Legal Basis

-    Legal basis in EU law
-    Legal basis in the national law of the EU Member States
-    Legal basis in EEA Treaty and other agreements of the EU and its Member States

Legal basis in EU law

There are two levels of antitrust law and its enforcement in the EU. Whereas the Commission enforces EU antitrust rules at the EU level, national competition authorities and national courts apply both EU and national antitrust law at the Member State level. Therefore, the private enforcement of competition law through national courts (including damages actions) is essentially a matter for the Member States.

In case of violations of EU antitrust law, in particular Article 101 of the Treaty on the Functioning of the European Union (TFEU, ex Article 81 EC), national courts must, however, take into account that the right to compensation is directly enshrined in and guaranteed by EU law. The Court of Justice of the European Union held in its Courage/Crehan judgment of 2001 that the full effectiveness of Article 101 TFEU and, in particular, the practical effect of the prohibition laid down in Article 101(1) TFEU (ex Article 81(1) EC) would be put at risk if it were not open to any individual to claim damages for loss caused to him by anticompetitive practices. The existence of such right serves in particular the effectiveness of the EU competition rules and discourages agreements or practices liable to restrict or distort competition [Case C-453/99, para 26-27]. As the ECJ added in its 2006 Manfredi judgment, it results that any individual can claim compensation for the damage suffered (including loss of profit and interest as from the day the damage occurred) where there is a causal relationship between the damage and a violation of Article 101 TFEU [Cases C-295/04 to C-298/04, para 61].

In the absence of specific EU rules governing the private enforcement of EU antitrust law, it is for the national legal order of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from Union law. However, such rules shall in any event not be less favourable than those governing similar actions under national law (principle of equivalence) and shall not render practically impossible or excessively difficult the exercise of the damage claims conferred upon by EU law (principle of effectiveness) [Case C-453/99, para 29; Cases C-295/04 to C-298/04, para 62].

Legal Basis in the national law of the EU Member States

The individual right to claim damages which result from the infringement of antitrust law is guaranteed by both European law and national law. The following table provides an overview of the legal basis of antitrust damage claims in the national law of the Member States. The table has been taken from the Ashurst Report [2004] which contains further information in this respect.

[Ashurst 2004: Study on the conditions of claims for damages in case of infringement of EC competition rules, p. 27-28.]

This overview gives an impression of the possibility to claim antitrust damages all over Europe. It is not intended to mirror the current legal situation in the EU Member States. 

Legal basis in the EEA Treaty and other agreements of the EU and its Member States

According to the Court of First Instance of the European Communities (now: General Court), international agreements concluded by the EU in conformity with the TFEU (ex EC Treaty) are binding on both the institutions and the Member States. The provisions of such agreements are integrated into the EC (now: EU) legal order once they have entered into force [Case T-115/94, Opel Austria, para 101]. It follows that all such provisions must be interpreted in the light of the acquis communautaire, the legal standards of EU law. Thus, especially in cases where an international agreement contains competition rules modelled on Article 101 TFEU (ex Article 81 EC), the principles developed by the ECJ with regard to antitrust damage claims under Article 101 TFEU generally also apply to those competition rules. For example, national courts might hold cartel members liable for damages resulting from the infringement of Article 53 of the Agreement on the European Economic Area (EEA Treaty) which was concluded in 1993 between the member states of the European Free Trade Association (EFTA), the European Community and its Member States [see Case T-115/94, Opel Austria, para 102]. This is relevant in cases where the anticompetitive practices found by the Commission concern the EEA-wide market, that is, non-EU Member States such as Norway or Iceland.

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