The ECJ’s Judgment in Kone and Private Enforcement’s “Negative Harmonization Framework”: Another Brick in the Wall

Abstract

The Kone judgment, the sixth judgment of the ECJ on antitrust law private enforcement claims brought under national legislation, develops two aspects of the case law. In the first place it clarifies the issue of causal link in actions for damages for breach of Articles 101 and 102 TFEU. In second place it slightly changes the Courage legality test. Some criticisms can be raised as to the reasoning of the Court since it could lead to the erroneous conclusion that the Commission has no power to deny requests from third parties seeking access to leniency documents in its possession.