Increasing Importance of Private Enforcement in Europe

The importance of antitrust law is acknowledged all over the world. However, different conclusions have been drawn as regards the instruments of its enforcement. As far as damage claims are concerned, private plaintiffs have played a paramount role in the development of antitrust law in the United States over the last century. Today, 95 % of all US antitrust cases are initiated by private parties. In sharp contrast, private antitrust enforcement in the European Union has become practically relevant only recently. In Europe, the enforcement of damage claims against members of hardcore cartels is still a new phenomenon.

-    Lack of practical relevance in the past
-    Paradigm shift
-    Milestones in the development of European private antitrust enforcement
-    Where are we now?

Lack of practical relevance in the past

Private enforcement of antitrust law has never been deemed unimportant in Europe. The German government, for example, already stated in its 1952 Comment on the Draft Act against Restraints of Competition that the cartel prohibition shall be enforced, inter alia, by claims for damages. Similarly, the European Commission noted, in its 1993 Notice on cooperation between national courts and the Commission in applying Articles 85 and 86 of the EEC Treaty [OJ C 39/6, 13/02/1993], that such claims should be brought before the courts, as companies most likely would avoid infringements of EU competition rules if the infringers face the risk of having to compensate the victims.

However, said attempts to integrate national courts in the enforcement of competition law had only moderate success. According to a comparative study in 2004 (‘Ashurst Report’), which was initiated by the Commission, private damage actions for infringement of competition law have had a marginal relevance thus far. The Ashurst Report reveals that in all Member States there were only about 60 reported cases of damage actions based on European or national competition law between 1962 and 2004. In addition, compensation on the basis of European competition law was only awarded in 12 cases. The Ashurst Report concluded that the overall picture that emerges from the enforcement of damage claims in Europe was that of ‘astonishing diversity’ and ‘total underdevelopment’.

Paradigm shift

The findings of the Ashurst Report are the result of the legal systems of the Member States hampering the effective enforcement of civil law sanctions. It has taken some time for the Commission and national legislators to acknowledge that private and public enforcement of antitrust law complement each other. Private enforcement not only allows for individual damage claims in the pursuit of justice and reverses a situation of unjust enrichment, but it also strengthens the deterrent effect of antitrust rules on potential infringers, relieves cartel authorities with limited resources, contributes to development of the law, serves as an indicator for competition authorities for sensitive issues, and raises awareness for competition rules and compliance among all market participants. Accepting this, a fundamental shift in European competition law and policy has started towards the strengthening of private enforcement at European and national level.

Milestones in the development of European private antitrust enforcement

On the European level, a number of important steps have been taken over the last decade to strengthen the legal framework of private enforcement of antitrust law. The following elements might be regarded as the most important:


18/07/1996     Notice of the European Commission on the non-imposition or reduction of fines in cartel cases [OJ C 207/4]

With the ‘Leniency Notice’ in 1996 and its amendments in 2002 and 2006, the Commission has taken an important step towards a more efficient fight against hardcore cartels. The Commission’s leniency programme privileges cartel members who reveal the existence of hardcore cartels and cooperate with the Commission in its investigation by relieving such cartel members fully or partly of fines. Private plaintiffs in damages actions may therefore indirectly benefit from the public leniency programmes, as they promote the detection of secret cartels. A number of Member States have also introduced leniency programmes at national level. The idea of leniency in exchange for the provision of relevant information may also be applied in the private enforcement of antitrust law. CDC has developed a similar concept for the benefit of individual cartel members (see Leniency PLUS⁺).


20/09/2001     Court of Justice, Case C-453/99, Courage v Crehan [2001] ECR I-6297

In this landmark decision the Court of Justice of the European Union held that the full effectiveness of the cartel prohibition under the Treaty on the Functioning of the European Union (TFEU) requires an individual right to compensation for anybody who sustained damages as a result of an infringement of such prohibition. The Court of Justice points out that ‘the existence of such a right strengthens the working of the Community competition rules and discourages agreements or practices, which are frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the Community’.


