Tijdschrift voor Privaatrecht

Private enforcement of competition law has been a topic of interest for many years. An important manifestation of this is Directive 2014/104/EU, which stipulates several details about private cartel enforcement. This article contains an analysis of a number of the Directive’s articles (and the national legislation based on it) that generate some debatable behavioural incentives in the context of private enforcement of competition law. To begin with, the article outlines the economic foundation of the four most important damage components that occur along a cartel’s supply chain, namely overcharge, pass-on, volume effect and deadweight loss (DWL). Full compensation – the goal of the European Directive – for these damage components for plaintiffs is unlikely with the tools provided by the Directive. Their proof is not adequately facilitated. The Directive mainly offers insufficient help for the damage components that are particularly difficult to prove/calculate: volume effect and DWL. The following extreme situation may occur: Defendants know that it becomes the more unlikely that the passed-on overcharge is claimed, the lower down in the supply chain the plaintiff is. This is most extreme with final consumers. Moreover, with the current rules, there is also no real risk of final consumers suing for the DWL. The passing-on defence is clearly enabled by the directive. This increases the likelihood that it will be successfully alleged, and the proceedings reach the final consumer level. Normally, an important reason why it would be less attractive for defendants to pursue the passing-on defence is the fact that they would then have to compensate each plaintiff (at each level of the supply chain where the passing-on defence succeeds) for the volume effect. Again, there is no such risk under current law. On the contrary, it seems likely that the volume effect will not be claimed by anyone. And that means in the extreme that if the defendant along the entire supply chain successfully pleads the passing-on defence, no one claims the volume effect, and the final consumers sue neither for the passed-on overcharge nor the DWL, the following situation arises: instead of full compensation, the defendants end up paying no compensation at all. The article ends with some thoughts on how collective actions, estimations by judges and cooperation between economists and lawyers can improve the situation.

This contribution is focused on compensation rights as part of the enforcement, at the private law level, of EU competition law as contained in Articles 101-102 TFEU. The traditional starting point here is that the right to compensation in this area is based on the applicable law of torts at the national level. The fault/unlawfulness requirement, for example, is interpreted in the light of the infringement of competition law committed. However, in the light of the relevant Court of Justice decisions, the author argues that the basis for such right to compensation is directly contained in Articles 101-102 TFEU.

Thus, it can be seen from the landmark decisions on the private law enforcement of EU competition law, i.e. the judgments in Courage v Crehan (2001) and Manfredi (2006) that there is definitely an autonomous European set of rules governing compensation. However, this does not necessarily mean that what we are dealing with here is a fully elaborated European system of compensation rules – which is why the national laws must supplement EU law on this subject. However, the precise interaction between European and domestic law is a matter which has given rise to much debate. Based on an extensive comparative study involving the tort laws of the EU member states on the one hand, and that of the EU institutions on the other, this paper argues that what we are dealing with here is a one-dimensional, rather than a two-dimensional, system of compensation laws.

This entails that components of a right to compensation law, both as to substance and procedure, are essentially EU law components, but only to the extent that EU rules on the subject are actually available. Such rules can be found directly in Articles 101-102 TFEU – as can be seen from the Skanska (2019) and Sumal (2021) decisions. As is the case with the tort laws of the EU member states and institutions, these rules can also be gauged from the general principles which are common to the legal systems of the EU member states.

In the absence of a – complete – set of EU laws, it is the applicable domestic law of torts which, in accordance with the principle of national autonomy enjoyed by the EU member states, will regulate the essential components of the European right to compensation. Here, however, it is a requirement that the domestic rules meet the equivalence and effectiveness criteria.

The Directive on the rules governing actions for damages (2014/194/EU) takes no specific position on what should be the basis for the right to compensation. Given that to a large extent the Directive has adopted the reasoning followed by the Court of Justice, it implicitly recognises that there is an autonomous basis for this in EU law.

The modernised set of rules relating to rights of superficies under Belgian law creates several opportunities for the advancement of space efficiency. Making it possible to accumulate eternal rights of superficies provides the opportunity to combine various spatial functions within the same building and to approach the property in question from a tri-dimensional perspective. Thus, eternal rights of superficies provide a possible solution for the problem of land scarcity and for the durability challenges currently facing society. In this contribution, the authors discuss the opportunities and restrictions involved in using eternal rights of superficies as an instrument for ensuring the durable use of land. The analysis consists of two parts – one dealing with the contractual aspects, the other with the environmental law dimension.

