Injunctive Relief and Private Antitrust Enforcement

Abstract

The paper analyses the role of injunctions in the private enforcement of competition law. Most commentators deal predominantly with damages actions and the European policy proposals only discuss the conditions for successful compensation claims. However, damages claims are likely to be the most expensive and time consuming remedy available. In many cases injunctive relief may be cheaper and, thus, be preferred by the victim. Asking the court to order the perpetrator to either cease from certain behaviour or to undertake certain actions, plaintiffs might be willing to forego compensation in exchange for a quicker dispute solution with effect for the future. The variety and flexibility of injunctive relief - injunctions can be granted on a preliminary basis or permanently, contain a prohibition or being mandatory - provides victims of anticompetitive conduct with a multi-functional tool to seek relief. The paper compares the usage of and the legal framework for injunctive relief in England and Wales and Germany. The antitrust litigation data available for both jurisdictions indicate that the use of injunctive relief in English and German courts differs greatly. Analysing the legal framework for injunctive relief, I will look at the judicial approach that is taken with respect to injunctions and the possible reason for a varying usage of this remedy.