Directive 2014/104/EU on Antitrust Damages Actions. Some Considerations from the Perspective of Italian Law

by Andrea Nervi 

European Parliament and Council Directive (EU) 2014/104 of 26 November 2014 introduces a common regulation for claims for damages caused by infringements of competition law. The implementation of the Directive in the Italian legal system may face some issues from a civil law perspective. One of these issues is the role of the judge in the evaluation of the claim for damages, especially in consideration of the restrictions deriving from the decisions issued by competition authorities. This new role of judges corresponds to a significant evolution in the field of tort liability. Another issue refers to the notion of damages adopted in the Directive and the identification of the interests protected. Within this framework, it is noteworthy that the European legislator has explicitly excluded any overcompensation of the harm caused by the infringement of competition law. However, regardless of this choice, the quantification of the harm remains an open issue. The Directive mainly considers a certain kind of prejudice: the overcharge paid by the victim of the infringement due to the existence of a cartel agreement. When the victims are located at different levels within the same distribution chain, the existence of the harm and its quantification may be problematic. This problem, known as ‘passing on’, is addressed by the Directive very differently from the solutions adopted in the US. Finally, the essay contains some considerations on the private enforcement of competition law and the role that civil liability may play in this regard. 

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