The effects of decisions adopted by Competition Authorities in the framework of Directive 2014/104/EU: criticalities and future prospects

After giving an overview on the Directive and on the system existing before and after its entry into force, this chapter will focus on the novelty introduced by Article 9 of the Directive, that is the binding effect recognised to final infringement decisions adopted by National Competition Authorities (NCAs) or by review courts. In particular, it will be analysed how the old system, based on the binding effect of decisions adopted by the European Commission on national courts ruling on subsequent civil actions for antitrust damages (the so-called “follow-on” actions), has been expanded by granting the same binding effect to decisions adopted by NCAs and review courts of the same Member State in which the action for damages is brought. However, the same binding effect is not recognised to decisions adopted by NCAs and review courts of other Member States, which only have the value of “prima facie” evidence. Among the drawbacks of such a two-track system, it will also be considered that the latter seems to be not compatible with certain constitutional principles of some Member States and with the European principle of mutual recognition (section 4). Therefore, a possible rewording of Article 9 is proposed (sections 5 and 6), especially since the Commission shall review this Directive and shall submit a report thereon to the European Parliament and the Council by 27 December 2020. The hypothetical different solution suggested by the author considers that article 9 of the Damages Directive could have provided for a single regime establishing the binding effect of all decisions - administrative and civil, national and foreign-, as long as they must have been fully previously analysed, even in their merit, by a national court entitled to examine and reform the decision in fact and in law. The suggested solution also takes into consideration the existence of two safeguard measures: article 9.3 of the Damages Directive and the public policy clause.