Promoting Private Actions with Rebuttable Presumptions: An Economic Perspective, James Kavanagh, Gunnar Niels and Robin Noble
The European Commission and various Member States would like to encourage more private enforcement of competition law. The UK government recently set out a number of proposals to improve on the current regime in the UK. We discuss two aspects of the proposed reforms: the plan to make the Competition Appeal Tribunal a major venue for competition actions, and the introduction of a rebuttable cartel overcharge presumption. We argue that on balance there is little merit in using a rebuttable presumption for overcharge, since the circumstances of Art 101 TFEU infringements vary widely. Case-by-case assessments of overcharge, and other aspects such as pass-on and volume effects, are more appropriate in practice, and do not pose insurmountable difficulties for claimants and defendants.
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