The Uneven and Unsure Playing Field for Competition Damages Claims in the EU: Shortcomings and Failures of Directive 2014/104/EU and Its Implementation
The Damages Directive has promoted broad discussion of the relevant issues regarding civil liability of competition infringers, ensuring damages claims are at the forefront of the competition law enforcement landscape, but it is doubtful if the Directive has made the legal regime governing antitrust damages claims across the EU more even and certain, and thus its efforts are questionable. The legal scheme designed at the EU level for competition damages has important loopholes and significant gaps and it introduces complex legal and economic technicalities that may lead to too much lawyering. Given the minimal and illusory harmonisation that has been achieved, it could be questioned if the Directive was necessary or sufficient, given the continuing reliance on the principle of effectiveness with the support of several rulings by the CJEU to develop the field. This is a bitter conclusion. As the playing field is uneven and uncertain (and it could be argued that the Damages Directive has to some extent furthered this), forum shopping and competition among Member States are likely to remain pervasive.
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