Damages for breach of the EC antitrust rules: harmonising Tort Law through the back door?

Tort Law is not harmonised at a European level. Substantive and procedural regulations vary substantially across EU Member States in most of the facets and dimensions of damages actions. These differences derive, amongst other causes, from different legal traditions. However, significant efforts are being made in order to find common ground for the approximation or even harmonisation of these laws across the EU ­building on the Principles of European Tort Law and other projects, such as the European Code of Civil Procedure-. However, harmonisation of Tort Law and the corresponding Civil Procedure regulations is still open to debate and the process is envisaged to take a significant delay before any formal legal instruments are approved.

Such regulatory diversity is inevitably reflected in the field of antitrust private enforcement ­ based on claims for harm inflicted as a result of the anticompetitive behaviour-, which the European Commission is trying to encourage and promote as a key element of the modernisation process of the EC antitrust rules undertaken in 2003. In this regard, a Green Paper on damages actions for breach of the EC antitrust rules was published in December 2005 with the purpose of opening up a reform process that could facilitate private damages actions across the EU. Most remarkably, the Green Paper put forward most of the divergences in national Tort Law and Civil Procedure regulations that jeopardize the effectiveness of a privately enforced competition system. These differences in national regulations contrast with the nearly-full de facto harmonisation existing in antitrust law and its public enforcement. Consequently, the Commission proposed harmonisation alternatives that imply deep reforms in national Tort Law and Civil Procedure regulations. Those proposals are to be developed and further analysed in a forthcoming White Paper ­foreseen to be adopted around the turn of the year 2007-.

At this stage, and before the Commission puts forward new harmonisation proposals, this paper analyses its need and adequacy and wonders whether the efforts of the Commission for the harmonisation of antitrust damages actions constitutes a «backdoor harmonisation» of fundamental aspects of Tort Law and Civil Procedure with much broader implications and effects in fields of Law other than antitrust.

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Francisco Marcos Fernández, Albert Sánchez Graells, «Damages for breach of the EC antitrust rules: harmonising Tort Law through the back door?. », InDret 1.08