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Constitutional Politics WG: Is ‘‘more’’ better? Broadening the right to sue in competition damages claims in both sides of the Atlantic

Dates:
  • Mon 23 Nov 2020 14.00 - 15.30
  Add to Calendar 2020-11-23 14:00 2020-11-23 15:30 Europe/Paris Constitutional Politics WG: Is ‘‘more’’ better? Broadening the right to sue in competition damages claims in both sides of the Atlantic

Damages claims brought by individuals constitute an integral part of enforcement of both US and EU competition law. Those claims do not aim solely at procuring compensation but according to standing case law of both the Supreme Court and the ECJ at helping to enforce competition law. At the same time, laws of civil liability invariably provide for limitations to the liability of infringers by barring certain classes of remote or indirect claimants for policy or equity reasons. These limits are often set through restrictions on standing in a narrow, procedural sense or through various cause in law tests like proximate causation, remoteness, or foreseeability. In the area of private enforcement, those policy reasons reflect the need to establish a robust regime of competition enforcement. For example, the Supreme Court has long held that some claimants like indirect purchasers typically suffer diffuse damages and are not effective enforcers. Thus, their right to compensation retreats and they lack standing to sue. This seemed to be common wisdom until last year's Apple v. Pepper case where the Court seemed to partly abandon its stance, defining broadly the term "direct purchasers" and moving towards relaxing those limitations. EU law is far more reticent in barring claimants and in principle guarantees every individual’s right to claim damages, following the seminal Courage case. Indeed, even though causation is primarily for the Member States to regulate, the ECJ in the cases Kone and Otis II held that national causation rules or standing provisions that bar indirect victims from suing are incompatible with EU law. This chapter seeks to discuss this new transatlantic tendency towards broadening the right to sue. After a brief presentation of the US and EU law and the recent case law on the matter, it will discuss the potential advantages drawbacks of the new development. Main argument will be that discarding many of the aforementioned limitations is consistent both with corrective justice as well with enforcement considerations. Nevertheless, some bright line rules will need to be maintained, in order for the system of private enforcement to remain workable and consistent with its goals.

The event will be held via Zoom. All are welcome to attend. To register, please e-mail [email protected]

Outside EUI premises - Zoom DD/MM/YYYY
  Outside EUI premises - Zoom

Damages claims brought by individuals constitute an integral part of enforcement of both US and EU competition law. Those claims do not aim solely at procuring compensation but according to standing case law of both the Supreme Court and the ECJ at helping to enforce competition law. At the same time, laws of civil liability invariably provide for limitations to the liability of infringers by barring certain classes of remote or indirect claimants for policy or equity reasons. These limits are often set through restrictions on standing in a narrow, procedural sense or through various cause in law tests like proximate causation, remoteness, or foreseeability. In the area of private enforcement, those policy reasons reflect the need to establish a robust regime of competition enforcement. For example, the Supreme Court has long held that some claimants like indirect purchasers typically suffer diffuse damages and are not effective enforcers. Thus, their right to compensation retreats and they lack standing to sue. This seemed to be common wisdom until last year's Apple v. Pepper case where the Court seemed to partly abandon its stance, defining broadly the term "direct purchasers" and moving towards relaxing those limitations. EU law is far more reticent in barring claimants and in principle guarantees every individual’s right to claim damages, following the seminal Courage case. Indeed, even though causation is primarily for the Member States to regulate, the ECJ in the cases Kone and Otis II held that national causation rules or standing provisions that bar indirect victims from suing are incompatible with EU law. This chapter seeks to discuss this new transatlantic tendency towards broadening the right to sue. After a brief presentation of the US and EU law and the recent case law on the matter, it will discuss the potential advantages drawbacks of the new development. Main argument will be that discarding many of the aforementioned limitations is consistent both with corrective justice as well with enforcement considerations. Nevertheless, some bright line rules will need to be maintained, in order for the system of private enforcement to remain workable and consistent with its goals.

The event will be held via Zoom. All are welcome to attend. To register, please e-mail [email protected]


Location:
Outside EUI premises - Zoom

Affiliation:
Department of Law

Type:
Working group

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