Abstract
Any discussion of private antitrust enforcement usually focuses on substantive law and proceedings applicable to private antitrust cases. Those elements are important, however, the efficacy of both public and private enforcement relies upon rules of law (substantive and procedural) along with their application. The latter constitutes a substantial aspect affecting the institutions which make decisions in private antitrust enforcement cases, namely the relevant courts. The enforcement of competition law is inextricably intertwined with the economy and markets. As a result, antitrust cases are demanding for non-specialist judges, who usually do not have enough knowledge and experience in the field of competition. Even if the Damages Directive has already been implemented in all EU Member States, there is still room for discussion about developing an optimal court model for the adjudication of private antitrust enforcement cases. In the aforementioned discussion the issue of the binding effect of decisions made by the European Commission (EC) and National Competition Authorities (NCAs) in private enforcement cases, as well as the experience of judges stemming from the number of cases they have resolved, cannot be missed. Bearing this in mind, the main aim of this paper is to analyse the model of competent courts operating in private antitrust cases in twenty selected countries including the US, the UK and the vast majority of EU Member States. Taking into account that a theoretically pure concept of an ideal model of relevant court operations presumably does not exist, it is essential to try to figure out what the main characteristics of the courts might be that can lead to effective private antitrust enforcement.
Highlights
Even though the Damages Directive1 has already been implemented in all European Union Member States,2 this does not mean that discussions surrounding private antitrust enforcement triggered by the work preceding the Directive have come to an end
In all fairness, it should be noted that while the judgements of the Competition Appeal Tribunal (CAT) include economic analyses encompassing a wide range of antitrust-related issues and anti-competitive practices, not every assessment of the CAT is fully endorsed by experts outside the CAT
Whereas it is hard to say that any model is ideal, certainly the UK model including specialized court dealing with antitrust litigations is worth considering23
Summary
Even though the Damages Directive (hereinafter; Directive) has already been implemented in all European Union (hereinafter; EU) Member States, this does not mean that discussions surrounding private antitrust enforcement triggered by the work preceding the Directive have come to an end. Some of the countries involved, like the US, have long standing traditions of antitrust litigation, while some others, like most EU Member States, only recently began their serious adventure into the world of private antitrust enforcement This means, in turn, that even if the directional decision has already been taken, there is still room for discussion of an optimal model of courts to adjudicate private antitrust cases. The paper covers, to the relevant extent, the binding effect of NCAs decisions as well as makes some observations on the judicial review of such decisions The latter issue is relevant when discussing the need for specialized or non-specialized courts to adjudicate antitrust litigations. The paper does not discuss arbitration as one of the potential alternatives for resolving antitrust disputes
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