Abstract
The transposition of Directive 2014/104 on private damages actions marks an important development in the setting up of a harmonised private competition law enforcement regime across different EU Member States. Coupled with deterrence-focused public enforcement, the European Union has taken a necessary and welcomed step towards enhancing justice for all those individuals and competitors damaged by competition law infringements. This article argues, however, that the current emphasis on balancing public and private enforcement of the European Commission focuses too little on the need and healing effects of restoration. At the same time, the Directive contains a promising restorative justice opening by virtue of its Article 18. Starting from that opening, the article will propose a more developed way forward, taking the form of the setup and development of so-called antitrust “trust funds”. Exploring the legal possibilities and limits of such funds, the article questions to what extent this approach could be a useful complementary way to overcome the limits identified. It will be submitted that, although it is legally possible to set up those trust funds under EU law, important practical questions have to be addressed prior to doing so. Having outlined the potential features and limits of this approach, the article additionally calls for more and comparative research to be performed in this area.
Highlights
Coupled with deterrence-focused public enforcement in place for a much longer time3, the European Union has taken a necessary and welcomed step towards enhancing justice for all those individuals and competitors damaged by competition law infringements
It can be submitted that taking such an approach would be a useful way to overcome the frictions and gaps prevailing in the current public enforcement-private enforcement distinction underlying EU competition law
As this paper only explores the feasibility and possibility of such trust fund solution, it does not answer all those questions, but rather chooses to flag them as issues waiting to be resolved once the choice for trust funds has been made
Summary
The transposition of Directive 2014/104 on private damages actions marks an important development in the setting up of a harmonised private competition law enforcement regime across different EU Member States. Coupled with deterrence-focused public enforcement in place for a much longer time, the European Union has taken a necessary and welcomed step towards enhancing justice for all those individuals and competitors damaged by competition law infringements. The transposition of Directive 2014/104 on private damages actions marks an important development in the setting up of a harmonised private competition law enforcement regime across different EU Member States.. Coupled with deterrence-focused public enforcement in place for a much longer time, the European Union has taken a necessary and welcomed step towards enhancing justice for all those individuals and competitors damaged by competition law infringements. Article 18 of the Directive contains an important opening towards setting up a more developed restorative justice-oriented institutional framework at EU and Member States level. By antitrust “trust funds”, the article refers to a private entity managed by public authorities tasked with setting up and developing a wide variety of restorative justice initiatives in the realm of competition law. It can be submitted that taking such an approach would be a useful way to overcome the frictions and gaps prevailing in the current public enforcement-private enforcement distinction underlying EU competition law
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