Table of Contents. I State of play of antitrust damages in the EU and overview of the proposed reform
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1 Table of Contents FOREWORD By Vice-President Joaquín A lmunia Introduction By Eric Morgan de Rivery and Jacques Derenne Keynote Speech By Vice-President Joaquín A lmunia I State of play of antitrust damages in the EU and overview of the proposed reform Part I: ANTITRUST DAMAGES AT MEMBER STATES LEVEL By Barry Rodger Section (I): The research methodology project Section (II): Competition case-law across the EU Section (III): Remedies in competition litigation May 2004 Accession States and States with Limited Private Enforcement Experience States with Developing Private Enforcement Experience States with Considerable Private Enforcement Experience Section (IV): Remedies and other data Section (V): Success in competition case-law Part II: National Courts Perspective Binding effect of NCA decisions By Jacqueline Riffaut Silk Section (I): Introduction The principle of legal certainty bruylant 5
2 2. The obligation of sincere cooperation between, on the one hand, national courts, and on the other, the Commission and the EU courts Effectiveness and efficiency Section (II): The need for convergence The scope of the Proposal The diversity of national rules applicable to damages actions throughout Europe Section (III): The binding effect rule and the legal elements of tort liability The fault The fault requirement: a decision The fault requirement: an addressee The link of causation: effect and object Existence of harm Section (IV): How to ensure the effective implementation of the new rule? Access to decisions on public enforcement taken by NCAs in the EU Should an infringement to the binding effect rule be sanctioned? Would the claimant have a choice? Should control of the application of the binding effect rule be given to reviewing courts? II INITIATING A CLAIM Part I: PLURALITY IS THE KEY: COLLECTIVE REDRESS, CONSENSUAL SETTLEMENTS AND OTHER INCENTIVE DEVICES By Rafael A maro Section (I): EU legal tradition and US experience Section (II): Collective redress: Opt-in? Opt-out? Both? / Follow-on? Stand alone? Both? / Group actions? Representative actions? Both? Do opt-in systems work? Should group actions be limited to follow-on litigation? Are representative actions a good alternative to group actions? bruylant
3 Section (III): Consensual settlements: Business litigation? Consumer litigation? Both? /Opt-in? Opt-out? Both? Is there a need to protect settling infringers sued in further courts litigation? Are consensual settlements adapted to mass consumer litigation? Are opt-out consensual settlements the future of alternative dispute resolution? Section (IV): Incentive devices: Private funding? Public funding? Both? May group action systems work in E.U. Member States without punitive damages and contingency fees? Is public funding a sustainable alternative to private funding? Part II: Collective redress: the group and the judicial supervision of the settlement By Vincent Smith Section (I): Who is represented? Section (II): Supervising the method of settlement distribution Notice to the represented group Ensuring that claimants fall within the class Unclaimed settlement proceeds III Determining liability Part I: Quantification issues: estimating and calculating harm, presumption of harm in cartel cases By Pascale Déchamps Section (I): The new draft Directive from the European Commission and general approach to estimating damages Estimating damages within the context of European law General approach to estimating damages Estimating harm from cartels and exclusionary conducts Section (II): How to construct the benchmark Classification of methods and models Cross-sectional analysis Before during after analysis bruylant 7
4 4. Difference-in-differences analysis Financial-analysis-based techniques Market-structure-based analysis, using the example of Cardiff Bus 132 Section (III): What about the presumption of harm in cartel cases? What presumption? Is there any economic rationale for a presumption of X% overcharge in cartel cases? Section (IV): How to go from the benchmark to calculating harm? Applying interest Part II: Critical observations on the proposed presumption of harm: a diabolical presumption of platonic harm By Thomas Rouhette Section (I): The distortion of fundamental principles of civil liability and procedure for a debatable purpose Section (II): The first of its kind? Section (III): The practical use of the presumption of harm? Part III: Imputability issues in collection of damages: joint liability, parent-subsidiary relationship, etc By Muriel Chagny Section (I): Imputability to the liable part(ies) and binding effect of Competition authorities decisions Imputability on the basis of competition decisions Possible imputability on the basis of decisions other than findings of infringement The differentiated imputability on the basis of an infringement decision Imputability of an undertaking s actions to legal persons Imputability to the parent company in pursuit of a foundation Possible imputability to the subsidiary devoid of autonomy Section (II): Imputability between co-infringers and solidarity rules The principle: imputability shared among joint and several co-infringers The scope to be specified of shared imputability The complex consequences of shared imputability bruylant
5 2. The exception: Limited imputability in favor of the leniency recipient A questionable measure of civil leniency Back to the general rule for the benefit of injured parties By Jacques Bourgeois IV Conclusion Section (I): Introduction Section (II): The aim(s) of the Directive Section (III): The effect of national competition authorities decisions on national courts of other Member States Section (IV): On determining liability Section (V): Tort Law Public law in disguise Index Annex The editors would like to thank Jessica Walch, avocat, and Alice Xavier, student, for their contributions to compiling and harmonizing various chapters of this book. bruylant 9
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