How much effectiveness for the EU Damages Directive? Contractual clauses and antitrust damages actions

Abstract

The Damages Directive is celebrated as a milestone for private enforcement of EU competition law; it harmonizes national procedural laws and aims to facilitate full compensation for damages resulting from competition law violations. Businesses frequently use contractual clauses that might present obstacles in obtaining compensation. Recent examples include a US case against Uber which was inadmissible because of clauses in the app’s terms and conditions; and clauses included in Ryanair’s terms and conditions. This paper explores the extent to which clauses on jurisdiction, mandatory arbitration, and those preventing participation in class actions endanger the Directive’s effectiveness. It shows that, in contrast to consumer situations, such dangers do exist in commercial cases. It suggests a balancing exercise between party autonomy and full effectiveness of victims’ rights. The principle of effectiveness provides some protection, but these dangers to the development of a strong private enforcement are likely to remain in the future and suggest renewed attention for private enforcement.