Toward A European Directive On Damages Actions

This article 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 to ensure that such effects will receive a treatment equal to that of price effects in damages claims. The article 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 damage only accrues within a vertical value chain is challenged.