The Binding Effect of NCA Decisions under the Damages Directive: Rationale and Practical Implications

Abstract

This article analyses the practical implications of the implementation of Article 9 of the Antitrust Damages Directive, which gives decisions issued by National Competition Authorities (“NCAs”) a key role in “follow-on” damages actions. After setting the scene, by giving a short overview of the legal status prevailing before the Directive and of the institutional process that led to its adoption, the authors propose a critical analysis of Article 9 of the Directive and put forward some considerations on the main practical issues than can surface in its implementation. In this respect, a number of critical points are identified and discussed, most notably in connection with due process rights for defendants and, more generally, potential “interoperability” issues between civil and public proceedings.