Simmon Vande Walle ‘Private enforcement of antitrust law in Belgium and the Netherlands – is there a race to attract antitrust damages actions?’ (2018) in Pier L. Parcu, Giorgio Monti and Marco Botta (eds.) Private Enforcement of EU Competition Law (Elgar, 2018) 118

Since the Belgian and Dutch legal systems are relatively similar, one would expect similar levels of antitrust litigation. However, this is not the case, particularly as regards follow-on claims. This article, available here, tries to find explanations for this divergence. It argues that the boom in follow-on damages actions in the Netherlands can be explained by the receptive attitude of Dutch judges and lawyers to follow-on damages actions, in line with their receptive approach to complex litigation. Belgian courts, by contrast, have been less receptive to follow-on actions, probably because Belgian judges have a higher caseload than Dutch judges do. This represents something of a paradox: the Belgian courts are more accessible and attract more regular, run-of-the mill litigation but, precisely because of this, they are less receptive to new types of litigation such as follow-on damages actions, regardless of the benefits that these actions may bring to the economy. Section 2 presents data on private antitrust enforcement in Belgium and the…

Mario Siragusa and Alessandro Comino on ‘Private Antitrust Enforcement in Italy’ (2019) CPI June

Italy has a long-standing tradition of private antitrust enforcement. This piece, available here, provides an overview of Italy’s private enforcement regime, focusing on developments brought about by Italy’s implementation of the EU Damages Directive in early 2017. This reform introduced a number of substantive and procedural provisions to facilitate damages claims by victims of antitrust infringements. As a result, the authors expect private antitrust litigation in Italy, and particularly follow-on actions, to increase. The note begins with a description of how private enforcement changed following the implementation of the EU Damages Directive. The Italian legislator took advantage of the transposition of the Directive to reform the rules regarding disclosure of evidence. The Italian system already contained a provision regulating disclosure (Article 210 of the Civil Procedure Code). However, this provision required the party seeking disclosure to show that the evidence to be disclosed was necessary and indispensable for the case. In addition, the courts interpreted this provision narrowly as allowing them…

Lukas Rengier ‘Cartel Damages Actions in German Courts: What the Statistics Tell Us’ (2019) Journal of European Competition Law & Practice 1,

Germany is commonly mentioned as one of the three preferred jurisdictions for cartel damages actions in Europe, next to England and the Netherlands. The level of private enforcement is indeed quite high in Germany, and its growth is accelerating. Up until the end of 2018, there had been 119 judgments by German courts concerning cartel damages actions— 91 by district courts (i.e. first instance courts), 24 by regional courts (i.e. second instance courts), and four by the Federal Court of Justice. Many more lawsuits are currently pending—there is no public record, but the author counts approximately 650 pending cases in district courts alone. This article, available here, takes a closer look at the practical approach adopted by German courts to cartel damages claims by conducting a statistical analysis of these 119 judgments. Section I looks at the history of cartel damages actions in Germany. Cartel damages actions in Germany can be filed before 27 district courts. Seventeen higher regional courts deal with…

Miguel Sousa Ferro ‘The Playful State of Antitrust Damages Claims in the EU’ (2019) CPI September

This short note, available here, looks at the main developments in the two years since the European Damages Directive came into force. A first set of developments relates to the increasing case law of the European courts on private enforcement.A noticeable trend is a significant increase in the number of preliminary references to the European courts. One consequence of these appeals thus far is to lay bare how great the impact of EU law is on substantive and procedural national rules relating to competition damages actions. These preliminary references also showed the Court to be a friend to private enforcement and a defender of the effectiveness of EU law. This is most apparent in the recent Skanska decision. Strictly speaking, Skanska was a case concerning solely the liability of economic successors and parent undertakings for damages arising from a competition infringement by a different legal entity. The underlying question was whether the concept of undertaking that applies in public competition enforcement…

Felipe Irarrázabal ‘Competition and the plague’ (‘La libre competencia y la peste)

This piece is available here, but only in Spanish. The summary below reflects my own translation of the piece. Emergencies – such as wars and natural disasters – undermine the assumptions underpinning competition law and policy. Competition enforcement against cartels builds on the premise that fierce competition is highly beneficial for society, whereas firm cooperation will only create benefits in much more restricted situations. Competition enforcement also relies on legal procedures, which are by nature slow and lend themselves to sophisticated disputes. Covid-19 has forced authorities to enact exceptional regimes and pressured them to take urgent and even drastic measures. The coming economic recession will likely require similar measures. The main competition agencies in the world have started to react to this negative scenario. Several of them have declared that they will be alert to any possible violation of competition law. Others have specified that they will not accept excessive prices as a result of the crisis (although this legal…

