What Role for Private Enforcement in EU Competition Law? A Religion in Quest of Founder

Abstract

This paper is a scholarly attempt to identify the purpose of private enforcement in EU competition law. Section 2 presents US antitrust law as the model where deterrence has a predominant role in private enforcement and which has served as a source of inspiration but not a role model for EU Competition law. Section 3 presents the purpose-setting of EU competition law at the intersections of three aims: effective remedy in terms of in integrum restitutio, fundamental rights and public policy. Section 4 defines the limits of private enforcement’s deterrent function in EU competition law. The paper’s central argument is that while private enforcement has multiple purposes in EU competition law, it features an idiosyncratic compromise between policy-oriented deterrence and the traditional notions of civil law (full compensation, prohibition of unjust enrichment). It is demonstrated that while serving a public policy purpose and making use of the grey zone between compensatory and super-compensatory damages, EU “private competition law” does not go beyond that and remains within the confines of “compensation.” The fact that it is the deterrent side effects that make private enforcement relevant for EU competition law and subject to special legislative attention does not question its compensation-oriented DNA.

Keywords: Collective actions, collective redress, EU competition law, private enforcement, procedural autonomy, punitive damages, representative actions, Tort law

JEL Classification: K13, K21, K4