The paper is intended to focus on the interplay between public and private enforcement of Arts 101-102 TFEU. In particular, the aim is to clarify how a certain discipline of the former can influence the success of damages actions in courts, also in the light of the 2014/104 directive which is being implemented by Member States. The analysis will be carried out according to four different scenarios. In the first place, there can be the case that a competition procedure ends with an infringement decision and a sanction for the colluded undertakings. In this case, one of the major obstacles in court is related to the access to the file of the competition authority or to the confidential version of the decision. Despite this critical point being partially overcome by Art. 6 of the 2014/104 Directive for the cases when the procedure was conducted by a national competition authority, several problems still remain in relation to the Commission’s decisions since the ECJ caselaw has not yet definitively clarified the coordination between Regulations 1/2003, 774/2004 and 1049/2001. The second scenario regards the case of a competition procedure initiated in the context of a leniency programme. According to the same Art. 6, in fact, leniency statements cannot be disclosed, thus worsening the position of the claimant in a damages action. This situation can turn out to be even more problematic given the lack of coordination between the national leniency programmes, even though the proposal of 22 March 2017 for a directive to empower the domestic competition authorities seems to bring some improvements in this regard. The last two possible scenarios concern the cases when the competition procedure ends either with a settlement or with a commitment decision since also the evidential value of such acts within a damages action requires further clarification.
|Titolo:||The interplay between Regulations 1049/2001, 1/2003 and Directive 2014/104: will public enforcement of EU competition law always come first?|
FRATEA, Caterina (Corresponding)
|Data di pubblicazione:||2018|
|Appare nelle tipologie:||01.01 Articolo in Rivista|