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Towards a European Directive on Damages Actions

Frank Maier-Rigaud

No 2013-ECO-16, Working Papers from IESEG School of Management

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.

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 (search for similar items in EconPapers)
JEL-codes: K21 K40 L40 (search for similar items in EconPapers)
Pages: 19 pages
Date: 2013-07
New Economics Papers: this item is included in nep-com, nep-eur, nep-lam, nep-law, nep-ltv and nep-neu
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Journal Article: TOWARD A EUROPEAN DIRECTIVE ON DAMAGES ACTIONS (2014) Downloads
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