If eternal rights of superficies are to become an effective instrument for the durable use of land, it is appropriate, when it comes to the creation of such a right, to approach its constituent elements using the purposive method of interpretation. Any over-rigid interpretation of the requirements concerning heterogeneity, complexity, self-standing elements, or the absence of common areas should be avoided. By adopting this approach, eternal rights of superficies, being the de facto volume ownership, can reach their full potential and the durability objective becomes capable of realisation.

In terms of the relevant environmental law, a pragmatic approach is also desirable when it comes to tri-dimensional accumulation of ownership – more particularly in relation to the question whether an allotment permit is required for the creation of volume ownership. In keeping with recent decisions by the Board for Planning Permit Disputes (Raad voor Vergunningsbetwistingen) the authors conclude that there is no allotment licence requirement for the erection of residential volumes – at least where the splitting up occurs at the purely horizontal level. Nevertheless, they have several observations to make in the light of the rationale behind the allotment licence legislation. This is because, even when it comes to the horizontal splitting up of property, quality control as overseen by the public authorities needs to be ensured, as does the ability on the part of the owner of the allotted part or volume to actually build on it.

Together with some 150 Master students of family property law at the KU Leuven, we analysed 778 recent court decisions on the economic implications of de facto cohabitation. By assembling various empirical data on the litigation between (former) de facto partners we intended to highlight the legal interests and requirements of this group of people, and thus at the same time to indicate the direction which legislation in the Civil Code could take. The relevant set of data contains information on the de facto partners’ profiles, the type of conflict that leads them to litigate, and the facts which serve as a basis for the courts in reaching their decisions. This investigation yielded a number of remarkable results.

The first one to note was that the courts do not apply a standard terminology when ruling on de facto cohabitation. This is especially the case for the Frenchspeaking lower courts, which appear to use a wide variety when it comes to the terms used. Nevertheless, the dominant terminology applied by the courts appears to be “feitelijke samenwoning” (Dutch) or “cohabitation de fait” (French) – these terms having been used in almost 70 per cent of the relevant decisions. This is why the relevant lawmakers would be best advised to use these terms when drafting legislation on this subject.

The second noteworthy aspect is that hardly any of the parties’ specific details, such as their age, income, whether or not there were any children, were featured in these decisions – whereas one would have thought that such details would play a prominent part in this context. Indeed, in the absence of any specific legislation on the subject of de facto cohabitation, the courts apply the ordinary rules in this area.

Thirdly, the investigation highlighted the key role played by the family home. In the vast majority of cases, any litigation regarding property rights between (former) de facto partners follows the same pattern – two de facto partners who jointly bought a residence and fell into dispute on its allocation following the break-up of their relationship. Any other legal issues have but a secondary role here. This is why any future legislation governing de facto cohabitation should contain rules on the protection and allocation of the family home following a break-up in their relationship. It does however appear that the case law on dissolving joint ownership provides a workable basis for solving this issue based on the applicable ordinary rules.

Finally, the issue on which the ordinary law appears to be at its most deficient is when it comes to conflicts regarding compensation for any investment in the (former) partner’s property. Barring disputes on allocation of property, these conflicts represent the most common cause of litigation, but only rarely reach a satisfactory outcome. The relevant legal grounds – unjustified enrichment and contribution to the expenses of the household – are the least successful among the grounds relied upon. These legal grounds are, therefore, relied upon quite frequently, but in most cases unsuccessfully, at least at first instance. The success rate based on these legal grounds is higher on appeal – nevertheless the success ratio achieved for such legal action remains small. It would therefore appear that the lawmakers should regard an adequate system of rules governing compensation for any investment made in the other partner’s property as a priority area.

Over the past half century, the expression ‘common core’ has undoubtedly been a pole of attraction for lawyers – at least for academic lawyers. As is frequently the case with attractive figures of speech, this one has several layers to it. In this contribution, I endeavour to bring a typology and classification to this concept, and in so doing to examine the most interesting developments which have occurred around this concept, especially in comparative law. At the same time, this is a timely opportunity for airing a number of observations on comparative law method, and on the relationship between comparative law and legal harmonisation.

