Page 116 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ
P. 116

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ



            suffered.  Another function, as reiterated by the European Court of Justice (ECJ) case
                     34
            law, is a deterrent function that serves to ensure the full effectiveness of EU competition

            law.  He determined that the deterrent function of an action for damages even surpass
                35
            the compensatory function since the harm caused by anticompetitive conducts can be

            considered as a loss of economic efficiency, which leads to a loss to society as a whole
            in terms of reduced consumer welfare. 36

                    The Advocate General considered that to ensure the effectiveness of the
            enforcement of EU competition law, the determination of persons liable for damages

            cannot be different in each Member States jurisdiction. It would otherwise jeopardise
            the potential private litigations, conflict with the objective of EU competition law, which
            is to create a level playing field in the internal market, lead to forum shopping and lastly

            affect the deterrent effect of action for damages. Therefore, the persons liable in action
            for damages is to be directly determined by Article 101 TFEU.  Finally, he considered
                                                                        37
            that the principle of economic continuity could be applicable in private antitrust litigation.

            Due to the fact that the entity could avoid sanctions from anticompetitive conducts
            through  various  corporate  organisations,  in  addition  to  the  objective  to  ensure
            the deterrent effect, the principle is to be applied in action for damages. 38

                    In its judgment, the ECJ at an early state reiterated the direct effects of Article

            101 (and also article 102) TFEU.  Afterwards, the ECJ recognised the principle of
                                             39
            national procedural autonomy, that in the absence of EU rules governing the matter,
            the domestic legal system is to be applied in respect of the principles of equivalence

            and effectiveness.  However, coinciding with the AG opinion, the ECJ considered that
                             40
            it is by the direct application of EU law in terms of the determination of the entity liable






                    34  Opinion of AG Wahl in Case C-724/17 Skanska, para 28
                    35  Ibid, para 29 et seq
                    36  Opinion of AG Wahl, para 50
                    37  Ibid, para 67-68
                    38  Ibid, para 74-81
                    39  Case C-724/17 Skanska, supra (n.7), para 24
                    40  Ibid, para 27



            114
   111   112   113   114   115   116   117   118   119   120   121