Breaching the EC Competition Law and Private Action for Damages – Race to the Bottom or Improvement of the Efficiency of Enforcement?

Abstract

The EU Competition Law and its central and so uniform enforcement by the EU Commission and the ECJ have taken the important part in the expansion of the number of companies, business, economic growth, and in the effective functioning of the other EU policies, including the formation of the European Internal Market. With changes of the EC Competition policy and so giving the greater importance to the economic efficiency in assessing the potential breach of the EC Competition Law and, at the same time, the decision of the EU Commission to focus primarily on the hard-core cartels have lead to the, so called, modernization of the EC Competition Law. By enabling national competition authorities and national courts to judge upon actions preventing, restricting or distorting the EC Competition Law, without at the same time considering that the EC Competition policy is not merely a policy of promoting competitiveness and consumer welfare, without considering that the Member States have different attitudes towards which policies should be preserved in the greater extent, without considering that the law regulating the enforcement procedure in the Member States varies, that there is not established the fully cooperation between national courts and national competition authorities in this matter, and that there is not preserved the uniform level of legal certainty and protection of those being injured by anticompetitive practices, the questions that rise up are the following. Where, i.e. in which country, the party injured could sue for damages? Is there possible to bring the tort action on the basis of the principle of the most convenient forum? Is it possible to avoid the situation in which the injuring undertaking could be the party in the proceedings going on in more than one Member State at the same time? How the party claiming damages could efficiently prove the anticompetitive action if the part of it is taking place within another jurisdiction or the evidence of anticompetitive effect is located within the territory of the other Member State(s)? How to solve the situation in which the outcome of the case could differ depending on the country where the proceeding is taking place? How to enforce the final decision in the case where injuring undertaking is performing anticompetitive actions outside the jurisdiction of adjudicative authority causing anticompetitive effects within it? How to enforce the final decision if undertaking’s assets are located within the other Member States’ jurisdiction or even outside the EU? Without analyzing these issues it is hard to predict if the modernization of the EC Competition Law, in the way proposed by the EU Commission, is such that would contribute to the greater efficiency of its enforcement or would it cause that injuring undertakings would be tempted to move their activities to the jurisdiction with less strict competition policy and its laws not guaranteeing fully efficient private enforcement.