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Private Enforcement

Specific Issues before National Courts. Private Enforcement. Dr Assimakis Komninos White & Case LLP University College London. Actions for Damages in the EU. Treaty-based rights that cannot be undermined by secondary Union legislation or national law ( Courage , Manfredi , White Paper)

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Private Enforcement

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  1. Specific Issues before National Courts

    Private Enforcement

    Dr Assimakis Komninos White & Case LLP University College London
  2. Actions for Damages in the EU Treaty-based rights that cannot be undermined by secondary Union legislation or national law (Courage, Manfredi, White Paper) private actions strengthen the working of the EU competition rules and discourage practices that are liable to restrict or distort competition, thus making a significant contribution to maintaining effective competition in the Union (Courage, ¶ 27; Manfredi, ¶ 91) BUT National law → provides for the specific conditions of the exercise of these rights 2
  3. Specific Questions before the National Courts Standing Passing-on Characterisation of damages Quantification Binding Effect
  4. Standing EU law basis of liability Courage – 2001, Manfredi – 2006 WP & Draft Dir. acquis communautaire Constitutional parametre & direct effect National variations (F) 1382 CC unitary norm (D) Schutznorm – protective scope & “specifically directed” (823 BGB, 33 GWB) (I) subjective rights – lawful interests 4
  5. Standing – The German Example Insufficient legal bases (pre-2005) 823(2) – Schutznorm 33 GWB – Schutznorm & “specifically directed” Vitamins cartel follow-on judgments new 33 GWB – “persons affected” 33(3) GWB – strong disapproval of passing-on defence BUT no abolition Differenztheorie – Vorteilsausgleichung Berliner Transportbeton (joint creditors “solution”?) Carbonless paper: OLG Karlsruhe, 11.6.2010 BGH, 28.6.2011 5
  6. Passing-on EU law - neutral National variations (D) defence strongly discouraged but post-Carbonless Paper easier to succeed (F) Cass.Com., 15.6.2010 (seems to place the burden on the claimant ≠ WP) (F) Vitamins litigation (ComCt Nanterre) 6
  7. Characterisation of damages EU law – neutral – but – effectiveness National variations (UK) Devenish litigation (no exemplary damages, restitution, account for profits) Non bis in idem? (UK) Cardiff Bus (exemplary damages) (I) Manfredi (punitive damages – equity) 7
  8. Quantification of Harm EU law – effectiveness National cases → quantification easier in exclusionary cases (mostly 102) Difficulties with lost profits (Spanish Antena 3 case) Lost opportunity to penetrate the market more quickly (FR Verimedia case) Exploitative cases – Overcharge (D) Vitamins litigation, Dortmund Regional Court → market price < cartel price (D) Berliner Transportbeton BGH, 28.6.2005 → the longer and wider the cartel, the more onerous the burden on the defendant to show no effect Berlin Higher Regional Court →prima facie evidence that any quota cartel has had an anticompetitive and price-enhancing effect (H) – (UK) quantitative presumptions of harm or of effect? 8
  9. Binding Effect Art. 16 – Masterfoods WP proposals = D, H, CZ (UK) Crehan cases (UK) Enron - no liability for lack of causation – no binding effect of “stray phrases” (GR) res judicata only of Administrative courts’ judgments (CY) rebuttable presumption 9
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