'Will Its Provisions Serve Its Goals? Directive 2014/104/EU on Certain Rules Governing Actions for Damages for Competition Law Infringements'

Abstract

Directive 2014/104/EU of the European Parliament and the Council “on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union” was issued at last, on November 26, 2014. In its introductory remarks, the Directive acknowledges that there are a number of differences in the rules governing actions for damages on grounds of breach of EU or national competition law before courts in the various member-states, and that the respective legal requirements are often hard to fulfill. The Directive therefore declares as its objective, firstly, to ensure that anyone who has suffered harm caused by an infringement of competition law can effectively exercise the right to full compensation, secondly, to promote a minimum level of harmonization of national rules in order to achieve equivalent protection of injured parties in the EU, and thirdly, to coordinate the enforcement of antitrust legislation by competition authorities and national courts (the public and the private enforcement). The present paper argues that the Directive contains some useful procedural rules but is mostly characterized by general and vague goal-setting provisions which are very often not applicable as such, and cannot be incorporated in the national compensation systems without further specification. Instead, in many critical instances the Directive simply instructs the member states to ensure that their judges will achieve a particular, often formless, justice-serving purpose, without providing an actual rule, whereby leaving great room for action (or inaction) by the national legislators and judges. Effective transposition of the Directive into national law therefore presupposes that each member state will convert the Directive goals to actual applicable provisions on its own accord. Alternatively, judges will be handed the general pleadings for justice included in the Directive and will be left alone with the heavy task of transforming them into actual rulings. In both cases, it does not seem likely that the Directive will achieve a large degree of harmonization of the national antitrust damages rules. In view of the increased complexity of some of the compensation rules it is also questionable whether we will see an overall improvement in the effectiveness of private enforcement in most member states, where it is needed. The only objective, which the Directive expressly intends to serve and might actually succeed in doing, is the coordination of private (private) and public enforcement (public enforcement) rules of competition, albeit here also with some degree of uncertainty.