper, which is available here. Section 2 addresses the inherent difficulty of determining when a price becomes unfair. The excessive pricing prohibition, though longstanding, suffers from serious and inherent difficulties in its implementation. In particular, it lacks clear and workable criteria. The challenges can be summarised as follows: to decide…

Jean-François Laborde ‘Cartel damages actions in Europe: How courts have assessed cartel overcharges’ (2019) Concurrences

The primary objective of this study, available here, is to analyse how national European courts have assessed cartel overcharges. In addition, it also provides figures on the development of cartel damages actions in Europe (how many cases were decided, in which countries, with which outcomes, etc.). It was completed with the help of lawyers, law professors, economists, national competition authorities and national judges from 30 European countries.   Now in its fourth edition, this study shows that national courts in Europe have handed down judgments in at least 239 cartel damages actions in 13 countries, relating to more than 63 cartels. In these judgments, courts have given many insights into how to assess cartel overcharges. Section I describes the methodology followed. The process employed for this research involved four steps. The cases were identified; copies of judgments were gathered; using a recent automatic translation service, judgments were translated into English; their content was then analysed. To identify cases, contributors were asked whether they…

Magnus Stand and Eric Monsen ‘Passing-on unlawful charges: Still no small matter’ (2019) European Public Law 25(2) 249

‘Passing on’ occurs when the economic burden of a charge levied from a business is passed on that business’s customers, and possibly even further down the supply chain. The main issues at stake as regards passing on are whether it should be relevant to the calculation of payable damages, and whether  downstream claimants should be able to bring an action in respect of an economic burden passed on to them. The Court of Justice has largely left it to the national legal systems of the Member States to find proper solutions to the passing-on problem in the repayment of unlawfully levied charges. It has nevertheless scrutinised national approaches with increasing stringency. In this paper, available here, the authors call for EU harmonisation of the legal issues triggered by passing on. To that end, the authors present two alternative models for harmonisation. Section 2 describes existing EU rules on passing on. Most European case law on passing on is concerned the duty of…

Joshua Davies and Rose Kohles ‘Antitrust Annual Report – Class Action Filings in Federal Court’

This report, available here, reviews US federal class actions from 2013-2018. It looks at various statistics regarding US federal class actions over the years (with lots of graphs and pics). The Report provides a number of interesting insights without extensive analysis. It finds that: (i) a mean number of 420 complaints are filed per year in the US; (ii) most antitrust class actions that reached Final Approval did so within three to five years; (iii) the mean settlement amount varied by year from about $25 million to $42 million, and the median amount varied by year from about $5 million to $11 million; (iv) the total annual settlements ranged from about $1 billion to $5 billion per year; (v) the cumulative total of settlements was $19.3 billion from 2013-2018. While a mean average of 420 cases were filed a year between 2009 and 2018, there is significant variation year-on-year. This seems to be driven by the size of the industry…

Cento Veljanovski ‘Collective Certification in UK Competition Law: Commonality, Costs and Funding’ (2019) World Competition 42(1) 121

This article, available here, provides critical assessment of the UK’s emerging collective certification process. It argues that the Competition Appeal Tribunal has applied the test for certification too strictly and not in accordance with the case law surrounding the ‘Canadian model’ on which the UK certification procedure is based; and incorrectly treated the award of aggregate damages as the summation of individual damages. It also argues that the way the CAT has handled these two factors threatens to undermine the purpose and effectiveness of the UK’s new collective action regime. The piece is structured as follows: Section 2 provides an overview of the collective certification requirements. Prior to the Consumer Rights Act 2015, which amended the Competition Act, potential litigants had limited opportunities to bring a group action against a common defendant. One might try to rely on group litigation orders – a case management device that allows a court to manage separate claims which share ‘common or related issues of fact…