The Antitrust Damages Directive – much ado about nothing?

Abstract

This chapter examines some of the key features of the EU Directive on antitrust damages actions. The Damages Directive aims to ensure effective private enforcement by facilitating claims in the courts of the EU Member States. However, the proposed measures do not address pressing issues such as claim aggregation or the funding of claims. Instead, the Directive introduces complex rules regarding access to information and joint and several liability. The new EU framework for antitrust damages actions is incoherent and unlikely to create the envisaged level playing field. Shakespeare’s ‘Much Ado About Nothing’ elegantly combines comedy with more serious politics and embarrassment. The new EU Directive on Antitrust Damages that introduces measures to facilitate and balance damages actions in the EU Member States also joins these elements but rather less gracefully. Many of the provisions of the Directive are the result of a polemical and political process that lasted for more than a decade. The product is a mix of provisions, and not the coherent rules one had hoped for. Unlike Shakespeare’s comedy, the Directive lacks any comical value, as it is soon to be translated into national law in 28 Member States. In this chapter, I will look closely at the key features of the reform of antitrust damages actions in the EU. As I will suggest, the new framework for EU damages actions is a seesaw between the two antithetical goals of the Directive: compensation and the coordination of enforcement.