Quo vadis, competition litigation?

​​I. Introduction

Many years ago the European Parliament firstly raised the issue of damages out of competition law infringement. In its resolution with respect to the Commission's proposal of a competition law regulation (later Regulation No 17¹⁾¹⁾Council Regulation No 17 of 6 February 1962, OJ 1962 13/62.) the European Parliament considered it essential that there are penalties for infringements of competition law and as soon as possible the issue of damages in this context should be regulated uniformly.²⁾²⁾OJ 1961 1410/61, item 11. The Commission itself expressed its affirmative view about private actions for damages for the first time in 1973.³⁾³⁾OJ 1973 C 67/55: "The Commission considers that actions for damages brought by injured consumers against firms that have violated Articles 85 and 86 of the EEC Treaty could provide useful support for its own measures to combat such infringement."; a list of Commission statements in this respect can be found in the opinion of Mr Advocate General Van Gerven, delivered on 27 October 1993, Case C-128/92 , Banks, (1994) ECR I-1251, footnote 112. The ECJ in its decision BRT v SABAM⁴⁾⁴⁾Case 127/73, Belgische Radio en Televisie and Societe belge des auterus, compositeurs et editeurs v SABAM and NV Fonior, (1974) ECR 51. spoke out, that the EU competition rules (now Article 101 and 102 TFEU⁵⁾⁵⁾The Treaty on the Functioning of the European Union, OJ 2010 C 83/47, hereafter TFEU.) ‚create direct rights in respect of the individuals concerned which the national courts must safeguard‘.⁶⁾⁶⁾Case 127/73, Belgische Radio en Televisie and Societe belge des auterus, compositeurs et editeurs v SABAM and NV Fonior, (1974) ECR 51, para 16. The General Advocate considered actions for damages as useful for the enforcement of competition rules and concluded that damages out of competition law infringements are based on Community law.⁷⁾⁷⁾Opinion of Mr Advocate General Van Gerven, delivered on 27 October 1993, case C-128/92 , Banks, (1994) ECR I-1251 et sequitur. This was later confirmed by the ECJ⁸⁾⁸⁾Case C-453/99 , Courage v Crehan, (2001) ECR I-6297; Joined Cases C-259 - 298/04, Manfredi, (2006) ECR I-6297. and stated in Regulation No 1/2003⁹⁾⁹⁾Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ 2003 L 1/1, hereafter Regulation No 1/2003..