PRIVATE ANTITRUST ENFORCEMENT IN THE TOURISM INDUSTRY 99 subject of many discussions in legal doctrine and practice. Deterrence is not the subject of discussion included in this paper, but compensation certainly constitutes its focal point. Compensation means that the party which suffers any damage as a result of the violation of antitrust law should be compensated, namely the economic balance in an individual situation of the injured party has to be regained30. As a consequence, the damaged party should be in the same position, as if the violation of competition law did not occur. To this extent, the rules that govern civil liability apply respectively, except for some adjustments aimed at the popularisation of antitrust damages claims by making them more accessible for injured parties. One example of such facilitation is the Directive31. The conditions of civil liability that must be met in order to effectively seek damages based on the infringement of antitrust law can differ depending on the legal system of a particular state. However, there is a model of such liability that is shared by the vast majority of legal cultures, particularly in Europe, in which three main conditions have to be fulfilled in order to effectively pursue antitrust damages action (antitrust law violation, damage and a causal link between the two). Moreover, this liability usually applies to private antitrust enforcement32. In order to ascertain any civil liability based on the infringement of antitrust law, the latter should and must be proved in the course of court proceedings. The nature of the infringement necessary to establish the liability of the infringer can differ, beginning with the objective liability (irrespectively of fault of the infringing party or parties), through presumption of fault (fault of the infringing party is presumed), landing on liability based on infringer’s fault (lack of due care, negligence, etc.)33. The damaged party must suffer loss in the meaning of private law, namely pecuniary loss in its asset. The loss can be actual or future. Therefore, in principle, civil liability covers actual damage and profits lost by the injured party as a result of the infringement. This constitutes the second condition of civil liability. As a result, to be able to effectively pursue antitrust 30 See e.g. liability under American antitrust regime C. D. Floyd, E. T. Sullivan, Private Antitrust Actions …, pp. 630-632 & 974. 31 See e.g. B. Rodger, M. S. Ferro, F. Marcos, The Antitrust Damages Directive … and A. Piszcz (ed.), Implementation of the EU Damages Directive … 32 For more see e.g. D. Wolski, The Principle of Liability in Private Antitrust Enforcement in Selected European States In Light of the Implementation of the Damages Directive into the Polish Legal System, Yearbook of Antitrust and Regulatory Studies, 2016, 9(14), pp. 69-96 and D. Wolski, The Type of Liability in Private Enforcement in Selected CEE Countries … as well as antitrust damages rules under American antitrust law C. D. Floyd, E. T. Sullivan, Private Antitrust Actions …, p. 632 and C. A. Jones, Private Enforcement …, pp. 199 et seq. 33 See more D. Wolski, The Principle of Liability … and D. Wolski, The Type of Liability in Private Enforcement.
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