Binding effect of decisions

'Public antitrust enforcement has a strong facilitating effect on private actions for damages. Indeed, follow-on actions for damages are much easier to bring than stand-alone actions for damages, because the public enforcement action will have established the existence of the antitrust violation, and may also have generated useful evidence as to causation and as to the harm caused to the claimant in the follow-on action.'

Wouter P. J. Wils, The relationship between public antitrust enforcement and private actions for damages (2009)

Binding Effect of Decisions of Competition Authorities

Binding effect of decisions of the European Commission

Cartel decisions of the European Commission have a binding effect in private antitrust damage actions as regards the existence of a cartel. Article 16(1) of Regulation (EC) 1/2003 stipulates this binding effect in codifying the case law of the European Court of Justice [Case C-344/98, Masterfoods]. Thus, cartel victims can rely on the decision of the Commission in the course of ‘follow-on’ damage actions before the national courts. This is a substantial advantage for private plaintiffs, who otherwise would have to demonstrate and prove the existence of such anticompetitive practices of the cartel members

Binding effect of decisions of national competition authorities

In most of the European states, the follow-on rule applies also to administrative decisions of national competition authorities and court judgments.

For example, the amendment to the German Act against Restraints of Competition (ARC) in 2005 created such a rule in order to facilitate follow-on actions, covering even decisions of competition authorities in other EU Member States. According to the legislative intent, the binding effect of an administrative antitrust decision exists in favour of the private plaintiff only. In CDC’s Cement Cartel case, for instance, the Higher Regional Court of Düsseldorf held that the binding effect under the 2005 ARC does not demand that a plaintiff who has already filed an action before a civil court must wait for the results of the final decision in the parallel administrative proceedings [Ref. No. VI-W (Kart) 6/06].

England and Wales introduced an express follow on-rule in the 2002 Enterprise Act. In particular, the Competition Appeal Tribunal (CAT), a specialist competition tribunal, will only consider follow-on actions, while proceedings in the Chancery Division of the High Court in London can be initiated either as a follow-on action or a ‘standalone’ action.

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