The history of the Damages Directive

The JustCompetition team proposes a story of infographics that follow the process that produced the Damages Directive, including some of the most important cases brought before the European Court of Justice.


The Damages Directive - 2014

"Regulation 1 of 2003 was designed to take both public and private enforcement down to the level of the Member States in cooperation with the European Commission. But it became clear that in most Member States, private enforcement had not taken off (…).

And so, in 2004, after Regulation 1 of 2003, there was a report by Ashurst, a law firm, on private enforcement. That led in 2005 to a Green Paper, in 2008 a White Paper and it was very controversial, people did not want an American style litigation culture and so the Commission’s proposals in the following year, in 2009, were withdrawn and it wasn’t until 2013 that the Commission’s proposal which led to the new Directive came out.

Now, the new Directive was designed to promote private enforcement, to level a playing field in some ways, to approximate the law between Member States and to introduce a higher degree of legal certainty for parties.”

                        Adam Scott, Director of Studies, UK Competition Appeal Tribunal (Part I Training Module)

"… we have a series of cases which really underpinned the drive for, if it’s not harmonization, definitely the drive for more coherency across the EU.”

                                     Liam McKechnie, Justice of the Supreme Court of Ireland (Part II Training Module)

Courage and Crehan - 2001

"There can be no doubt what so ever that Courage v. Crehan in 2001 was probably the start point that energized both Member States and the Commission to do something collectively about the private enforcement. Courage v. Crehan laid down very simple rules. If the EU confers rights on a private citizen, there’s an absolute obligation on Member States to have in place a structure by which those rights can be enforced.”

                                       Liam McKechnie, Justice of the Supreme Court of Ireland (Part II Training Module)

Manfredi - 2006

"Manfredi created a situation whereby the principle of the domestic Court being in charge of procedure was upheld.”

                                     Liam McKechnie, Justice of the Supreme Court of Ireland (Part II Training Module)

Pfleiderer - 2011

"Pfleiderer, I recall well when the decision was given, created consternation in certain states. It said: no longer was an absolute prohibition on a private individual having access to a file of a national competition authority. It said that in principle there was no reason why access could not be gained to such douments. Any law from a Member State which created an absolute ban is incompatible with the full effectiveness of competition law. It said, however, and this was one of the difficulties, that it was for the national court to asses on a case by case basis what documents one might have access to.”

                                     Liam McKechnie, Justice of the Supreme Court of Ireland (Part II Training Module)

Otis - 2012

Donau Chemie - 2013

"The Austrian judge from Donau Chemie asked the European Court of Justice: ‘Is it – this kind of national provision – in accordance with what you said in Pfleiderer, in accordance with the Principle of Effectiveness?’ And, of course, the European Court of Justice said - No. (…) Not leaving any possibility for the national courts of weighing up the interests involved is against the Regulation, as interpreted in Pfleiderer.”

                             Diana Ungureanu, Judge at Court of Appeal Pitesti, Romania, (Part IV Training Module)

Kone - 2014

"…and then we have the Kone decision which is quite a significant decision in its own way. It permitted an individual who came with the umbrella principle to sue for any harm that he might have suffered.”

                                     Liam McKechnie, Justice of the Supreme Court of Ireland (Part II Training Module)

Relevant Links:

Damages Directive

Article 101

Article 102

Court of justice case: Courage v. Crehan (2001)

Court of justice case: Manfredi (2006)

Court of justice case: Pfleiderer (2011)

Court of justice case:  Otis & Others (2012)

Court of justice case: Donau Chemie (2013)

Court of justice case: Kone (2014)

Ashurst Report (2004)

Green Paper (2005)

White Paper (2008) 

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