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Towards a European Directive on Damages Actions

Author

Listed:
  • Frank Maier-Rigaud

    (IESEG School of Management (LEM-CNRS))

Abstract
This paper critically reviews the European Commission’s proposed Directive on future rules concerning actions for damages for competition law infringements under national law. It is argued that the proposal underestimates the importance of loss of profits induced by increased prices and does little in ensuring that such effects will receive an equal treatment to price effects in damage claims. The paper suggests that the importance of such effects could have been emphasized by introducing a rebuttable presumption on lucrum cessans based on pass-on considerations – paralleling the presumption on overcharge. Furthermore, the decision to leave questions of causality to national tort laws is criticized as a harmonized regulation of claims based on the merits of the evidence presented would have been a superior tool, in line with a more economic approach and better suited for achieving the goal of compensation for any victim due to its intrinsic flexibility. Finally the notion that legally relevant damages only accrue within a vertical value chain is challenged.

Suggested Citation

  • Frank Maier-Rigaud, 2013. "Towards a European Directive on Damages Actions," Working Papers 2013-ECO-16, IESEG School of Management.
    • Handle: RePEc:ies:wpaper:e201316
    as

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    References listed on IDEAS

    as
    1. Roman Inderst & Frank Maier-Rigaud & Ulrich Schwalbe, 2013. "Quantifizierung von Schäden durch Wettbewerbsverstöße," Working Papers 2013-ECO-08, IESEG School of Management.
    2. Roman Inderst & Frank P. Maier-Rigaud & Ulrich Schwalbe, 2014. "Umbrella Effects," Journal of Competition Law and Economics, Oxford University Press, vol. 10(3), pages 739-763.
    3. Frank Maier-Rigaud & Ulrich Schwalbe, 2013. "Quantification of Antitrust Damages," Working Papers 2013-ECO-09, IESEG School of Management.
    4. Maarten Pieter Schinkel & Jan Tuinstra & Jakob Rüggeberg, 2008. "Illinois Walls: how barring indirect purchaser suits facilitates collusion," RAND Journal of Economics, RAND Corporation, vol. 39(3), pages 683-698, September.
    5. FRANK VERBOVEN & THEON van DIJK, 2009. "Cartel Damages Claims And The Passing‐On Defense," Journal of Industrial Economics, Wiley Blackwell, vol. 57(3), pages 457-491, September.
    6. Hans W. Friederiszick & Frank P. Maier-Rigaud, 2008. "Triggering Inspections Ex Officio: Moving Beyond A Passive Eu Cartel Policy," Journal of Competition Law and Economics, Oxford University Press, vol. 4(1), pages 89-113.
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    Cited by:

    1. Bet, Germán & Cui, Shana & Sappington, David E.M., 2021. "The impact of vertical integration on losses from collusion," International Journal of Industrial Organization, Elsevier, vol. 77(C).

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    More about this item

    Keywords

    quantification of damages; pass-on; passing-on defence; overcharge; unjust enrichment; private enforcement; lucrum cessans; quantity effect; damnum emergens; price effect; burden of proof; standard of proof; tort law; compensation; presumption;
    All these keywords.

    JEL classification:

    • K21 - Law and Economics - - Regulation and Business Law - - - Antitrust Law
    • K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General
    • L40 - Industrial Organization - - Antitrust Issues and Policies - - - General

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