EU Competition Litigation: Transposition and First Experiences of the New Regime (Swedish Studies in European Law Book 12)

"All EU Member States have now transposed Directive 2014/104/EU on damages actions for breaches of competition law into national law. The Directive (and the soft-law instruments accompanying it) not only marks a new phase for private enforcement of competition law but also, more generally, provides a novel and thought provoking instance of EU harmonisation of aspects of private law and civil litigation. Following up on a previous volume in the Swedish Studies in European Law series, published in 2016, this book offers contributions from top practitioners and scholars from all over Europe, who present and discuss first experiences from the implementation of the new damages regime in various jurisdictions. Topics covered include theoretical and practical reflections on the state of private enforcement in Europe, the balancing of conflicting interests pertaining to public and private enforcement of competition law respectively, and specific legal issues such as causation and the estimation of harm. The authors explore problems solved, problems created, and future challenges in the new regime of private enforcement of competition law in Europe, offering predictions as to issues that may have to be settled through recourse to the European Court of Justice"--Bloomsbury Publishing. Foreword Editorial Preface Table of Contents Table of Cases Table of Legislation PART I: ROLLING OUT THE NEW PRIVATE ENFORCEMENT REGIME 1. EU Competences and the Damages Directive: The Continuum Between Minimum and Full Harmonisation I. Introduction II. The Directive as Minimum Harmonisation of the Right to Damages III. The Member States' Competence Continuum IV. Conclusions and Outlook 2. The State of Private Enforcement of Competition Law: A Practitioner’s Perspective I. Introduction II. Damage Quantification and Interest III. Passing-on Defence and Indirect Purchasers IV. The Disclosure of Evidence Inter Partes V. Access to Information from Competition Authorities VI. Joint and Several Liability and Choice of Defendants VII. Jurisdiction and Applicable Law VIII. Considerations on the Choice of Forum IX. Litigation Funding and Claims Bundling X. Conclusion 3. Managing Transposition and Avoiding Fragmentation: The Example of Limitation Periods and Interest I. Limitation Periods and Interest in Competition Damages II. Directive 2014/104 on Limitation Periods and Interest III. Transposing the Relevant Passages into Swedish Law IV. The Practical Consequences of the Transposition V. Discussions and Conclusions 4. A First Look at the Portuguese Act 23/2018 Transposing the Private Enforcement Directive I. The Transposition Procedure of the Private Enforcement Directive II. The Scope of the Portuguese Act III. Exclusive Competence of the Specialised Portuguese Court for Competition Regulation and Supervision IV. Substantive Solutions V. Amendments beyond the Implementation of the Directive: Collective Redress VI. Conclusion PART II: BALANCING PUBLIC AND PRIVATE ENFORCEMENT 5. Private Enforcement of Public Law – An Inconsistent Approach to Remedies? I. Private Enforcement in General II. Behavioural Remedies in Swedish Competition Law III. Subsidiary Claims in Swedish Law IV. The Effects of the Subsidiary Right to Litigate V. Concluding Remarks 6. The Binding Effects of Decisions and Judgments under EU Competition Law I. Introduction II. Court Judgments in Subsequent Domestic Court Proceedings III. Court Judgments in Cross-border Situations IV. Judgments in Subsequent Administrative Proceedings V. CA Decisions in Subsequent Administrative Proceedings VI. CA Decisions in Subsequent Proceedings before Domestic Courts VII. CA Decisions before Courts in Cross-border Situations VIII. Commission Decisions in Subsequent Proceedings before Courts IX. Commission Decisions in Subsequent Proceedings before CA X. Concluding Remarks 7. Facilitating Follow-on Actions? Public and Private Enforcement of EU Competition Law After Directive 2014/104 I. Introduction II. The Tasks of Public and Private Enforcement III. Encouraging Private Action by Public Action IV. Damages as Part of Public Enforcement V. Concluding Discussion 8. The Practical and Legal Effects of National Decisions in Subsequent Damages Actions I. Article 9 of the Directive II. The Transposition of Article 9 in Swedish Law III. Analysis of Article 9: A Swedish Example of Inconsistencies IV. Conclusions 9. The Quest for Evidence – Still an Uphill Battle for Cartel Victims? I. Introduction