How much effectiveness for the EU Damages Directive? Contractual Clauses and Antitrust Damages Actions

The Damages Directive has been celebrated as a milestone for the private enforcement of EU competition law. The Directive harmonises national procedural laws and aims to facilitate full compensation for damages occurred as a result of competition law violations. At the same time, US and EU businesses more frequently use contractual clauses that might present obstacles in obtaining compensation. Recent high-profile examples include a US antitrust damages case against Uber which was inadmissible because of clauses contained in the terms and conditions of the app or clauses included in Ryanair’s terms and conditions. This paper explores the extent to which jurisdiction, mandatory arbitration, and clauses that prevent the participation in class actions endanger the effectiveness of the EU Damages Directive. It shows that, in contrast to consumer situations, such dangers exist currently in commercial cases. It suggests a balancing exercise between the parties’ autonomy and full effectiveness of the rights of victims of competition law violations. While the principle of effectiveness provides some protection, these dangers to the development of a strong private enforcement in Europe are likely to remain in the future and suggest a renewed emphasis on private enforcement by consumers.