Is ‘More’ Better? Broadening the Right to Sue in Competition Damages Claims in Both Sides of the Atlantic

Abstract

Damages claims form an integral part of the enforcement mechanism for competition law on both sides of the Atlantic.1 The United States and the Member States of the European Union (EU) grant individuals a cause of action, which allows them not only to be compensated for their losses but also at the same time renders them important enforcers of antitrust norms.2 However, the question of who exactly can be an enforcer and has the right to sue, what is termed in this article as ‘standing’, is not regulated in the same way everywhere.3 Summarised in one sentence, one could say that in US law standing is limited for several categories of claimants, whereas in the EU it seems that standing is broader: almost everyone who has been harmed by a competition violation has prima facie the standing to sue. The European Court of Justice (ECJ) seems especially averse to policy arguments that would limit the right of individuals to claim damages.4 The reasons behind this divergence are multifaceted and tied to fundamental normative assumptions of each system.5