EU Antitrust Private Enforcement: DAMAGES ACTIONS

Transcription

1 Baker & McKenzie / ACCE Brussels, 8 June 2011 EU Antitrust Private Enforcement: DAMAGES ACTIONS Filip Kubík 1

2 Public enforcement Private enforcement 2

3 Regulation 1/2003 National courts have the power to apply Articles 101 and 102 of the Treaty (in full). (Article 6 of Reg. 1) Obligation to apply Articles 101 and 102 (Article 3 of Reg. 1 / rules of public policy) 3

4 Regulation 1/2003 National courts have an essential part to play [ ] When deciding disputes between private individuals, they protect the subjective rights under [EU] law, for example by awarding damages to the victims of infringements [of Articles 101 and 102]. (Recital 7 of Reg. 1) 4

5 The right to damages under EU law Case C-453/99 Courage and Crehan & Joined Cases C-295/04 to C-298/04 Manfredi - the full effectiveness of Article 101 [ ] would be put at risk if it were not open to any individual to claim damages for loss caused to him by [such an infringement] 5

6 The right to damages under EU law Principle of effectiveness Principle of equivalence Principle of full compensation (incl. interest) 6

7 Stand-alone damages actions Follow-on damages actions 7

8 Uniform application of the EU antitrust rules When national courts rule on [practices] which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission. (Article 16 of Reg. 1) 8

9 Standing to bring a damages action Direct/indirect customers Types of harm Passing-on defence 9

10 Types of harm Price A: Effect of higher prices on actual consumers Cartel price Counterfactual price C A B B: Effect of higher prices on lost consumers/loss of volume to actual consumers D E F Demand 0 Cartel quantity Counterfactual quantity Quantity 10

11 Burden of proof / Standard of proof Infringement / harm / causal link Passing-on Presumptions? / Shift of the burden of proof? Access to evidence 11

12 Quantification of harm Inherent difficulty: estimation of a hypothetical situation Data availability? Quantification methods Use of expert evidence Court s power/readiness to estimate 12

13 Quantification methods Approach Comparator-based Time series Market-structurebased Crosssectional Difference-indifferences Financial performance Financial-analysisbased Financial tools Industrial organisation models Basis for counterfactual Markets Firms Countries Before and during During and after Before, during and after A firm, market or country before, during and after Cost plus Comparator firms and industries Cost of capital Cournot oligopoly Bertrand oligopoly Monopolistic competition Perfect competition Auctions Techniques Comparison of averages Crosssectional econometrics Comparison of averages Interpolation Time- series econometrics Comparison of averages (arithmetic difference-indifferences) Panel data regression Profitability Event studies Valuation Bottom-up costing Multiples Discounting Estimation of structural models of competition Two-model estimation 13

14 Costs Court fees Lawyers fees (contingency, success fees, etc.) Funding Loser pays? 14

15 Collective damages actions Availability / admissibility Types of actions: Group / representative / assignment model 15

16 When and where? Limitation periods Choice of forum Forum shopping / torpedo actions Enforceability of damages awards 16

17 Outlook Case-law / Legislation General principles of collective redress? Directive on antitrust damages actions? Guidance on quantification of harm? 17

18 QUESTION TIME 18