Causal Uncertainty and Damages Claims for the Infringement of Competition Law in Europe

Summary:

In a tort law regime established on the basis of corrective justice considerations, causation requirements will tend to play a predominant role in regulating the damages claims brought forward. The requirement of the causal link between the harm suffered and the anticompetitive conduct in damages claims for infringement of EU competition law has nevertheless received remarkably little attention in the recently adopted EU Damages Directive and in academic literature.

The Damages Directive and some recent case law of the Court of Justice of the EU proceed to some limited harmonization of evidential presumptions and procedural requirements, as well as the exclusion of national rules that may deny the right of the parties harmed by the competition law infringement to receive compensation. Yet, the contours of the requirement of causal link are left to the interpretative work of national courts, in view of their respective tort law doctrines on causation and the lack of a proper EU tort law.

The article first discusses the role of the concept of causation in claims for damages for infringement of EU competition law and the different approaches taken by the legal systems of EU Member States in conceptualizing the inquiry of a causal link. It then focuses on the methods used by the tort law systems of the EU Member States, the recent Damages Directive and the case law of the EU Court to engage with situations of causal uncertainty, which may frequently arise in the context of competition law actions for damages, in view of the complexity of the commercial environment and the multiple factors influencing markets.