The DCFR and the Attempts to Increase the Private Enforcement of Competition Law: Convergences and Divergences
European Review of Private Law, Vol. 18, pp. 1079-1119, 2010
Maastricht European Private Law Institute (M-EPLI) Working Paper No. 2011/04. Final version published as Cauffman, C. (2010). The DCFR and the Attempts to Increase the Private Enforcement of Competition Law. European Review of Private Law, 18(6), 1079-1119.
40 Pages Posted: 20 Jan 2011 Last revised: 12 Jan 2014
Date Written: 2010
The Draft Common Frame of Reference and the private enforcement of EU competition law are both hot topics in respectively European Private Law and European Competition Law. Both projects may lead to EU legislation in the short to medium term. Although they deal to a certain extent with the same problems, mutual influences seem to have been limited. This contribution intends to increase awareness of the danger this entails for the coherency of a future European private law. The differences between the two projects range from issues of a rather quantitative nature, such as the importance attached to the compensation for damage caused by competition law infringements over fundamental aspects such as the basic structure of non-contractual liability and the functions of this type of liability, to technical aspects such as the duration of the limitation period. However, as is often the case in law, the differences between the two views are not (always) a matter of black and white. Although starting from opposing positions the combination of certain rules, the specifications given in the comments to certain rules of the DCFR or the concessions made by DG Comp after discussion of draft rules sometimes mitigate the initial differences. Yet, they cannot simply be neglected.
Keywords: competition law, tort law, DCFR
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