Commission White Paper on Private Damages Actions
The Commission published a White Paper on Private Damages Actions. While EU law clearly provides for the compensation of victims of antitrust violations, many member states have been slow in updating their rules of civil procedure to make the enforcement of such rights commercially viable. The white paper contains recommendations as to collective redress (class actions and representative actions), availability of the pass-on defense and, as a flip side, indirect purchaser actions, offensive collateral estoppel rules for final, non-appealable decisions by competition authorities, and somewhat more relaxed discovery rules. As to the latter, a key component (since US style discovery is neither possible nor desirable), in my view, is the ability of the courts to draw negative inferences from the non-production of materials.
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