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.