Free Law Dissertations - Competition Law And Eu Remedies Introduction The Key Provision That
Competition Law and EU Remedies
Introduction
The key provision that identifies the presence of a breach of Competition law in the current case is the substantially important Article 81(1)(a) of the Treaty establishing the European Union, as it categorically prohibits price fixing agreements.
This paper examines a case in which there arise four key questions that are relevant to the seeking of remedies from National Courts for breaches of the above EU Competition Law provision. The first question asks whether or not there is an obligation for national courts to award damages and the remaining three questions concern compatibility of EU law with regard to national provisions on limitations, the burden of proof and the placing of limits on the quantification of damages.
With regard to the latter three questions, particular regard will be had to the precise wording of each question in order to determine whether or not there is compatibility with EU Law.AAre the French courts obliged to award damages to A’s customer?
1.Suing for damages for breach of Competition rules
The question of a right to sue for damages where there is a breach of EU Competition provisions eluded the ECJ until only recently when this question was finally referred to the ECJ in the case of Courage Ltd v Creon. Here the ECJ stated that the intended effectiveness of Articles 81 and 82 (EC) would be seriously compromised if individuals could not claim damages for losses incurred as a result of a breach. It was concluded that a right to seek damages acts to strengthen the Competition provisions and:
Can make a significant contribution the maintenance of effective competition in the Community
2.Are national courts OBLIGED to award damages?
The above decision states that parties have the right to sue for damages in Competition disputes but the ECJ did not state that this obliges national courts to award damages. The decision is a mere affirmation that there should be no absolute bar to raising such an action. In fact the court suggested that there are two key factors that require to be examined when determining whether damages ought to be awarded. The first is the bargaining powers and conduct of the parties and the second is the economic and legal context of the relationship between the parties. Indeed, the key question that the ECJ regarded as necessary to answer in this context was whether the plaintiff was in a comparably weaker position that had the effect of ‘seriously compromising’ or ‘eliminating’ freedom to negotiate the terms of the contract, with the result that the plaintiff had no capacity to reduce the resultant loss.
3.Application to the present case.
In the present case the negotiation of a price fixing agreement is a Cartel arrangement which suggests that the bargaining powers of purchasers were virtually non existent.
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