Francisco Costa-Cabral, Leigh Hancher, Giorgio Monti and Alexandre Ruiz Feases ‘EU Competition Law and Covid-10’

This paper, which is from the whole of Tilburg’s competition department, as far as I can tell, is available here. It explores how EU competition enforcement might be affected by the COVID-19 pandemic. The authors recommend that competition authorities should be watchful of excessive prices and price discrimination, and rely on interim measures if necessary. Collusion should remain an enforcement priority, but a procedural pathway to review agreements that may be in the public interest should be adopted. In merger control, the Commission’s strict interpretation of the failing firm defence is appropriate but, in general, a more sceptical attitude towards mergers may be warranted during this period. Advocacy will play a key role: competition agencies can both point to existing regulations that limit competition and monitor proposed emergency legislation that would harm competition for no good reason. A first section provides an overview of the nature of competition law in the midst of a crisis. Competition law is a political enterprise,…

Harry First and Stephen Webber Wallace ‘Pairing Public and Private Antitrust Remedies’ in Albert A. Foer Liber Amicorum, Concurrences (Forthcoming)

Discussions on private competition remedies most often deal with questions of optimal deterrence and effectiveness. Lost in conversation is the basic idea that antitrust violations cause economic harm, and that those victimised by that harm should be entitled to damages from those who have violated the law. This is the underappreciated compensatory function of antitrust. Section 4A of the Clayton Act is a powerful, yet historically underused enforcement tool that empowers the United States to obtain treble damages for anticompetitive conduct when the government is itself the victim. The paper, which can be found here, focuses on whether the US government should not only pursue public enforcement activities, but also engage in private enforcement claims to be compensated for losses as a result of anticompetitive conduct. It examines the limited use of Section 4A, and discusses some possibilities for future cooperation between public and private plaintiffs that could advance the compensatory goal of antitrust. It is structured as follows: Section I looks…

Nicole Rosenboom and Daan in ’t Veld ‘The Interaction of Public and Private Cartel Enforcement’ (2019) World Competition 42(1) 87

Despite its broad title, this article – available here – investigates mainly the interaction between leniency programmes and civil damages claims.  Most competition authorities have adopted leniency programmes to uncover cartels. To increase the overall deterrent effect of competition law, many jurisdictions have also introduced private competition enforcement, which increases the total potential financial exposure of cartel members. The impact of private competition enforcement – and particularly the concomitant increase in the liability of potential leniency applicants – on leniency programmes has been discussed in the literature, but there is an absence of empirical studies. This article tries to fill this gap by studying the empirical impact of private competition enforcement on leniency. It uses two methods: surveys of Dutch firms and competition lawyers, and econometric conjoint analysis. The authors conclude that firms’ decisions to apply for leniency are affected by the magnitude of the personal penalty to which directors are subject and the amount of fine reduction following a successful leniency application….

OECD work on Crisis Cartels (2009)

The OECD background paper on this topic was written by Professor Simon J. Evenett in 2011, and can be found here. The purpose of this paper is to consider whether changes in policies towards cartel formation are merited during economic crises and associated recoveries. The paper is structured as follows: Sections two defines crisis cartels. The term crisis cartel is used to refer to a cartel that was formed during a severe sectoral, national, or global economic downturn. Such cartels can occur without state permission or legal sanction, which may trigger enforcement; or they may be permitted, even fostered, by a government, which may trigger advocacy. The impact of a crisis on the incentive of firms to cartelise will depend on the nature of the crisis, be it sectoral, national, or international. In thinking through the impact of each type of crisis on the behaviour of cartel members, one must identify the ways in which the crisis affects the business…

Viktoria Robertson on ‘Excessive Data Collection: Privacy Considerations and Abuse of Dominance in the Era of Big Data’ (2020) Common Market Law Review 57 161

It is debatable whether EU competition law already contains – or could and should potentially develop – antitrust theories of harm that apply to third-party tracking of personal user data on the web. Focusing on data gathering, this paper – available here – assesses two scenarios under which EU competition law may deem the vast amounts of data gathered by certain digital platforms excessive: excessive data “prices” and unfair data policies. In both cases, the competition law assessment is autonomous from other areas of the law: while a breach of data protection rules is not automatically a breach of competition law, a company adhering to data protection rules may still violate competition laws. The paper finds that EU competition law already possesses the necessary tools to address excessive data collection, while data protection rules provide much-needed context for this type of exploitative abuse. Section II discusses data gathering through third-party tracking. Tracking occurs both on the web and in applications (apps) for electronic…