This is evident in cases of price, quantity or territorial restrictions, although part of their impact on competition could be offset by the possibility of claiming damages. However, quite often, the negative effects of anti-competitive parties in a transaction are less visible and the damage caused in the form of monetary compensation is difficult to assess. Non-challenge clauses in patent licenses are just one example, as there is no way of telling whether and how many competitors have been deterred from entering the market by the existence of questionable patents that the licensee could best successfully challenge. But it is precisely this exclusionary effect (and not equality between the parties to the license) that matters, and it is real (see on the current problem of patent quality and high revocation rates of disputed patents Ullrich (2020b), passim). This is also the reason why Article 5(1)(b) of Commission Regulation (EU) No 316/2014 (footnote 64 above) excludes non-challenge clauses from the block exemption and why recurrent criticisms of their strict treatment of competition law are misplaced, see Commission, Guidelines for the application of Article 101 TFEU to technology transfer agreements, OJ No. EU 2014 C 83.3, paras. 133 et seq., 242 et seq.; A. Fuchs (2019b), art. 5 TTBER, an.
13 et seq. with references. The protection of third parties is also the idea underlying the doctrine of the validity of monitoring operations, cf. – stressing the legal certainty of a third party – BGH, 18 February 2020 (KZR 7/17), NZKartR 2020,196,197, § 30 – “Einspeisetarif III”. However, this idea leads to counterproductive results if third parties who are thus “protected” are retained in tracking transactions that are clearly detrimental to them, as is the case with tracking transactions through price or quota agreements. An obligation to pay the price of the cartel in return for obtaining legal certainty can hardly constitute a reasonable result of competition policy. Instead of focusing on the interests of third parties in terms of legal certainty, a differentiated approach is needed. For example, third parties may have the possibility to request nullity or to resume the transaction as is, for example in the case of discount agreements, the third party may benefit from the reduced price. Such differentiation follows directly from the purpose of the annulment penalty and does not depend on contractual considerations of intentional misrepresentation, abuse of rights or fair dealing in commercial transactions, which are in any event inappropriate in the context of the sanction of anti-competitive practices. Through its arts.
1, 3 and 4, Directive 2014/104/EU of 26 November 2014Footnote 98 adopts the CJEU judgments Courage/Crehan and Manfredi/Lloyd Adriatico and the principles of equivalence and effectivenessFootnote 99 as a basis for harmonising Member States` competition law with regard to various elements of tort liability. This concerns the extent of recoverable damages (art. 3, para. 2(3)), footnote 100, the assertion of excessive prices by indirect customers and the passing-on exception, including the prevention of overcompensation and the burden of proof (Art. 12 to 14), footnote 101, the consideration of actions brought by several claimants at different stages of the supply chain (Article 15) and the joint and several liability of several infringers. Article (11). Footnote 102 No less practical, Directive 2014/104 requires Member States to bring actions for damages by specific rules on disclosure of evidence by defendants or third parties (Articles 5, 8) or by a competition authority (Articles 5, 8) or by a competition authority (Articles 6, 7), footnote 103 by rules quantifying injury, including the possibility of estimating the amount of injury suffered; and a presumption, which can be rebutted, as to the existence of a causal link between the harm suffered and the alleged anti-competitive conduct (Article 17). Finally, Article 10 obliges Member States to introduce limitation periods of at least five years and lays down their practical conditions. footnote 104 In particular, the dominant undertaking should not be able to rely on the nullity of the agreement in cases where Articles 101 TFEU and 102 TFEU are concurrent. Such an “asymmetrical” nullity follows directly from the justification of competition policy to specifically sanction abuse and not from considerations aimed at defending dirty hands (see also footnotes 39 and 40). Similarly, if and to the extent that subsequent transactions can be declared invalid, it may be inappropriate to extend the penalty of nullity to transactions carried out by the victim of abuse. This book introduces the reader to the main legal and case-law provisions relating to procedural and substantive issues that may arise in actions for damages for breach of anti-competitive agreements and abuse of a prohibition of dominant position.
Over the last decade, academic publications have focused on the proposed directive on actions for damages, then on Directive 2014/104/EU of 26 November 2014 itself, and finally on the transposition texts. However, this understandable interest should not obscure the fact that the directive has been applied very little so far. This is mainly due to its temporal application. In addition to the fact that Member States only transposed the Directive between the end of 2016 and 2018, Art. 22 of the Directive provides that the substantive provisions of the Directive may not be applied to infringements of the national legislation transposing it, while the procedural provisions of the Directive apply to proceedings initiated on or after 26 December 2014. Consequently, it is the old national law that continues to govern the vast majority of cases brought before national courts in the `pre-Directive period`. In addition, a number of issues of crucial importance have not been addressed in the Directive, such as issues of international jurisdiction or the quantification of `interests`. For these reasons, it seemed to me necessary not to limit this book to commenting on the directive, important as it is, but to go beyond it. Edited by Rafael Amaro, this book presents contributions from leading academics, lawyers, lawyers and economists in the field of private competition law enforcement. It consists of thematic chapters dealing with issues such as applicable law in international disputes, limitation and quantification of damages from a European and national perspective, as well as national chapters that present the situation in several European States. Without Professor Xiaoye Wang, China`s competition law would not be in its current form.
Perhaps the most important competition law – the Antimonopoly Law (AML) – would not even have been enacted without their tireless efforts to advance China`s competition law agenda. Professor Wang`s 70th birthday. (…) Although these CJEU judgments were delivered only in response to the specific problems raised by the notification mechanism of Regulation 17/62, they remain relevant for the current enforcement system, since the Court attaches importance to the prohibition of Article 101(1) TFEU and must therefore be severely sanctioned. Footnote 25 The weight attached to Article 101 TFEU and its strict application is demonstrated by the fact that, despite the broad powers conferred by Article 103 TFEU on the EU legislature in the implementation of Articles 101 TFEU and 102 TFEU, the Court did not allow Regulation 17/62 to make Article 101 TFEU or its invalidity rule directly applicable. Fn. 26 It follows both from the importance which the Court generally attaches to the direct effect of the provisions of the Treaty, in particular those governing the integration of the Member States into an internal market of the European Union, and from the specific role which the competition rules are intended to play in that regard. Footnote 27 Thus, it was a provision on free trade that, as early as 1963, led the Court to enshrine the direct applicability of Treaty provisions as a fundamental principle of the European Union. It then successively applied this principle to the four freedoms of free movement of goods, services, capital and establishment in order to activate the interest and willingness of the various market participants to enforce them directly by attacking or defending themselves against State-induced obstacles to integration. Footnote 29 From this point of view too, competition rules and their strict application show their full significance.
