This article considers issues around the evidential value of final infringement decisions of national regulators and review courts for the purposes of follow-on damages actions, particularly in the context of Article 9(1) of the EU’s Antitrust Damages Directive, which purports to address this issue. Some of the key questions that potential follow-on claimants are faced with are considered and it is suggested that Article 9(1) does little to address these issues. A brief analysis of the transposition of Article 9(1) into national law is then considered. It is concluded that in the absence of the EU courts providing further elaboration on Article 9(1), it will largely be left to national courts to decide how final infringement decisions should be treated in practice in follow-on actions brought before them. This may well result in a wide variety of approaches being adopted. In this context, some significant recent decisions in follow-on cases in both Italy and the UK are considered. There is also some brief discussion of Article 9(2) of the Directive.
Stirling, G. (2019). The Evidential Value of National Regulatory Infringement Decisions for the Purposes of Private Damages Actions: Trying to Establish what Really Does "Follow-on". Global Competition Litigation Review, 12(4), 168-178