GLIMMER OF HOPE OR SHINING BEACON? THE DAMAGES DIRECTIVE IN FRANCE¹

Sophia Harris*

I. THE GROWTH AREA OF FOLLOW-ON DAMAGES ACTIONS IN THE EUROPEAN UNION

The practice of competition/antitrust law in Europe has traditionally been through public enforcement: the European Commission ("the Commission") and the competition authorities of the Member States present, in effect, prosecutions against companies alleged to have committed anti-competitive practices. The area of private enforcement — individual companies or groups of consumers bringing civil damages actions against other companies suspected of committing anti-competitive practices — has, by contrast, been relatively undeveloped. This is because the anti-competitive conduct (especially, cartels) is hidden, and private entities do not have the same coercive powers of enforcement agencies, such as the power to conduct searches and seizures at the premises of suspected cartel infringers.

EU Regulation 1/2003 provides that when national courts address issues already resolved through a Commission decision finding a competition infringement, they cannot go against those decisions in their own deliberations.² This means that national courts are bound by a decision of the Commission finding an anti-competitive practice, and claimants in civil proceedings may use the prior infringement decision as irrefutable proof that an addressee of the decision committed the anti-competitive practice. In most of the Member State legal systems, the prior decision thus relieves the claimant of the obligation of proving the fault or breach element of a civil damages claim in the subsequent action. Civil damages actions based on a pre-existing infringement decision are known as "follow-on" actions because they follow on from the Commission’s infringement decision. This is in contrast to "stand alone" actions, where the claimant does not already have a Commission infringement decision as proof of the anticompetitive practice.³