Harmonisation of Private Enforcement in the Central and Eastern European Countries

Abstract

Private enforcement to this date has been one of the most debated and researched field in competition law. As part of the preparatory work for the development of the Antitrust Damages Directive, the European Commission commissioned a comparative study of damages actions in the region (commonly known as the Ashurst study) and found that apart from immense variations in national practice, there had been few cases in which national courts awarded damages for breaches of EU competition law. The finding of the Ashurst study discovered that private enforcement in the EU was ‘totally underdeveloped’, and that private enforcement of competition law predominantly centred in the three most claimant-friendly jurisdictions: the United Kingdom, Germany, and the Netherlands. Yet, the more recent AHRC project led by Professor Barry Rodger discovered that there has been considerably more private action claims in the field of competition law in the EU than had previously been imagined. During a period between 1 May 1999 and 1 May 2012 the project identified a total aggregate of 1268 (if to include Germany—1876) competition law cases across the EU Member States, excluding Croatia. Considerable private enforcement experience has occurred in Belgium, France, Germany, Italy, the Netherlands, Spain and the United Kingdom. In the context of private enforcement, there are differences between newer and older Member States. It has been a limited private enforcement experience in newer Member States, mainly due to their recent accession with obviously no EU judgements prior to May 2004 and January 2007 for Bulgaria and Romania. It seems that the size of the Member States in terms of both population and economy also play a role, yet, without any significant differences between older and newer Member States. For instance, newer Member States, such as Cyprus, Estonia, Latvia reported 1 case, Lithuania and Slovenia 5 and Malta 7 cases whereas older small Member States, such as Finland and Luxembourg indicated 4 cases. Hungary out of all CEE countries had the greatest number of case-law judgments, which is 15 cases. Most jurisdictions noted various reasons for a lack of private enforcement, including the complexity of cases, difficulties in obtaining the requisite evidence, insufficient experience and expertise of practitioners and judges, difficulties in calculating damages and in proving causation, substantial litigation costs, lengthy proceedings and finally awareness by potential victims of the possibility to obtain compensation for the losses caused by anti-competitive practices. Specifically, the institutional anxiety of both private parties and courts to initiate private antitrust damages claims seemed to be more visible in the newer Member States.