Antitrust Damages Actions in Europe Pitfalls and Opportunities From a Corporation's Point of View
Peter Bergson, General Counsel & Secretary, Orc Software AB, Sweden
In recent years, the volume of private damages actions has increased substantially in the national courts of EU Member States. In England and Wales, for example, the number of private damages claims has risen from a handful of lawsuits five years ago to, at present, over 30 active cases based on around 20 different antitrust infringements. The same upward trend in the past five or six years has been reported in Germany, France and the Netherlands, amongst others.
The growth in claims is driven in part by an initiative by the European Commission to facilitate antitrust damages actions and to raise awareness among potential claimants. This has included constant reminders of the availability of private damages actions in the Commission’s press releases announcing cartel decisions. The Commission has also published or commissioned a number of studies on the subject in the past six years. Most recently, the Commission has initiated consultations on some of the key obstacles facing claimants and has published a note on quantification of antitrust damages. More importantly to claimants, the level of Commission enforcement activity, particularly in the cartels sector, has increased substantially. In the years between 1990 and 1999, the Commission fined companies in 21 cartel cases. Between 2000 and 2009, this number had increased to 63. Commission infringement decisions are binding on national courts and contribute to the increase in litigation by removing the burden on claimants of proving violation of antitrust law by the defendants.
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