The abstract presumption of harm in the Damages Directive: overconcern of overcompensation

Peter van Wijck*, Franziska Weber

*Corresponding author for this work

Research output: Contribution to journalArticleAcademicpeer-review

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Abstract

This paper is focussed on the implementation of the presumption of harm for cartels, as formulated in art. 17.2 of Directive 2014/104/EU. In most Member States the overcharge is presumed to be 0% unless proven otherwise. In two Member States this is 10% and in one it is 20%. These can be considered as three defaults. Damages litigation may lead to under- or overcompensation. Achieving full compensation is rather a coincidence. If harm is de facto substantially lower (higher) than the default, the infringer (victim) has an incentive to prove the actual level of harm. Different choices regarding the presumptions of harm imply a difference in the weighing of under- and overcompensation. A 0% default suggests that preventing overcompensation is the dominant goal. A 10% default will be more effective than a 0% default in serving the compensatory function.
Original languageEnglish
Pages (from-to)204-227
Number of pages24
JournalEuropean Competition Journal
Volume18
Issue number1
DOIs
Publication statusE-pub ahead of print - 26 Sep 2021

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