Ny lag, nya möjligheter - En rättsekonomisk analys av möjligheten till ersättning vid konkurrensöverträdelser

Sammanfattning: The essay is focusing on private damage claims following infringements of the competition rules. According to the law of the European Union, there is a right for all individuals to claim compensation for damage following infringement of competition law. In Sweden, there has been a statutory right to compensation following damage due to competition infringements since 1993. However, the possibility to claim damage has not had an effective impact on the area. Accessible case law is insufficient and the Supreme Court has not examined the matter. The lack of case law leads to unpredictability and legal uncertainty for anyone who seeks to proceed a private damage claim following competition infringements. The dissuasive purpose of the possibility to proceed private damage claims is therefore not attained. To achieve the aim of private damage claims, the European Parliament and the Council presented directive 2014/104/EU on Antitrust Damages Actions in November 2014. The directive was transposed into national Swedish law on the 27th of December 2016 through the Act on Competition Damages (2016:964). The essay identifies the possibility to proceed competition damage claims after the directive was introduced. The essay also includes an analyse of the possibility to receive compensation from a law and economics perspective. Law and economics, or economic analysis of law, is the application of economic theory to the analysis of law. Economic concepts are used to explain the effects of laws and to assess which legal rules are economically efficient. In conclusion the directive brings much needed procedural changes to the area. However, to achieve the requested aim there has to be a change regarding the compensation amount. The inadequate amount of case law is a result of the lack of incentives to proceed private damage claims following competition infringements. The proceedings tend to become substantial, expensive and complicated, not to mention that they often stretch for several years. The result of a private damage claim is, due to the lack of case law-guidance, hard to predict. In contrast to the Swedish, and European, regulation the American antitrust-laws offer the possibility to triple the amount of the damage caused by an infringement. An economic analysis of the law quickly shows that the possibility to receive such amounts changes how individuals view the risk a private claim withholds, and provide the incentives to proceed with a private damage claim. By raising the potential compensation amount the requested change would be reached.