In Part II I discuss the early exponents of the common core project method, and more particularly four exceptional 20th century legal scholars. Section A starts with examining the origin of the ‘common core’ concept, with particular regard to the French authors around the turn of that century, and further especially to Rudolf Schlesinger, then analyses the factual method of comparative law as developed by the latter. Section B focuses on Ernst Rabel, together with the early history of the functional comparative law method, and its relationship with private international law. Section C discusses the contribution made by Gino Gorla, and, briefly, already touches on Rodolfo Sacco, whose work is discussed more extensively later. The context in which this concept was developed further, i.e. the period following World War II, is discussed in Section D.

In Parts III and IV, I discuss the various types of Common Core projects, attempting to draw comparisons between them in the light of the relationship between comparative law and legal harmonisation. In Part III, I identify four types. Section A features the search for functional equivalents. Section B features the quest to discover a jus commune in the current case law. Section C features the quest to discover common principles based on a ‘better law’ approach, and Section D the endeavours to identify a common tradition. In Section E I add a number of critical observations with regard to the results of the various endeavours described in previous sections. The object here is not to discuss the issues surrounding legal harmonisation as such, or the question whether such a harmonisation is desirable, or to assess the advantages and disadvantages of the various methods involved, or to provide an assessment of various harmonisation projects from this point of view. Nonetheless, this contribution does contain a number of critical observations regarding the claims made in certain projects concerning the existence of a common core. In fact, Section E examines the question whether it makes sense to consider a restatement of the private law in Europe – or at least within the European Union. My conclusion is that the authors who have examined the notion of a common core have ultimately failed to create a common core in the true sense, but in the course of their endeavours have certainly enhanced and enriched comparative law methods.

In Part IV I discuss the comparative law projects which do not seek to achieve harmonisation, or at least do endeavour to acquire a better understanding of both the differences and the similarities between the various European legal systems – more particularly the Trento common core project (A). Following a brief overview of other current work in this field in Section B, Section C attempts to understand the particular significance and the additional value of comparative law based on the Trento common core model, as it could emerge from studying a broader spectrum of sources and factors (the ‘legal formants’ – including a number of somewhat cryptic elements (the ‘cryptotypes’).

In the course of our research, we encountered two approaches to a common core, on one hand the traditional harmonising common core approach, which in the first place seeks to find solutions to similar problems which are essentially regarded as similar, as expressing the same principles. The common core method embedded in the Sacco doctrine, on the other hand, led to the revision of the theories concerning legal sources as well as to other ways of identifying similarities and differences. Here, we encountered an alternative approach of the common core concept – an approach which also does attach importance to subtle technicalities, peripheral considerations and cryptotypes in order thus to be able to comprehend the long-term underlying structures which on the one hand can reveal greater differences than current concrete solutions to individual cases, but which, on the other hand, bring to light less obvious similarities by taking into account not only the dominant, but also the non-dominant formants.

I can conclude that, where comparative law merely attempts to provide a true picture of the currently applicable law under the reviewed systems, in most cases a factual method provides one of the most suitable instruments, whereas reducing the law to bare principles provides nothing like a true picture. However, if it is also important to discover what could be the answer provided by these systems in the future, all legal formants play an important part here – and not only the actual concrete solutions to the practical cases involved. They teach us how legal systems develop, and how the relevant solutions, which are discovered at different stages and in different places, are frequently functional equivalents in relation to the same problem, which do not represent the sole possible solution, but on the other hand are frequently associated with the legal system as a whole.

Under Belgian private law as it currently stands, animals are quasi-objects lacking the capacity to bear rights (articles 1.3, 3.38 and 3.39 Civil Code). On the other hand, some authors are of the opinion that, under the prevailing public law, they are already legal subjects, deriving their rights from animal welfare legislation. According to the author, this perspective gives rise to an undesirable discontinuity between the spheres of private and public law. Also, such “implicit” animal rights are, in practical terms, valueless so long as no-one has the explicit legal power to exercise these rights, given that animals, by definition, are legally incapable of so doing and they lack a legal representative. When the law puts in place such a representative, it would, at the same time, make the “implicit” rights of animals explicit.

Clearly, if lawmakers had intended to grant animals rights with the conception of animal welfare legislation, they would have provided a solution for the legal incapacity of animals to exercise those rights.

