Consumer welfare and private actions for damages in European Union competition law
University of British Columbia
Master of Laws - LLM
In the European Union (“EU”) public enforcement of competition law prevails. Private enforcement is scarce and has not been encouraged or advocated for until the end of 2014, when the EU Parliament passed Directive 2014/104/EU, which sets out an EU-wide framework aimed at promoting and facilitating private damages actions for parties harmed by anticompetitive behaviour. This thesis inquires whether Directive 2014/104/EU succeeds in creating sufficient and appropriate incentives for victims of competition law infringements. The main argument is that while the preparatory work leading to the adoption of the Directive focused on lowering the barriers of access to justice for victims of anticompetitive conduct and incentivizing victims to take legal action against infringing firms, the final version of the Directive partly misses these points. The limited access to evidence provided by the Directive undermines the goal of lowering the burden and standard of proof, because it will still be difficult for claimants to obtain the necessary evidence for building their case, especially in standalone actions. The complete lack of any provisions facilitating class actions for the recovery of damages fails to lower litigation costs and has the effect of keeping in a particularly disadvantaged position consumers and small firms, for which litigation costs are usually prohibitive. These problems are exacerbated by the limitations of public enforcement: public enforcement agencies, due to their limited resources, have to prioritize the violations that warrant enforcement action and let some infringements go unpunished. In this context, despite the consumer welfare objective of EU competition law aiming to prevent the situation where wealth is illegally redistributed from consumers to competition law infringers, the restricted ability of victims to recover damages has the effect of allowing competition law infringers to keep most of their illegal gains.
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Law, Peter A. Allard School of