Immaterialgüter- und Wettbewerbsrecht

Actions of Damages on Behalf of a Competitor According to European Competition Law in The Light of German and US Antitrust Law

Comparative analysis of four main areas concerning actions for damages in Greek, German and European and US Antitrust law, namely the passing-on defense, the access to evidence and the general interface with leniency programmes, procedural issues with a specific emphasis on limitation periods and the burden of proof and the quantification of damages.

Letzte Änderung: 01.12.11

The project focuses on four key issues with regard to actions for damages on behalf of a market competitor, utilizing the relevant German and US Antitrust law provisions and critically addressing points raised at a European level or yet to be raised in the limited, so far, Greek experience.

Starting from the basic principles and differences between US and European Antitrust law, to enable further comparison, and after highlighting the notion of Brunswick’s “antirust injury”, the first key issue of the project, namely the passing-on defense is examined, taking into consideration section 33(3) ARC and the heated debate on whether its reading allows for a passing-on argument, which fuelled the German literature. The relevant German jurisprudence is presented in contrast to the passing-on rationale being expressed at the US federal level .

The discussion above leads to the second key area of the project, that is to say procedural issues with a specific emphasis on disclosure and the burden of proof, as well as the notion of exploratory evidence and its treatment by the US and German law.

Further on, the interface between access to evidence and leniency schemes is addressed, comparing the DoJ’s confidentiality policy with the recent ECJ judgment of June the 14th 2011, which brings the national judge to the forefront, leaving a window open for access to documents related to a leniency procedure.

Finally, the fourth part of the project explores issues relating to the quantification of damages and the effort for harmonization at a European level underlined by the European Commission’s Draft Guidance Paper, emphasizing on the quantification of harm in the case of exclusionary practices and the challenges posed specifically by the calculation of future loss in cases of market foreclosure, as well as the applicability and practical implications of economic methods employed, with the relevant reference to the US experience and trebling of damages.



Daphne Koutsouki


Dr. Mark-Oliver Mackenrodt


Prof. Dr. Tzouganatos


Strukturfragen der Rechtsdurchsetzung