'Any individual can claim compensation for the harm suffered where there is a causal relationship between the harm and an agreement or practice prohibited under Article 81 EC.’
Court of Justice of the European Union, Joined Cases C-295/04 to C-298/04, ‘Manfredi’ [2006] ECR I-6619
'I intend to explore more in depth the issue of antitrust damages and the compensation of victims, bearing in mind the necessity of safeguards to prevent us from the kind of excessive litigation often experienced in the US.'
Replies by the Commissioner-designate, Joaquín Almunia, to the written hearing by the European Parliament (2009)
'We can't give some people these rights and not others. That is not the European way, and that is why European harmonisation is needed.'
Neelie Kroes (2009)
Private Antitrust Enforcement
Private antitrust enforcement means the application of antitrust rules by private parties as opposed to public authorities. Private parties may apply antitrust rules both defensively (for example, as an objection to claims for payment or delivery) and offensively as the basis of a claim. National and international legislators, competition authorities, and courts particularly strengthen and promote private actions for damages against members of hardcore cartels, as such actions complement the public enforcement of antitrust law.
The main objective of private antitrust enforcement by way of damage actions is compensation for the loss caused by anticompetitive practices. Damage claims are protected by the fundamental right of property, as guaranteed by the EU Charter of Fundamental Rights, the European Convention on Human Rights and all national legal regimes in Europe. The existence of damage claims for breach of competition law strengthens the effectiveness of the competition rules and discourages agreements or practices which potentially restrict or distort competition [Court of Justice of the European Union, Courage v Crehan (2001)]. If the threat of having to pay damages is real, potential cartel members are less likely to engage in an infringement. Giving cartel victims the realistic opportunity to recover the damages they suffered will therefore also reduce the number of cartels formed.
Lessons from the US system?
The CDC approach to private antitrust law enforcement is an original European one. It is developed on the basis of, and in line with, the legal standards existing and accepted in the EU.
It is widely acknowledged that an enhanced private enforcement of antitrust law needs specific rules which differ from the general principles of civil law. Building on a comprehensive practical experience with actions for antitrust damages of more than one hundred years, the US provide private claimants in antitrust cases with a vast arsenal of special instruments, including class actions, opt-out proceedings, treble damages, jury trial, one-way shifting of costs, pre-trial discovery and contingency fees. At first glance it seems nothing but consequent to introduce similar instruments in Europe.
However, for constitutional and traditional reasons, and given the fear of excessive litigation, stakeholders in Europe are generally opposed to the ‘US litigation culture’. Rather, the goal is, and ought to be, to develop and strengthen a ‘European enforcement culture’ where private and public enforcement of antitrust law supplement each other in a way that there is a balance between the rights of victims and defendants and a deterrent effect of antitrust law at the same time.
Suggestions for a European Private Enforcement system
In 2008, the European Commission published a White Paper on damages actions for breach of the EC (now: EU) antitrust rules. In the White Paper the Commission offers different proposals on how to strengthen the legal framework for effectively bringing antitrust damage actions. These proposals concern, inter alia, collective redress, access to evidence, definition of damages, limitation periods, and the interaction between actions for damages and public leniency programmes. The aim was to formulate a minimum standard of rules applicable throughout the EU and thus to ensure the full effectiveness of the right to compensation, as required by the Court of Justice of the EU in Courage.
Against this background, the following pages provide an overview of legal, economic and political key issues of an effective private antitrust enforcement:
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