In the EU, the surge in private damages actions following the transposition of the Private Damages Directive (PDD) at member state level has brought to the fore several novel legal questions, prompting national courts to regularly seek guidance from the European Court of Justice (ECJ).
In seeking to strike a balance between facilitating claims and promoting legal certainty, the ECJ has tended to favor the former. However, there is a concern that, if the threshold for obtaining damages in the EU is set too low, partly in response to the frequent inequality of arms between individual plaintiffs and well-funded corporate defendants, it could undermine incentives to apply for leniency, to the detriment of public enforcement. It is hoped that, as more member states introduce collective redress mechanisms, this will support a robust approach by courts to burden and standard of proof, including in relation to evidence of quantum by plaintiffs.
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