II. Taking the Risk of Going to Court III. The Directive's Provisions on Disclosure IV. Accessing the Commission's Case File V. Accessing Information through the Commission's Infringement Decisions – The Evonik Degussa Case VI. Joining the Dots PART III: SOLVED AND UNSOLVED ISSUES IN PRIVATE ENFORCEMENT 10. Damages Actions in Article 102 TFEU Cases: The New Frontier for Private Enforcement I. Introduction II. Distinctive Features of Article 102 TFEU Civil Litigation III. The Conditions for Establishing Civil Liability IV. A Swedish Case Study: Telia Follow-on Damages 11. Implementing the Rules of the Damages Directive on Joint and Several Liability: The SME Derogation I. Introduction II. Exception for ‘Failing SMEs’: Background III. SME Status IV. Applicable Conditions for the ‘Failing SME’ Exception V. The Extent of SME Liability VI. Anticipated Consequences and the Assessment 12. Causation and Damage: What the Directive Does Not Solve and Remarks on Relevant EU Law I. Introduction II. The Requirement and Notion of Full Compensation III. The Full Effect, Effective Application and Practical Effects of Articles 101 and 102 TFEU IV. Remote Damages, and Long and Complex Causal Links V. Causation and Damage-related Presumptions and Facilitations VI. Concluding Remarks 13. The Presumption of Harm and its Implementation in the Member States' Legal Orders I. Introduction II. The Legal Nature and Scope of Application of the Presumption of Harm III. The Implementation of the Presumption of Harm in Member States' Laws: Open Issues IV. Conclusion 14. Article 17(3) of the Damages Directive and the Interaction Between the Swedish Competition Authority and Swedish Courts I. Introduction II. The Legislative History of Article 17(3) III. The Aim of Article 17(3) IV. Some Relevant Swedish Context V. The Non-transposition of Article 17(3) in Swedish Law VI. Conclusions Index All EU Member States have now transposed Directive 2014/104/EU on damages actions for breaches of competition law into national law. The Directive (and the soft-law instruments accompanying it) not only marks a new phase for private enforcement of competition law but also, more generally, provides a novel and thought provoking instance of EU harmonisation of aspects of private law and civil litigation. Following up on a previous volume in the Swedish Studies in European Law series, published in 2016, this open access book offers contributions from top practitioners and scholars from all over Europe, who present and discuss first experiences from the implementation of the new damages regime in various jurisdictions. Topics covered include theoretical and practical reflections on the state of private enforcement in Europe, the balancing of conflicting interests pertaining to public and private enforcement of competition law respectively, and specific legal issues such as causation and the estimation of harm. The authors explore problems solved, problems created, and future challenges in the new regime of private enforcement of competition law in Europe, offering predictions as to issues that may have to be settled through recourse to the European Court of Justice. The eBook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com. Open access was funded by the Swedish Studies Network "All EU Member States have now transposed Directive 2014/104/EU on damages actions for breaches of competition law into national law. The directive (and the soft-law instruments accompanying it) does not only mark a new phase for private enforcement of competition law but also, more generally, a novel and thought-provoking instance of EU harmonization of aspects of private law and civil litigation. Following up on a previous Hart volume in the Swedish Studies in European Law series, published in 2016, this book offers contributions from top practitioners and scholars from all over Europe who present and discuss first experiences from the implementation of the new damages regime in various jurisdictions. Topics covered include theoretical and practical reflections on the state of private enforcement in Europe, the balancing of conflicting interests pertaining to public and private enforcement of competition law respectively, and specific legal issues such as causation and the estimation of harm. The authors explore problems solved, problems created, and future challenges in the new regime of private enforcement of competition law in Europe, offering predictions as to issues that may have to be settled through recourse to the European Court of Justice"-- Provided by publisher