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Dissertation
Immaterialgüter- und Wettbewerbsrecht

Towards a Real Compensatory Policy for Illegal Monopolistic Behaviour

The study gives an understanding of the unjust enrichment principle used in the Courage [2001] and Manfredi [2006] rulings of the ECJ and how this principle has influenced the Directive 2014/104/EU (known as antimonopoly damages Directive). The study seeks to elaborate a real compensatory policy for illegal monopolistic behaviour.

Letzte Änderung: 17.11.17

The ECJ mentioned the unjust enrichment principle as a limit to damages. The principle poses great challenges from the point of view of a dogmatic construction both of damages and the unjust enrichment itself. The 2014/104/UE Directive has harmonised a very controversial field of law considering the disparities in the damage rules of different legal traditions, both between continental and non-continental law systems, and among the own continental systems themselves.These disparities and tensions explain to a certain extent the restrictive concepts used by the Directive, the exclusion of any punitive element in the assessment of damages, and the construction of a reduced full compensation principle.


Yet, the difficulties arise not only from the complexity in the harmonization of the law of damages. Rather, they arise mainly from the conception of the antitrust enforcement and the role that the individuals should play in it. Different scholars have suggested that private enforcement is directed only to damages. This is where the principle of unjust enrichment could play a role renovating our perspective of the law of damages in the realm of antitrust. Understanding the real significance of the unjust enrichment principle as established in Courage [2001] and Manfredi [2006] is thus of paramount importance.


The investigation shows that the principle is not a limit to damages, since the law of damages finds its limit in its own definition. As long as we could define what damage is and which kind of damages are to be compensated, we should proceed to compensate it, without any need to recur to an external principle (alterum non laedere) which should be a hypothetical unjust enrichment principle. Also, the construction of the principle by the ECJ is in itself controversial as it has its origins in tax law and the market integration of the first decades. A great number of decisions have been analyzed showing the way in which the ECJ elaborates and applies the principle. Moreover, the differences in the own conception of the unjust enrichment action among the different legal systems explain the difficulties encountered by the ECJ in its case-by-case approach and undermine a well-founded doctrine on the concept.
Bringing light to all these tensions and conceptual misunderstandings has been the main object of the research.

Personen

Doktorand/in

Gustavo Andrés Martín Martín

Doktorvater/-mutter

Prof. Dr. Fernando Carbajo Cascón

Forschungsschwerpunkte

Strukturfragen der Rechtsdurchsetzung