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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
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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
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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
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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
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