Collective Redress for Antitrust Damages in the European Union: Is this a Reality Now?

Posted by Social Science Research Network

Collective Redress for Antitrust Damages in the European Union: Is this a Reality Now? Damien Geradin (George Mason University)

Abstract: Private antitrust litigation is now a reality in the EU and the implementation of the 2014 Directive on actions for damages from competition law infringements will further stimulate such litigation. In 2013, the Commission also adopted a Recommendation on Collective Redress, which takes the form of a horizontal framework whose principles are set to apply to claims regarding rights granted under EU law in a variety of areas, including competition law. The Recommendation takes a conservative approach to collective redress, largely due to the fear that Member States may adopt mechanisms triggering unmeritorious litigation. Many in the EU consider that the US class actions regime has led to excessive litigation by entrepreneurial lawyers that, in the end, produce limited benefits to victims while creating significant costs to society. This view is, however, questionable since district courts, which are called to certify class actions, have in recent years exercised a more rigorous analysis of the claims presented to them. In addition, by opting for an “opt in” regime and the “loser pays” principle, while not authorizing contingency fees and punitive damages, the Recommendation may have made it harder for victims with small claims (i.e., individual consumers that have been overcharged for the goods they purchase) to obtain compensation for the harm suffered.