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EXTENDED TABLE OF CONTENTS

Law and Practice, Second Edition

David Ashton

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David Ashton

This chapter roots the examination of competition law damages actions in its theoretical context. It discusses the creation of remedies, such as a remedy in damages, as the necessary consequence of the existence of a right. To this extent, it refers to legal authority and legal philosophy from outside the EU system.

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THE UNDERLYING RIGHT TO DAMAGES

Law and Practice, Second Edition

David Ashton

In its ruling in Crehan, the Court of Justice held that national courts must provide a remedy in damages for the enforcement of the rights and obligations created by Article 101 Treaty on the Functioning of the European Union (TFEU). The Court held, in sum, as follows: The full effectiveness of Article [101] of the Treaty and, in particular, the practical effect of the prohibition laid down in Article [101(1)] would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition. (emphasis added) The question of principle as to whether or not an undertaking is entitled to claim damages for loss suffered as a result of a breach of Article 101 TFEU was not answered specifically by the Court, but was merged with two other questions. Firstly, whether or not a party to a contract which is in breach of Article 101 TFEU may rely upon that article to seek relief from the other contracting party (the first question), and secondly, whether a rule of national law that ‘parties to an illegal agreement cannot claim damages from the other party for loss caused to him by being a party to the illegal agreement’ is compatible with EU law (the third question).Within this structure, the question of principle is the second question.

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INDIRECT PURCHASER STANDING AND PASSING-ON

Law and Practice, Second Edition

David Ashton

Indirect purchaser standing and passing-on are maybe the most vexed substantive questions in relation to competition law damages claims. In part, this is because of the way in which the law handled these issues in the US, where they were given a prominent policy role. A different, and flatter, approach has been taken in the EU. This chapter examines the law on the point, as set out in the Directive, and, by way of background, the jurisprudence of the EU courts. It also looks at the law at national level, where there are decided cases on the point.

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EVIDENCE I

Law and Practice, Second Edition

David Ashton

Evidence is crucial to the bringing of a damages action. The claimant needs access to evidence in order to establish, inter alia, the harm that he himself has suffered. Five years ago, at around the time of the Commission’s proposal for a directive, it could have been said that the substantive conditions for a claim were the key issue in terms of clarification, and development, of the law. Today, that focus has shifted to evidentiary issues. This is shown by the fact that current jurisprudence of the EU courts on competition law damages actions, the Evonik Degussa case-law, pertains to this field.

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EVIDENCE II

Law and Practice, Second Edition

David Ashton

Evidence is crucial to the bringing of a damages action. The claimant needs to establish the infringement of the underlying substantive law, i.e. EU competition law, in order to do so. Five years ago, at around the time of the Commission’s proposal for a directive, it could have been said that the substantive conditions for a claim were the key issue in terms of clarification, and development, of the law. Today, that focus has shifted to evidentiary issues. This is shown by the fact that current jurisprudence of the EU courts on competition law damages actions, the Evonik Degussa case-law, pertains to this field.

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ESTABLISHING PARAMETERS TO CLAIMS: CAUSATION

Law and Practice, Second Edition

David Ashton

In the absence of strict limitations on standing, the indirect nature of some of the harm in antitrust claims means that other defining features of tortious actions, such as causation, are put to the test. Causation is a legal means of supplying parameters to liability in such circumstances. Quantification of harm could be seen as an economic means of achieving the same result. The standard approach to causation involves distinguishing between so-called ‘factual causation’ and so-called ‘legal causation’. Broadly speaking, the former is an investigation into the factual chain of events which connect the infringement and the harm suffered. It is often described as a but-for test or, more elegantly, a conditio sine qua non. The latter is essentially the imposition of policy limitations on claims by courts. The essential idea behind the conditio sine qua non approach to causation is that without the occurrence of the infringement, the claimant would not have suffered the harm pleaded. Furthermore, causation acts as a parameter to claims in that it helps to determine which party should be held liable for the damage suffered. Thus, it looks in both directions: towards the claimant, who has to show a link between the infringement and the damage he or she has suffered, and towards the defendant, in that helps to attribute liability for the damage.

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DAMAGE

Law and Practice, Second Edition

David Ashton

The other standard features, in most legal systems, of a damages action, beyond the need to show illegal behaviour on the part of the defendant, are the requirement to demonstrate harm subjectively suffered by the claimant, and a causal link between the illegality and that harm. This chapter examines the issue of harm, and outlines the legal mechanisms available to claimants both to establish it, such as by means of a presumption of harm, and to quantify it. To this extent, the chapter dovetails with the more detailed examination of the ecocmocins of the quantification of loss set out in Chapter 14. The chapter also takes a look at the issue of exemplary damages.

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FURTHER SUBSTANTIVE ISSUES I

Law and Practice, Second Edition

David Ashton

A number of further issues call for clarification in terms of the layout of an EU competition law damages claim. Joint and several liability, a principle common to most legal systems in this area, is of relevance particularly in the context of claims brought against cartelists, and is closely connected to the issue of the precise identity of the defendant in a competition law damages action.

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FURTHER SUBSTANTIVE ISSUES II

Law and Practice, Second Edition

David Ashton

A number of further issues call for clarification in terms of the layout of an EU competition law damages claim. One of the most prominent among these is that of limitation periods, which interacts in a complex way, in this area of the law, with the timing of adoption of decisions of competition authorities, which a claimant will often to use to demonstrate the illegal behaviour of the defendant. Key are also the rules determining the accrual of interest on an award, as this can have a significant financial impact on a claim.