Integrating Public and Private Enforcement of Competition Law in Europe -- Legal and Jurisdictional Issues
42 Pages Posted: 9 Sep 2015
Date Written: September 8, 2015
For the purposes of discussing the idea of a possible integration of public and private enforcement of competition law in the Europe it is useful, on the one hand, to perceive how the idea of private enforcement of EU competition law has developed over recent years and, on the other hand, to purport to provide a systematic and analytic understanding of the so called ‘private enforcement’ ‘vis a vis’ public enforcement of competition law, that has clearly represented the cornerstone of the EU system of competition law. That brief introductory overview, in turn, will lead us to perceive and critically debate three contrasting views that may currently be sustained in the context of the gradual, albeit so far very limited, emergence of forms of private enforcement of competition law in the EU. These, in short, correspond to the following: (i) A view sustaining a fully integrated framework of enforcement of competition law, integrating public and private enforcement techniques in a distinctively European way (basically different from the American way) and drastically reviewing the theories and/or foundations underlying enforcement of competition rules; (ii) A view sustaining a fully autonomous or independent system of private enforcement of competition law, largely based on adequate mechanisms that allow for collective redress for claimants with small and dispersed losses to recover damages for losses they have suffered on account of anticompetitive conduct; whilst admitting that such private enforcement based on collective redress may, in some limited forms, complement public enforcement of competition law (particularly as regards the so-called follow-on cases to which we shall refer infra), according to this view, private enforcement anchored in collective redress is basically independent of enforcement by public bodies and requires no coordination with that sphere of public enforcement; (iii) According to a third possible view, public enforcement of competition law is to remain a prevailing feature of the EU system of enforcement of competition rules and private enforcement may perform a strictly complementary and subsidiary role, which will require some forms of coordination between the two areas (but always keeping in mind the dominant role of the public sphere and without requiring a fundamental shift of the theories and/or foundations underlying enforcement of competition rules). This paper basically follows such third, alternative, view, for reasons that will be put forward throughout the paper (however briefly). The paper also deals, however briefly, with the rather protracted Commission Proposals presented on 11 June 2013 and leading to a new directive on private antitrust damage actions and a non-binding recommendation on collective redress mechanisms, covering beside infringements to competition law, relief for violations of consumer protection, environmental and other laws.
Keywords: public enforcement of competition law; private enforcement of competition law; damages; leniency policy
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