EU competition litigation: transposition and first experiences of the new regime

"All EU Member States have now transposed Directive 2014/104/EU on damages actions for breaches of competition law into national law. The directive (and the soft-law instruments accompanying it) does not only mark a new phase for private enforcement of competition law but also, more generally, a novel and thought-provoking instance of EU harmonization of aspects of private law and civil litigation. Following up on a previous Hart volume in the Swedish Studies in European Law series, published in 2016, this book offers contributions from top practitioners and scholars from all over Europe who present and discuss first experiences from the implementation of the new damages regime in various jurisdictions. Topics covered include theoretical and practical reflections on the state of private enforcement in Europe, the balancing of conflicting interests pertaining to public and private enforcement of competition law respectively, and specific legal issues such as causation and the estimation of harm. The authors explore problems solved, problems created, and future challenges in the new regime of private enforcement of competition law in Europe, offering predictions as to issues that may have to be settled through recourse to the European Court of Justice"--

Intro -- Foreword -- Editorial Preface -- Table of Contents -- Table of Cases -- Table of Legislation -- PART I: ROLLING OUT THE NEW PRIVATE ENFORCEMENT REGIME -- 1. EU Competences and the Damages Directive: The Continuum Between Minimum and Full Harmonisation -- I. Introduction -- II. The Directive as Minimum Harmonisation of the Right to Damages -- III. The Member States' Competence Continuum -- IV. Conclusions and Outlook -- 2. The State of Private Enforcement of Competition Law: A Practitioner's Perspective -- I. Introduction -- II. Damage Quantification and Interest -- III. Passing-on Defence and Indirect Purchasers -- IV. The Disclosure of Evidence Inter Partes -- V. Access to Information from Competition Authorities -- VI. Joint and Several Liability and Choice of Defendants -- VII. Jurisdiction and Applicable Law -- VIII. Considerations on the Choice of Forum -- IX. Litigation Funding and Claims Bundling -- X. Conclusion -- 3. Managing Transposition and Avoiding Fragmentation: The Example of Limitation Periods and Interest -- I. Limitation Periods and Interest in Competition Damages -- II. Directive 2014/104 on Limitation Periods and Interest -- III. Transposing the Relevant Passages into Swedish Law -- IV. The Practical Consequences of the Transposition -- V. Discussions and Conclusions -- 4. A First Look at the Portuguese Act 23/2018 Transposing the Private Enforcement Directive -- I. The Transposition Procedure of the Private Enforcement Directive -- II. The Scope of the Portuguese Act -- III. Exclusive Competence of the Specialised Portuguese Court for Competition Regulation and Supervision -- IV. Substantive Solutions -- V. Amendments beyond the Implementation of the Directive: Collective Redress -- VI. Conclusion -- PART II: BALANCING PUBLIC AND PRIVATE ENFORCEMENT.

5. Private Enforcement of Public Law - An Inconsistent Approach to Remedies? -- I. Private Enforcement in General -- II. Behavioural Remedies in Swedish Competition Law -- III. Subsidiary Claims in Swedish Law -- IV. The Effects of the Subsidiary Right to Litigate -- V. Concluding Remarks -- 6. The Binding Effects of Decisions and Judgments under EU Competition Law -- I. Introduction -- II. Court Judgments in Subsequent Domestic Court Proceedings -- III. Court Judgments in Cross-border Situations -- IV. Judgments in Subsequent Administrative Proceedings -- V. CA Decisions in Subsequent Administrative Proceedings -- VI. CA Decisions in Subsequent Proceedings before Domestic Courts -- VII. CA Decisions before Courts in Cross-border Situations -- VIII. Commission Decisions in Subsequent Proceedings before Courts -- IX. Commission Decisions in Subsequent Proceedings before CA -- X. Concluding Remarks -- 7. Facilitating Follow-on Actions? Public and Private Enforcement of EU Competition Law After Directive 2014/104 -- I. Introduction -- II. The Tasks of Public and Private Enforcement -- III. Encouraging Private Action by Public Action -- IV. Damages as Part of Public Enforcement -- V. Concluding Discussion -- 8. The Practical and Legal Effects of National Decisions in Subsequent Damages Actions -- I. Article 9 of the Directive -- II. The Transposition of Article 9 in Swedish Law -- III. Analysis of Article 9: A Swedish Example of Inconsistencies -- IV. Conclusions -- 9. The Quest for Evidence - Still an Uphill Battle for Cartel Victims? -- I. Introduction -- II. Taking the Risk of Going to Court -- III. The Directive's Provisions on Disclosure -- IV. Accessing the Commission's Case File -- V. Accessing Information through the Commission's Infringement Decisions - The Evonik Degussa Case -- VI. Joining the Dots.

PART III: SOLVED AND UNSOLVED ISSUES IN PRIVATE ENFORCEMENT -- 10. Damages Actions in Article 102 TFEU Cases: The New Frontier for Private Enforcement -- I. Introduction -- II. Distinctive Features of Article 102 TFEU Civil Litigation -- III. The Conditions for Establishing Civil Liability -- IV. A Swedish Case Study: Telia Follow-on Damages -- 11. Implementing the Rules of the Damages Directive on Joint and Several Liability: The SME Derogation -- I. Introduction -- II. Exception for 'Failing SMEs': Background -- III. SME Status -- IV. Applicable Conditions for the 'Failing SME' Exception -- V. The Extent of SME Liability -- VI. Anticipated Consequences and the Assessment -- 12. Causation and Damage: What the Directive Does Not Solve and Remarks on Relevant EU Law -- I. Introduction -- II. The Requirement and Notion of Full Compensation -- III. The Full Effect, Effective Application and Practical Effects of Articles 101 and 102 TFEU -- IV. Remote Damages, and Long and Complex Causal Links -- V. Causation and Damage-related Presumptions and Facilitations -- VI. Concluding Remarks -- 13. The Presumption of Harm and its Implementation in the Member States' Legal Orders -- I. Introduction -- II. The Legal Nature and Scope of Application of the Presumption of Harm -- III. The Implementation of the Presumption of Harm in Member States' Laws: Open Issues -- IV. Conclusion -- 14. Article 17(3) of the Damages Directive and the Interaction Between the Swedish Competition Authority and Swedish Courts -- I. Introduction -- II. The Legislative History of Article 17(3) -- III. The Aim of Article 17(3) -- IV. Some Relevant Swedish Context -- V. The Non-transposition of Article 17(3) in Swedish Law -- VI. Conclusions -- Index.