EU's Private Damages Directive: sufficiently framed to achieve its underlying aims and objectives?
Item statusRestricted Access
Embargo end date31/12/2100
This thesis seeks to address the question: to what extent is the EU Directive on Antitrust Damages Actions sufficiently framed in its terms to achieve its underlying aims and objectives? It is argued that the Directive has one overriding goal: to make it easier for the victims of infringements of EU competition law – typically end-consumers – to claim compensation from the infringers. It is also argued that the authors of the Directive present a convincing case that one of the main reasons for the lack of victims claiming – let alone being awarded – compensation, prior to the adoption of the Directive, is weaknesses with the existing legal framework governing competition law damages actions at national level. The thesis examines four of the main areas covered by the Directive: disclosure of evidence; the effect of NCA decisions; limitation periods; and indirect purchaser standing and the passing-on defence. In each case, the relevant rules from the Directive are set out and an assessment is carried out. A crucial part of this assessment consists of seeking to ascertain the problems facing potential claimants prior to the adoption of the Directive and asking whether the Directive appears well-framed in terms of addressing those problems. As well as considering case law of the EU courts, the legal rules and jurisprudence of two leading Member States – the United Kingdom and Italy – are used as primary case studies in carrying out this assessment. The assessment of the measures considered in this thesis is a nuanced one. It is argued that the measures set out in Chapter II of the Directive on disclosure of evidence are generally well-framed and beneficial for claimants, crucially showing a keen understanding of the relationship between private and public enforcement. The assessment of Article 9, on the effect of NCA decisions is much less positive. It is argued that the measures are drafted in vague terms and compare unfavourably with existing rules and practices in the two case-study Member States. It is argued that while the measures set out in Article 10 on limitation periods do represent an improvement for claimants in certain respects, there are a number of key issues that they fail to address. Finally, the assessment of Articles 12 to 15 on indirect purchaser standing and the passing-on defence is positive in some respects, but it is argued that many of the measures do not adequately address the issues that they purport to tackle. It is also argued that these measures are unlikely to bear fruit, without certain issues which are not covered by the Directive, being addressed. Ultimately it is concluded that the Directive makes some important strides towards the realisation of its underlying aims and objectives, but that many of the measures examined are found to be too vague, too weak or too incomplete to fully address the key issues and that the Directive also fails to address some important issues at all.