Interaction between Leniency Programmes and Damages Actions in Antitrust Law: Perspectives for Collective Redress

Abstract

This article addresses the effectiveness of private antitrust enforcement and its relationship with public enforcement of competition law. In light of the recent initiatives taken by the European Commission, it is suggested that soft law instruments are incapable of guaranteeing a coherent approach, especially taking into consideration the need to balance the public and private interests involved in antitrust proceedings. This is particularly evident when appraising the links between actions for damages based on Article 101 TFEU and leniency programmes. The analysis of the case law of the EU courts and national tribunals reveals the tensions between the focus on cartels and the rights of competing undertakings and consumers to claim redress. The situation is hardly satisfactory given the differences in national regulations, on the one side, and the lack of binding EU measures, on the other. Hence, as advocated by the Commission in its Work Programme 2012, it appears preferable, and in line with the principle of subsidiarity, to harmonize domestic laws in this field via the adoption of a directive based on Article 103TFEU.