Beyond the White Paper: Rethinking the Commission’s Proposal on Private Antitrust Litigation

Abstract:     
This paper provides a comparative study of group actions in existence in a number of Member States, with a particular emphasis on the Danish, Portuguese, English, French and Dutch experience, comparing the different approaches taken and contrasting them with the propositions contained in the European Commission’s White Paper on Damages Actions for Breach of Antitrust law and Green Paper on Consumer Collective Redress. It will focus on the way these procedures function, on the choices the jurisdictions have made and the issues at the heart of the debate. The case will be made that the opt-out group action model, based on the US class action has not been given sufficient consideration in the White Paper and the documents accompanying it, and has been dismissed, not because it was not the right model for the European Union, or because of its inherent defects, but for political reasons. To that end, focus will be placed on the European Commission’s White Paper with a snapshot analysis of the differences and similarities between these experiences. This paper will show that the opt-out model is already present in various jurisdictions in Europe, and through a comparative study of opt-in and opt-out models of collective actions in Europe, will attempt to demonstrate that not only is the opt-out model effective, it may very well be superior in various ways to the models considered in the White Paper.

Number of Pages in PDF File: 30

Keywords: competition law, antitrust litigation, class actions, collective redress, private enforcement, damages

JEL Classification: K21, K21, L49

Accepted Paper Series