Is it best then to seek a constitutional or legal amendment which explicitly upgrades animals to legal subjects? This contribution recognises the need for stricter legal protection of animals, but questions whether legal subjectivity for animals is the most suitable instrument. As a legal instrument, the status of legal subject is entirely tailored to humans, not animals. Obviously, animals ‘deserve’ rights as much as humans, but the core question is whether these rights would be of any use to them. Animals themselves attach no value whatsoever to rights. What matters to them is their welfare, for which – rights or not – they are inevitably dependent on humans. There is no reason to believe that animal welfare will be better protected in the form of rights than in the form of welfare legislation. Also, whether deliberately or not, even in the animal rights discourse human preferences – and therefore inequalities between animals – seem to seep in.

Animal rights are not necessary for better enforcement – private or not – of animal welfare safeguards. This can be achieved just as effectively by giving animal welfare organisations the broadest possible access to courts. Likewise, lawmakers cannot wait for animal rights in order to give heavier legal weight to the animal interest or improve the scientific quality of animal welfare law. Under the current legal framework already, lawmakers are under the obligation to better protect animals.

The author accordingly concludes with a plea for a sharper legal focus on what it is already possible without granting animals rights: the (enforcement) of higher quality animal welfare regulations in accordance with higher norms such as article 13 TFEU and the principles of proper regulation.

By enacting the Law of 4/4/2019, Parliament has inserted general legislation governing B2B unfair terms and conditions into the Belgian legal order. The legal literature has subjected this B2B set of rules, to an extensive critique, advocating its review, nay total abolition, even before the reform of the law of obligations. This reform now raises the specific question as to whether the rules on B2B unfair terms and conditions retain their reason for existence. This is because Book 5 of the Civil Code (CC) contains a general rule governing unfair terms and conditions (Article 5.52) as well as expressly regulating a number of clauses featured on B2B lists, such as escape clauses (Article 5.89) and compensation clauses (Article 5.88). In order to find an answer to this question, the author subjects the rules on B2B unfair terms and conditions to a systematic comparison with the protection afforded by Book 5 of the Civil Code – buttressed by a comparative analysis of the rules applying under the laws of France, The Netherlands and Germany.

From an analysis and comparative study of the legal area in question, it emerges in the first instance that virtually all situations protected under the rules on B2B unfair terms and conditions also come within the scope of the general rules governing this field. The main area where the general rules actually have a narrower scope – to wit, a restriction covering terms and conditions which are incapable of negotiation, is precisely the area where the rules on B2B unfair terms and conditions are deemed to be too broad. All this leads the author to conclude that, at least when it comes to the scope of the legislation in question, there is no need to retain a separate set of rules on B2B unfair terms and conditions.

When comparing the general rule contained in Article 5.52 CC and Article VI.91/3 of the Business Law Code, it emerges that the general rules contained in the legislation on B2B unfair terms and conditions add but little value to the general rules. Both sets of rules apply the same criteria, in both cases the same type of marginal assessment applies, and the assessment criteria are also largely the same. Accordingly, the general B2B rules does not appear to justify their continued existence following the reformed law of obligations.

This is followed by an analysis and assessment of the list system – resulting in a plea for its abolition in a B2B context. At the same time, this analysis recognises that the question whether the list system should be retained or not is essentially a political one. That is why the second part of the author’s analysis starts from the notion that, should the ultimate decision – politically-motivated or not – be that the list system is to be retained, it would nevertheless remain necessary to review the current lists in order to remove its shortcomings from a technical legal point of view, and to bring these lists in line with the reformed law of obligations. To this end, the author systematically assesses the lists on the basis of three cumulative criteria for the justified retention of any of the terms in question – or any part of them. This assessment prompts a proposal for a unitary blacklist – in the event of the list system being retained.

Finally, from an analysis of the various remedy mechanisms, it would appear that, whilst the voidance penalty is similar to that applying under the general rules, the legislation on B2B unfair terms and conditions provides a number of additional possible remedies. These accommodate the “fear factor”, i.e. the reluctance on the part of weaker businesses to challenge unfair terms and conditions for fear of endangering the business relationship in question. This is why, even if the rules on B2B unfair terms and conditions were to be abolished, these additional remedies should be retained – applying the general rules on unfair terms and conditions for B2B transactions. This could be achieved by a process of cross-referencing contained in the relevant provisions of the Business Law Code.