Proving antitrust damages in civil proceedings : the Compatibility of Serbian Law with Directive 2014/104

Marković-Bajalović, Dijana (2023) Proving antitrust damages in civil proceedings : the Compatibility of Serbian Law with Directive 2014/104. Strani pravni život, 67 (4). pp. 643-667. ISSN 0039-2138

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Abstract

Private competition law enforcement has been a recent phenome-non in the European Union. In the past, the EU law and member states’ national laws lacked elements that contributed to the pre-ponderance of private enforcement in the United States, such as treble and punitive damages, the procedural right of a damaged party to request discovery of evidence, collective actions, etc. The interest in private enforcement of competition law has gradually increased after Regulation 1/2003 authorised national courts to implement Articles 101 and 102 TFEU, the EU courts estab-lished private enforcement principles, and Directive 2014/104 (Antitrust Damages Directive - ADD) laid down rules to facil-itate proving competition law violations and damage resulting from them. The US model evidently inspired the EU legislator. At the same time, ADD attempted to balance the private inter-ests of injured parties and the public interest for effective public enforcement. Specific ADD provisions instigated a public debate concerning their reach and alleged confrontation with general legal principles. Even though member states have taken compre-hensive measures to implement ADD, national courts need to search for an equilibrium between private and public interests. Therefore, the full effect of Directive 2014/104 is yet to be seen. Private enforcement of competition law in Serbia is still in its ini-tiation phase. The Serbian Competition Protection Act 2009 pro-claimed the right of damaged persons to bring actions for dam-ages, even though this right has already existed under the general rules of civil law. The Competition Protection Act failed to stip-ulate material conditions and procedural rules that would facili-tate private enforcement. The Serbian legislator has not yet taken steps to transpose ADD into national law. This paper first analyses the development and principal fea-tures of the US and EU private enforcement models. After that it focuses on the ADD provisions expediting evidence collec-tion and damage assessment. The second part of the paper anal-yses Serbian tort and civil procedure rules relevant to bringing actions for antitrust damages and case law on antitrust damages. The author concludes with proposals for Serbian legislators to harmonise national law with ADD.

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