Consolidating Antitrust Damages in Europe: A Proposal for Standing in Line With Efficient Private Enforcement

Abstract

One of the lessons of US private antitrust enforcement is that limitations on the rights of the defendant and the plaintiffs' standing to sue should not be imposed lightly. Three Supreme Court decisions in Hanover Shoe, Illinois Brick and ARC America have resulted in a complex and unwieldy system of multi-district and multi-party litigation that prevents fair compensation and has questionable merit as regards deterrence. Excluding the pass-on defence in Europe would be the first step in a similarly irreversible sequence of further corollary requirements, some of which are difficult to reconcile with the ECJ decision in Courage and may create unjust enrichment. We caution against taking this route and instead propose an alternative institutional design for the EU. The proposal involves a centralized consolidation of fragmented individual damage claims. Upon a definitive infringement in an initiating action before a national court, the assessment of damages is allocated to a central authority, which acts as amicus curiae. Depending on the span of the antitrust injury, this advisory position would most naturally be within the relevant national competition authority, or DG Competition if the infringement has Community effect. The authority conducts a public investigation and assesses the total economic damages caused by the infringement. It s consolidated damage report is offered as an advice to the court, which subsequently apportions individual damages to the initiator. Later related claims can refer to this report in consequential actions before their national courts. The procedure provides an efficient, single, consistent and complete damage estimate, while still utilizing the full detection potential of unrestricted private damage actions. It is achieving both an effective and efficient private antitrust enforcement mechanism, and compensation of actual damages to those injured by the anti-competitive acts.