This paper – which can be found here – provides a short history of private enforcement of EU antitrust law and of its relationship with public enforcement.
The paper is structured as follows: Chapter 2 looks at the situation before 2003, a period during which courts established that the Treaty’s competition provisions have direct effect and create rights for individuals, even as public enforcement predominated. Chapter 3 reviews the changes brought about by Regulation 1/2003, that allowed NCAs and national courts to fully implement competition law (up until then, the system required exceptions under Art. 101(3), which concerns efficiencies, to be approved by the European Commission). This Regulation contained a number of provisions that: (i) in line with Masterfoods, obliged NCAs and national courts to follow prior Commission decisions on antitrust infringements; and (ii) set up mechanisms for cooperation between the European Commission, NCAs and national courts concerning the private enforcement of antitrust rules. However, Regulation 1/2003 ultimately led to increased enforcement by NCAs, and thereby reinforced the central role of public enforcement in the EU.
Chapter 4 goes looks at the American system and argues that “as far as deterrence and punishment are concerned, public antitrust enforcement is inherently superior to private actions for damages”. I suppose this is intended to provide context for the discussion of the Damages Directive in Chapter 5, which describes the Directive and its provisions in great detail.
Chapter 6 changes gears and looks to the future. The chapter begins triumphantly, noting that private actions as a means of “deterrence and punishment, and thus [as] a substitute for public enforcement, has been clearly rejected [in Europe]. Instead, the central role of public enforcement, by the European Commission and the national competition authorities, working together in the European Competition Network, has been reaffirmed, with private actions for damages performing a supplementary, purely compensatory role. This basic orientation is most unlikely to change in the foreseeable future”. The author then identifies a number of issues that may be on the table in the near future: (i) the extent, if any, to which the payment of voluntary compensation may lead to a reduction in fine amounts; (ii) the cumulative impact of public sanctions and private compensation on companies and market structure, and whether the focus should not move from fining companies to sanctioning individuals; and (iii) the impact of civil liability on the attractiveness of leniency programs.
While I would have preferred something a bit more analytical, this is really comprehensive stuff. I would advise my American readers that there is a whiff of a “those uncouth, selfish, profit loving Americans” to some sections of this piece – and note that I do not agree that the author’s assumption that EU (public) enforcement is superior to US (private) enforcement is justified, at least on the grounds provided in this article. This may reflect a deeper disagreement about the ideal design of competition regimes, however.
In short, an informative piece, likely to serve as a reference when further discussions about EU private enforcement take place.