Competition Law Enforcement Under Informational Asymmetry
China-EU Law Journal (CELJ), Vol. 5, No. 3, pp. 209-231, March 2017, DOI: 10.1007/s12689-016-0073-8
25 Pages Posted: 12 Apr 2017 Last revised: 2 Dec 2017
Date Written: 2017
Competition law enforcement, whether by public officials, private parties and consumers or the courts, has to resolve informational and resource asymmetries. Current EU competition law establishes an interface between government enforcement action and private litigation. For the EU Commission, informational asymmetries will be primarily addressed under positive comity agreements with other countries and its leniency programme. For private parties, the success of a stand-alone or follow-on action for damages critically depends on disclosure of documents. The Court of Justice of the European Union attempts to strike a balance between disclosure and the Commission's preference for confidentiality. Nonetheless, the EU law concept of effectiveness and equivalence of competition law enforcement does not supersede national law rules on procedure or liability of private parties. The Court of Justice applies a negative harmonisation strategy towards national laws. Where appropriate, the paper will assess enforcement practice under U.S. law.
Note: This article is published in the Max Planck Private Law Research Paper Series through Open Access funding provided by Max Planck Society. It is distributed under the terms of the Creative Commons Attribution 4.0 International License (CC BY 4.0). No changes were made to the article. As published in: China-EU Law Journal 5 (2017), 209–231, DOI: 10.1007/s12689-016-0073-8.
Keywords: Competition law, Public and private enforcement, Law of procedure, Discovery and comity
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