04/01/2003     Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [OJ L 1/1]

The ‘Modernisation Regulation’ resulted in a fundamental change in the enforcement of  EU competition law from an centralised administrative control by the Commission to a more decentralised and also private enforcement of the law by third parties on the basis of economic incentives. In particular, national courts were given the power, and the obligation, to directly apply Article 101 TFEU. In this respect, Recital 7 of the Regulation stresses that ‘[n]ational courts have an essential part to play in applying the Community competition rules. When deciding disputes between private individuals, they protect the subjective rights under Community law, for example by awarding damages to the victims of infringements’.


31/08/2004     Ashurst Report on behalf of the European Commission

The Ashurst Report is a study carried out by the law firm Ashurst for the Commission to identify and analyse the obstacles to successful damages actions for breach of competition law within the EU. The Ashurst Report consists of a detailed comparative study, an analysis of the economic models for the calculation of damages, and national reports on the state of private antitrust enforcement in each of the Member States.


19/12/2005     Green Paper of the European Commission on damages actions for breach of the EC antitrust rules [COM(2005) 672]

With the objective of tackling the obstacles to private antitrust enforcement as identified in the Ashurst Report, the Commission stimulated the debate in this respect by issuing a so-called Green Paper.  The document listed a number of possible options to further strengthen damage actions before national courts and invited all stakeholders to comment on such options within several months. All comments are published.


13/07/2006    Court of Justice, Joined Cases C-295/04 to C-298/04, Manfredi [2006] ECR I-6619

In this second landmark judgment, the Court of Justice points out that the full effectiveness of the cartel prohibition under Article 101(1) TFEU would be put at risk if it were not possible for ‘any individual’ to claim damages for losses (including loss of profit and interest as from the day the damage occurred) caused to him by anticompetitive practices. In addition, the Court of Justice confirms an obligation of the Member States under EU law to provide practicable and effective rules and procedures for the enforcement of damage claims based on cartel activity.


02/04/2008    White Paper of the European Commission on damages actions for breach of the EC antitrust rules [COM(2008) 165 final]

In its White Paper on damage actions the European Commission made concrete proposals to make damage claims by cartel victims more efficient in practice. The proposals are considered to respect the traditions and the culture of the European legal systems. The Commission takes account of the acquis communautaire, in particular the valid principles and rules already formulated by the Court of Justice with regard to the enforcement of antitrust damage claims. It thus acknowledges that the individual right to compensation finds its legal basis directly in EU law and that any victim is entitled to full compensation of the damage sustained.

Key proposals of the Commission concern the possibility of collective redress, the disclosure of evidence and the binding effect of final decisions of competition authorities in subsequent damages actions. The White Paper is accompanied by a Commission Staff Working Paper which summarises the acquis communautaire and an Impact Assessment Report which summarises the findings of a related external study (‘Impact Study’) that was jointly prepared by the Centre for European Policies Studies, the Erasmus University Rotterdam and the Libera Università Internazionale degli Studi Sociali Guido Carli, Rome.


26/03/2009    Resolution of the European Parliament on the White Paper on damages actions for breach of the EC antitrust rules [2008/2154(INI)]

The European Parliament’s resolution as well as the related opinion of the European and Social Committee widely backed the proposals made in the White Paper. The resolution mainly focuses on effective redress mechanisms and advocates a balanced approach between new, innovative forms of litigation and the potential risk of abuses.


Further Developments

Following the resolution of the European Parliament, the Commission has prepared a draft directive on damage actions for infringement of the EU competition rules. However, due to concerns of some Member States and general policy reasons the draft directive has not yet been published. Competition Commissioner Kroes recently declared that the finalising and presentation of the draft directive is left for the new Commissioner Almunia.

In parallel to the developments on the EU level as regards antitrust damage claims there have been fundamental reforms in the legal orders of several Member States. Numerous damage actions in national courts all over Europe have also been lodged (for example, cases Vitamins, German Cement Cartel and Hydrogen Peroxide in Germany; cases Vitamins, Tyre Rubber and Air Freight in England; case Lifts and Escalators in Belgium and Austria, and case Sugar in Spain).

Where are we now?

The developments described have without doubt improved the possibilities for a private enforcement of antitrust law in Europe. However, the current situation is still far from satisfactory. A truly effective framework for enforcing damage claims by any victim of anticompetitive practices does not yet exist.

This is why a specific approach like the CDC model is still needed to overcome the existing obstacles to private enforcement.

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