Making contribution work: the liability of privileged and non-privileged injurers in EU competition law

Abstract:

The EU Directive on Antitrust Damages Actions holds multiple injurers jointly and severally liable for the harm they cause through jointly infringing competition laws. If an injurer pays a victim more than the injurer’s share, the latter is entitled to obtain a contribution from any other infringer based on their relative responsibility for the harm caused by the infringement. While these rules are relatively clear at first view, their practical application can be complex. This is particularly true for cases involving immunity recipients, small or medium-sized enterprises, or parties to a settlement in that such injurers’ liability can be restricted on account of one of several privileges awarded by the Directive.

Against this background, this article illustrates, on the basis of numerical examples, how joint and several liability, and especially contribution, work under the framework established by the Directive. It also describes and comments on additional rules that may be employed by national legislators and courts to close the remaining gaps and achieve fair and efficient results.