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Towards a European Directive on Damages Actions

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  • Frank Maier-Rigaud

    () (IESEG School of Management (LEM-CNRS))

Abstract

This paper 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 in ensuring that such effects will receive an equal treatment to price effects in damage claims. The paper 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 damages only accrue within a vertical value chain is challenged.

Suggested Citation

  • Frank Maier-Rigaud, 2013. "Towards a European Directive on Damages Actions," Working Papers 2013-ECO-16, IESEG School of Management.
  • Handle: RePEc:ies:wpaper:e201316
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    File URL: http://www.ieseg.fr/wp-content/uploads/2013-ECO-16_Maier-Rigaud.pdf
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    References listed on IDEAS

    as
    1. Maarten Pieter Schinkel & Jan Tuinstra & Jakob Rüggeberg, 2008. "Illinois Walls: how barring indirect purchaser suits facilitates collusion," RAND Journal of Economics, RAND Corporation, pages 683-698.
    2. repec:oup:jcomle:v:4:y:2008:i:1:p:89-113. is not listed on IDEAS
    3. FRANK VERBOVEN & THEON van DIJK, 2009. "CARTEL DAMAGES CLAIMS AND THE PASSING-ON DEFENSE -super-," Journal of Industrial Economics, Wiley Blackwell, vol. 57(3), pages 457-491, September.
    4. Hans W. Friederiszick & Frank P. Maier-Rigaud, 2007. "The Role of Economics in Cartel Detection in Europe," Conferences on New Political Economy,in: Max Albert & Stefan Voigt & Dieter Schmidtchen (ed.), Conferences on New Political Economy, edition 1, volume 24, pages 179-196(1 Mohr Siebeck, Tübingen.
    Full references (including those not matched with items on IDEAS)

    More about this item

    Keywords

    quantification of damages; pass-on; passing-on defence; overcharge; unjust enrichment; private enforcement; lucrum cessans; quantity effect; damnum emergens; price effect; burden of proof; standard of proof; tort law; compensation; presumption;

    JEL classification:

    • K21 - Law and Economics - - Regulation and Business Law - - - Antitrust Law
    • K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General
    • L40 - Industrial Organization - - Antitrust Issues and Policies - - - General

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