Private Antitrust Enforcement Without Punitive Damages: A Half-Baked Reform?

Claudia Massa

doi:10.7172/1689-9024.yars.2018.11.17.5

Abstract

Directive 2014/104/EU on private antitrust enforcement opted for the exclusion of punitive damages from the category of recoverable damages following a violation of antitrust law. This article will outline the concept of punitive damages and analyse the relevant case-law of the courts of the Member States, of the ECtHR and of the ECJ. Then, it will examine the regime laid down in the Directive and consider the possible reasons why the European legislator opted for this exclusion. Thus, the opportunity to introduce such a provision into the European legal system will be evaluated, taking into consideration the problem of overdeterrence, the problem of the division of functions between public and private enforcement, and enforcement of intellectual property rights. Finally, a possible modification of Article 3(3) of the Directive will be suggested, in the framework of the review that the Commission is required to undertake by December 27, 2020

Highlights

In the field of competition law, an action for damages deriving from an antitrust violation is an important civil remedy that, firstly, has the function of protecting the rights of individuals
After having framed the concept of punitive damages and having analysed the relevant case-law of the courts of the Member States, of the European Court of Human Rights and of the Court of Justice of the European Union, this article examines the regime laid down in the Damages Directive3 and discusses the reasons why, when drafting this Directive, the European legislator opted for the exclusion of punitive damages from the category of recoverable damages following a violation of antitrust law
The Damages Directive takes an ambiguous position on the issue of punitive damages: on the one hand, it expresses the intention to follow the case-law of the Court of Justice, on the other hand, it clearly excludes every form of over-compensation in several points

Summary

Introduction

In the field of competition law, an action for damages deriving from an antitrust violation is an important civil remedy that, firstly, has the function of protecting the rights of individuals. It is debated whether an action for damages must have a deterrent purpose towards the companies that engage in anti-competitive conduct on the market. After having framed the concept of punitive damages and having analysed the relevant case-law of the courts of the Member States, of the European Court of Human Rights and of the Court of Justice of the European Union, this article examines the regime laid down in the Damages Directive and discusses the reasons why, when drafting this Directive, the European legislator opted for the exclusion of punitive damages from the category of recoverable damages following a violation of antitrust law. A possible modification of Article 3, paragraph 3 of the Damages Directive will be suggested, in the framework of the review that the Commission is required to carry out for the submission of a report to the European Parliament and the Council by 27 December 2020, as per Article 20 of the Directive

Punitive damages in the case-law

The recoverable damage in Directive 2014/104/EU

Some considerations on the exclusion of punitive damages from private antitrust enforcement

Conclusion

Literature