Open AccessPrivate Antitrust Enforcement Without Punitive Damages: A Half-Baked Reform?
Author(s) -
Claudia Massa
Publication year - 2018
Publication title -
yearbook of antitrust and regulatory studies
Language(s) - English
Resource type - Journals
eISSN - 2545-0115
pISSN - 1689-9024
DOI - 10.7172/1689-9024.yars.2018.11.17.5
Subject(s) - punitive damages , directive , enforcement , damages , legislator , directive on privacy and electronic communications , business , law and economics , commission , law , european commission , european union , political science , data protection directive , legislation , economics , european union law , international trade , computer science , programming language
Directive 2014/104/EU on private antitrust enforcement opted for the exclusion of punitive damages from the category of recoverable damages following a violation of antitrust law. This article will outline the concept of punitive damages and analyse the relevant case-law of the courts of the Member States, of the ECtHR and of the ECJ. Then, it will examine the regime laid down in the Directive and consider the possible reasons why the European legislator opted for this exclusion. Thus, the opportunity to introduce such a provision into the European legal system will be evaluated, taking into consideration the problem of overdeterrence, the problem of the division of functions between public and private enforcement, and enforcement of intellectual property rights. Finally, a possible modification of Article 3(3) of the Directive will be suggested, in the framework of the review that the Commission is required to undertake by December 27, 2020