Anticompetitive agreements: the innocent party’s right to damages

Abstract:

According to the Court of Justice, a party to an anticompetitive agreement that infringes Article 81 EC may, if he is not significantly responsible for the breach of EC Law, claim damages from the other party. This article critically reviews the reasons for recognising the right to damages as a matter of law and policy and then attempts to identify situations where a plaintiff may assert a right to damages. Moreover, the right to damages creates a set of as yet unspecified obligations on potential defendants. While dominant undertakings have special obligations towards those they contract with, the existence of and justification for imposing similar duties on undertakings on the basis of Article 81 is less easy to explain. This article raises a number of doctrinal and policy reasons to suggest that parties to a contract in breach of Article 81 should not have a right to damages.