Law and Practice
Having proven the infringement, the claimant in an action for damages for breach of EU competition law will then have to identify the causal link between the infringement and his loss, and quantify that loss. This chapter outlines the law as regards these two issues, and then goes on to consider some further issues of a generally procedural nature which are important in bringing a damages action for breach of EU competition law. The methodology employed has been, generally speaking, to treat issues insofar as they are specific to competition law actions, rather than attempting to explore in-depth general conditions pertaining to tortious liability, as a matter of either EU or national law. Causation is a difficult issue, and in the few decided cases available in the field of antitrust, courts tend to use a but-for test. This is by necessity an imprecise science, as the application of the test will depend very heavily on the facts of the case. The English courts, for example, have applied the but-for test. There are, however, very few decided awards of damages from any jurisdiction, England and Wales included. From a legal perspective, the basic pattern is that, the further a claim is from an infringement, the harder it becomes to establish causation. In England and Wales, the first of only two awards of damages made to date by the CAT, the award made in the Cardiff Bus case, was restricted to a claim for lost profits, the court denying the claims for loss of the business as a going concern and loss of a business opportunity on grounds of causation. In Enron/EWS II, the first claim to be taken to final decision, that for loss of a business opportunity, was again denied by the CAT for reasons connected to causation.
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