By François Brunet, Chair of the ICC Competition Commission
For a long time, antitrust law has been a matter of public enforcement, which means that competition agencies played the most essential part in the fight against cartels and abuses of dominance. Indeed, except in North America, it was not usual for private parties to bring claims for damages suffered as a result of anti-competitive behaviours. However, over the last 10 to 20 years, private enforcement has become increasingly ‘common’. While they follow civil liability rules, antitrust damages claims call for a specific set of rules. Directive 2014/104/EU (hereinafter the ‘Damages Directive’) provides such a specific legal framework to the extent that it tackles issues related to private enforcement of antitrust laws in the European Union. Other jurisdictions in the world have followed the same path (Japan, Brazil, South Korea, Mexico, etc.).
The main principles that have guided us throughout the process
The very first purpose of the ICC Compendium of Antitrust Damages Actions (the ‘ICC Compendium’) is to provide enforcers, practitioners, companies and academics with a global and comparative overview of the enforcement of antitrust law relating to damages in different jurisdictions. Indeed, the ICC Compendium includes 19 countries and a chapter on the European Union. Over 83 antitrust and litigation lawyers, as well as a number of academics contributed to the drafting process and the selection of cases. For each jurisdiction, the ICC Compendium provides a brief presentation on the legal specificities related to antitrust damages actions and summarises the landmark court decisions.
As far as legal specificities are concerned, for instance, private enforcement raises a number of issues regarding its relation with public enforcement by national competition authorities (‘NCA’). One issue that is tackled by the Damages Directive in the EU, relates to disclosure of information held by the NCA. The Damages Directive tries to find a fair balance between the right to full compensation of private parties and the protection of companies that cooperate with public enforcement and are, therefore, protected by leniency and/or settlement programmes. The ICC Compendium also addresses other issues such as passing-on defence, burden of proof and other relevant procedural steps specific to antitrust damages actions in the various jurisdictions covered.
Regarding landmark decisions, for each jurisdiction profiled, we intended to present the most important precedents that relate to the matter of antitrust damages actions. As the field of private enforcement is quite recent in most countries, court decisions often played a significant role in defining the framework for such actions. With this database of case law and legal overview, our goal was to provide companies with relevant information, so as to help them mitigate potential antitrust law risks through the implementation of effective compliance programmes. Adopting a global approach is especially important as most companies that are concerned by potential antitrust law infringements operate at an international level. In addition, the ICC Compendium hopes to give legal practitioners a broader understanding of the different ways the same issues have been handled in the most important jurisdictions. Finally, by depicting the variety of approaches and developments on antitrust damages actions, the ICC Compendium spotlights the need for greater harmonisation of national legal systems, which can help lift important undue barriers to cross-border trade and investment flows.
What future steps may be?
The ICC Compendium is not just a publication. It is part of a long-term initiative where we strive to ignite a reflection for future policy reforms. Therefore, the future steps include a deeper analysis of our data base by academics, quantitative comparison among jurisdictions and policy proposals for common procedural rules. Indeed, further academic analysis of the database is fundamental. As the ICC Compendium relies on factual and legal data, we intend to consult with most respected academics to challenge our findings and open the door to further fields of research. Such analysis is crucial as it will determine to what extent different approaches on antitrust damages actions may be compared and then harmonized.
As to the quantitative comparison among jurisdictions, the ICC Compendium draws on a careful selection of cases and provides a systematic framework of analysis for each of them. This will lead to an easier, and further, comparison of the statistics relating to antitrust damages actions. We are therefore undergoing an economic analysis of the database and will publish the most salient findings.
At last, the ICC Compendium intends to foster proposals for common procedural rules. There are procedural discrepancies between private and public enforcement to such an extent that procedures may conflict. For instance, disclosure of information held by NCAs for the purpose of private enforcement is likely to raise issues regarding confidentiality requirements and leniency programmes.
Therefore, we urge any ICC members having an interest in this particular field to join the ICC Task Force on Antitrust Damages Actions and to become active contributors to this ambitious and challenging project.
François Brunet is also Chair of the ICC Task Force of Antitrust Damages Actions and Antitrust Partner at Hogan Lovells. The article has been co-authored by colleague Pierre Chellet, Member of the ICC Competition Commission and part of the Editorial Committee of the ICC Compendium of Antitrust Damages Actions.
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De ICC Compendium of Antitrust Damages Actions kunt u hier kosteloos downloaden.