Private and public interest in antitrust damage actions
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The paper addresses the relationship between private and public interest in antitrust damage actions, by exploring both its normative and positive aspects. It is argued that an active private enforcement, by complementing public intervention, supplies a decisive contribution for the achievement of a sufficient degree of deterrence. This is the basic reason why a competition authority should quantify the impact of anticompetitive conducts, as these calculations could greatly facilitate private damage actions. There are other motivations for the direct involvement of an antitrust authority in the damage assessment: this activity either contributes to a better fine quantification either displays essential information for accountability purposes. The positive section of the paper examines concrete damage quantifications by Italian civil courts. It shows that a competition authority should be able to match - at least - the qualitative standards currently adopted. The paper also argues that, when dealing with cartel cases, damages would be better compensated in the form of subsidies instead of in that of lump sums, as it is generally the case. In this way damage calculation is simplified, as the pass on analysis is no longer requested, and final consumers could receive a compensation for antitrust damages without recurring directly to a court. This proposal should be adopted only in the case that prices do not revert to their pre-collusive levels, after the discover and the condemnation of the cartel. In this case a damage compensation in the form of subsidy could restore market conditions prevailing before the anticompetitive behaviour.