Table of Contents FOREWORD... 11 By Vice-President Joaquín A lmunia Introduction... 15 By Eric Morgan de Rivery and Jacques Derenne Keynote Speech.... 19 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... 29 By Barry Rodger Section (I): The research methodology project... 31 Section (II): Competition case-law across the EU... 33 Section (III): Remedies in competition litigation... 40 1. May 2004 Accession States and States with Limited Private Enforcement Experience.... 42 2. States with Developing Private Enforcement Experience... 43 3. States with Considerable Private Enforcement Experience... 45 Section (IV): Remedies and other data... 52 Section (V): Success in competition case-law.... 55 Part II: National Courts Perspective Binding effect of NCA decisions... 61 By Jacqueline Riffaut Silk Section (I): Introduction... 61 1. The principle of legal certainty... 62 bruylant 5
2. The obligation of sincere cooperation between, on the one hand, national courts, and on the other, the Commission and the EU courts... 62 3. Effectiveness and efficiency.... 63 Section (II): The need for convergence.... 64 1. The scope of the Proposal.... 64 2. The diversity of national rules applicable to damages actions throughout Europe... 66 Section (III): The binding effect rule and the legal elements of tort liability... 68 1. The fault... 68 1.1. The fault requirement: a decision.... 68 1.2. The fault requirement: an addressee... 71 2. The link of causation: effect and object... 73 3. Existence of harm... 74 Section (IV): How to ensure the effective implementation of the new rule?... 76 1. Access to decisions on public enforcement taken by NCAs in the EU.. 76 2. Should an infringement to the binding effect rule be sanctioned?.. 77 3. Would the claimant have a choice?... 77 4. Should control of the application of the binding effect rule be given to reviewing courts?... 78 II INITIATING A CLAIM Part I: PLURALITY IS THE KEY: COLLECTIVE REDRESS, CONSENSUAL SETTLEMENTS AND OTHER INCENTIVE DEVICES... 81 By Rafael A maro Section (I): EU legal tradition and US experience... 81 Section (II): Collective redress: Opt-in? Opt-out? Both? / Follow-on? Stand alone? Both? / Group actions? Representative actions? Both?... 84 1. Do opt-in systems work?... 84 2. Should group actions be limited to follow-on litigation?... 89 3. Are representative actions a good alternative to group actions?... 93 6 bruylant
Section (III): Consensual settlements: Business litigation? Consumer litigation? Both? /Opt-in? Opt-out? Both?... 94 1. Is there a need to protect settling infringers sued in further courts litigation?... 94 2. Are consensual settlements adapted to mass consumer litigation?. 96 3. Are opt-out consensual settlements the future of alternative dispute resolution?... 100 Section (IV): Incentive devices: Private funding? Public funding? Both?... 102 1. May group action systems work in E.U. Member States without punitive damages and contingency fees?.... 102 2. Is public funding a sustainable alternative to private funding?... 106 Part II: Collective redress: the group and the judicial supervision of the settlement.... 111 By Vincent Smith Section (I): Who is represented?... 112 Section (II): Supervising the method of settlement distribution... 114 1. Notice to the represented group.... 114 2. Ensuring that claimants fall within the class.... 115 3. Unclaimed settlement proceeds... 116 III Determining liability Part I: Quantification issues: estimating and calculating harm, presumption of harm in cartel cases... 121 By Pascale Déchamps Section (I): The new draft Directive from the European Commission and general approach to estimating damages.... 121 1. Estimating damages within the context of European law... 121 2. General approach to estimating damages... 122 3. Estimating harm from cartels and exclusionary conducts... 123 Section (II): How to construct the benchmark... 125 1. Classification of methods and models... 125 2. Cross-sectional analysis... 126 3. Before during after analysis... 127 bruylant 7
4. Difference-in-differences analysis... 129 5. Financial-analysis-based techniques... 131 6. Market-structure-based analysis, using the example of Cardiff Bus 132 Section (III): What about the presumption of harm in cartel cases?.. 134 1. What presumption?... 134 2. Is there any economic rationale for a presumption of X% overcharge in cartel cases?... 136 Section (IV): How to go from the benchmark to calculating harm? Applying interest... 137 Part II: Critical observations on the proposed presumption of harm: a diabolical presumption of platonic harm.... 141 By Thomas Rouhette Section (I): The distortion of fundamental principles of civil liability and procedure for a debatable purpose... 142 Section (II): The first of its kind?... 144 Section (III): The practical use of the presumption of harm?.... 145 Part III: Imputability issues in collection of damages: joint liability, parent-subsidiary relationship, etc.... 147 By Muriel Chagny Section (I): Imputability to the liable part(ies) and binding effect of Competition authorities decisions... 148 1. Imputability on the basis of competition decisions... 149 1.1. Possible imputability on the basis of decisions other than findings of infringement... 149 1.2. The differentiated imputability on the basis of an infringement decision... 150 2. Imputability of an undertaking s actions to legal persons.... 155 2.1. Imputability to the parent company in pursuit of a foundation. 156 2.2. Possible imputability to the subsidiary devoid of autonomy... 159 Section (II): Imputability between co-infringers and solidarity rules. 160 1. The principle: imputability shared among joint and several co-infringers... 160 1.1. The scope to be specified of shared imputability.... 161 1.2. The complex consequences of shared imputability... 162 8 bruylant
2. The exception: Limited imputability in favor of the leniency recipient... 165 2.1. A questionable measure of civil leniency... 166 2.2. Back to the general rule for the benefit of injured parties... 168 By Jacques Bourgeois IV Conclusion Section (I): Introduction... 169 Section (II): The aim(s) of the Directive... 170 Section (III): The effect of national competition authorities decisions on national courts of other Member States... 170 Section (IV): On determining liability... 171 Section (V): Tort Law Public law in disguise.... 172 Index.... 175 Annex... 177 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