On 22 June, Executive Vice President, David Sevy spoke at the Concurrences New Frontiers of Antitrust Conference at the Ministry of Economics in Paris. David spoke on panel 2 with Laila Medina, Séverine Schrameck, Wouter Wils and Rafael Amaro to discuss “The interplay between public and private enforcement: have we got the balance right?”.
Panel 2 – The interplay between public and private enforcement: have we got the balance right?
Executive Vice President, David Sevy
The existence of damage
- The central issue in determining the existence of damage is the causality between the events giving rise to the damage and the changes in the market.
- Publicly available documents provide information on the causal events, but there may be a deficit concerning the effects on the market.
- This leads to a universe of presumptions rather than certainty of the existence of damage.
- The rebuttable presumption is difficult to establish.
- Leniency documents would do little to change this situation, as they provide information on the facts but little on market effects and the existence of damage.
- Follow-on actions pose a fundamental problem.
- The European Commission’s practical guide and the Court of Appeal’s practical information sheets have helped to structure the debate with a common vocabulary and grammar. This makes it possible to establish a real dialogue.
- Data is essential in quantifying the loss, but there can be radical oppositions over the landing point of compensation. The lack of in-betweenness in assessments is therefore problematic for damage compensation.
- One of the major challenges in the field of damages is to establish the adversarial principle, so that judges can learn to work with divergent assessments and bring these assessments to a certain degree of convergence.
- In this context, the production of documents can help to achieve a reasonable level of compensation by enabling an informed confrontation between experts and judges.
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This synthesis was originally published by Concurrences and is available on their website (subscription required). The views expressed are those of the authors only and do not necessarily represent the views of Compass Lexecon, its management, its subsidiaries, its affiliates, its employees, or clients.