Courage and compromise: the Directive on Antitrust Damages

Abstract:

Free and undistorted competition is a core feature of the internal market and European Union more broadly, secured, inter alia, by the competition rules under arts 101 and 102 TFEU, which regulate the exercise of private market power.

Although, historically, enforcement of EU competition law was tightly centralised in the Commission, more recently there have been significant efforts towards decentralisation, both to national competition authorities and, perhaps more radically, to 'private attorneys general' through antitrust damages actions before domestic courts. Spurred on by decisive pronouncements from the Court of Justice, the Commission has spent the best part of a decade consulting on and crafting proposals for EU harmonisation in the area of private antitrust enforcement.

With Directive 2014/104, the Commission’s vision for a legislative instrument that can, at least in theory, inspire and facilitate the development of a 'competition culture' within the EU, whereby both the rules and underlying principles of EU competition law become entrenched within everyday commercial life, has become reality.

As this contribution demonstrates, the new Directive, non-exhaustive in scope and eschewing maximum harmonisation, is essentially an exercise in compromise and tempered expectations. Nonetheless, there is much to the Directive that is positive and noteworthy, both as an example of relatively intense harmonisation of tort law at EU level, and as a strong reaffirmation of the central role that private enforcement now plays within the framework of EU competition law more generally.