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Private Damages Actions under EU Competition Law: An Analysis of Standing to Sue for Indirect Purchasers and Proving Loss

Grant Stirling

Following various consultations over a number of years, the European Commission published a directive proposal in June 2013 under which national rules regulating private damages actions under EU competition law would be harmonised in certain respects. This paper will focus upon the issue of standing for indirect purchasers (meaning those who have suffered loss despite not having purchased directly from, for example, members of a cartel) to sue parties that have infringed articles 101 or 102 of the Treaty on the Functioning of the European Union, in the courts of Member States. As well as setting out the EU proposals on this issue, the paper will examine the existing rules on standing in the jurisdictions of England/Wales and Italy, one being a common law jurisdiction and one a civil law jurisdiction and ask how the EU proposals would fit in with such existing rules. Using recent case law, the paper shall also examine what is required of indirect purchasers in terms of proving loss. Finally, conclusions will be drawn upon the extent to which the directive, if implemented, will require the Member States in question to depart from fundamental principles of their existing tort law systems with regard to their own rules on standing and how effective such measures will be in terms of enabling victims of antitrust infringements to bring successful damages actions.

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