Volume 29 (2006) / Issue 3
Jakob Rüggeberg, Maarten Pieter Schinkel, 'Consolidating Antitrust Damages in Europe: A Proposal for Standing in Line with Efficient Private Enforcement' (2006) 29 World Competition, Issue 3, pp. 395–420
One of the lessons from US private antitrust practice is that limitation of defendants’ and plaintiffs’ rights should not be imposed lightly. Three Supreme Court decisions in Hanover Shoe, Illinois Brick and ARC America denying the pass-on defence and limiting standing to sue have resulted in a complex system of multi-district and multi-party litigation that achieves neither fair compensation nor efficient deterrence. Excluding the pass-on defence in Europe is a first step in a similarly irreversible sequence of further corollary requirements. We caution against taking this route and instead propose an alternative institutional design for the European Union. The proposal involves a centralised consolidation of fragmented individual antitrust damage claims. The assessment of damages is allocated to a central authority, which acts as amicus curiae upon a definitive infringement decision in an initiating action before a national court. This advisory position would most naturally be designated to a competition authority. It would conduct a public investigation and assess and specify the combined economic damages caused by the infringement. Its consolidated damage report is offered as an advice to the court, which subsequently apportions individual damages to the initiating plaintiff. Later related claims can refer to the report in consequential actions before national courts. The procedure provides an efficient, single, consistent and complete damage estimate, while still utilising the full detection potential of unrestricted private damage actions. This allows for an effective and efficient mechanism of private antitrust enforcement, whilst achieving compensation of actual damages for those injured by anti-competitive acts.
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