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3 results on '"Antitrust Damages Directive"'

1. Legitimacy and effectiveness concerns in China's private antitrust enforcement regime: a comparative analysis with the EU and US regimes.

Author

Wang, Jing and Cahill, Dermot

Subjects
ANTITRUST law, COMPARATIVE studies, ANTITRUST violation lawsuits, PERSONALLY identifiable information, JUDGE-made law
Abstract

The year 2007 heralded a major advance in China's entry to the global economy's rules-based marketplace. Its Anti-Monopoly Law 2007 (AML 2007) taking inspiration from European Union (EU) antitrust concepts contained internationally familiar key antitrust prohibitions. It appeared to satisfy key benchmarks, which any credible antitrust enforcement system should exhibit, namely Legitimacy and Effectiveness. However, in this original contribution, analysing 14 years of leading case law, the authors identify several key persistent Legitimacy and Effectiveness issues which arise when private parties attempt antitrust enforcement through the courts. On key issues such as: (i) Compensation awards inadequacy; (ii) Lack of rights for indirect purchasers; (iii) Absence of a passing-on defence; and (iv) Limitations of collective litigation mechanisms, deficiencies arising in each of these four areas are identified and analysed. Pathways to reform are set out. Comparative analysis with the corresponding EU and US jurisprudence is undertaken throughout, to illuminate the contrast in treatment for antitrust litigants facing similar antitrust situations. Recently enacted reform legislation (AML 2022) does not remedy the antitrust protection concerns identified by the authors. Private parties seeking antitrust redress in China will therefore continue to have weaker remedies in antitrust enforcement cases, in contrast with their EU and US counterparts. The absence of comprehensive reform means that Legitimacy and Effectiveness deficiencies will continue to undermine legal protection for China's private antitrust enforcement litigants. Furthermore, the research demonstrates how norm adoption on its own cannot raise the propect of better outcomes, unless accompanied by corresponding evolution in the provision of more robust enforcement rights and remedies for antitrust litigants, as well as evolution in judicial interpretation to support antitrust norms acceptance. [ABSTRACT FROM AUTHOR]

Published
2023
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2. Effective judicial protection and damages in EU law : the case for the deterrent effect

Author

Weingerl, Petra and Weatherill, Stephen

Subjects
340, Law, European Union law, Antitrust Damages Directive, comparative law, damages, effective judicial protection, EU competition law
Abstract

The aim of the thesis is to examine whether the prohibition of overcompensation in the Antitrust Damages Directive is compatible with the EU legal and normative framework. To this end, the analysis is carried out on two levels. First, the rationale for damages in the selected jurisdictions (England, France and Germany) and in the EU is examined to test the main underpinning justification for the prohibition of overcompensation in the Antitrust Damages Directive, i.e. the 'European legal tradition argument'. Second, the thesis addresses broader constitutional implications that underpin the debate on the desirability of the pursuit to prohibit overcompensation in the EU. These entail questions pertaining to the adoption of such measures and, thus, exploring whether the EU has the legitimacy to legislate and the related question of competence and the choice of the appropriate legal basis. The argument to be advanced in this thesis is that the aim of achieving a sufficient level of deterrence with awarding damages for EU competition law infringements stems from the very conceptual basis in which the right to damages is grounded - the principle of effective judicial protection and the principle of effectiveness. Thus, as the analysis reveals, the prohibition of overcompensation is inconsistent with the EU legal framework, since it has potential to jeopardise the deterrent or dissuasive function of antitrust damages actions. The prohibition of overcompensation has significantly contributed to the business-biased gist of the Directive, and thus to breaking the link between the rationale for the right to damages for EU competition law infringements, the legal basis and the content of the Directive. The thesis ultimately argues that the Directive's prohibition is incompatible with the principles of conferral, subsidiarity and proportionality, and to a considerable extent inconsistent with the EU's legal and normative framework.

Published
2017

3. The implementation of the antitrust damages directive in Slovenia

Author

Weingerl, Petra

Subjects
deterrence, pogodbe, kršenje, full compensation, direktive, proizvodi, Evropska unija, odgovornost, civil liability, damages, obligacije, udc:347.51, prevention, Antitrust Damages Directive, Slovenija
Abstract

In December 2016, Member States need to implement the Antitrust Damages Directive. The Directive adopts the full compensation principle and expressly prohibits overcompensation. I will embark on an enquiry whether such an approach departs from the Slovene general regime of civil liability, in particular liability in damages. At face value, one might argue that the Slovene civil liability regime prohibits non- compensatory rationales for awarding damages. This article challenges this perception. It argues that there is a space for interpreting the rationale for damages in the Slovene private law, when this is justified with dissuasiveness and sufficient reasons are given, as well as embracing non- compensatory considerations, prevention and deterrence in particular. Regrettably, the judiciary does not necessarily keep in step with such an interpretation. However, there are tendencies in the legal scholarship to change the established case law. In this setting, the special liability regime based on the Directive, which prohibits overcompensation, can be seen as an exception to the general regime for damages awards in certain contexts. This approach is contrasted with damages awards regime in the labour law context, which is also based on the EU regulation. In this context, the Slovene legislator expressly embraced prevention and deterrence as rationales for the award of damages. Thus, legislation which is based on or influenced by EU law can lead to different outcomes in practice. It can either reinforce preventive tendencies of the general regime of civil liability or, as it is seen in the competition law context, undermine them. Nevertheless, the (proposed) Slovene implementing legislation opts for a solution that accommodates both the Antitrust Damages Directive and the general regime of civil liability.

Published
2018

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