Private Enforcement of EU Competition Law

Abstract

Traditionally, the enforcement of EU competition rules has been the exclusive jurisdiction of the European Commission, a regulatory system which is based on public law rules. During the last decade, two developments have reshaped the application and enforcement of competition law and policy in the EU and resulted in decentralisation and private enforcement. Since 2000, National Competition Authorities (NCA) can enforce EU competition rules in a parallel way, imposing fines, structural or behavioural remedies on companies which restrict, distort or hinder competition. Since 2003, and for the first time in the history of European legal integration, private individuals can claim damages (Article 7 of Regulation 1/2003 OJ L 1, 04.01.2003. European Commission (2005b), ‘Green Paper on damages actions for breach of the EC Antitrust Rules’, COM (2005) 672 final) resulting from the anti-competitive behaviour of companies (Case C-453/99 Courage Ltd v Crehan [2001] ECR I-6297). A notable change in the focus of the EU anti-trust regulator is evident. The consumer has been elevated to the status of a stakeholder in competition rules and is no longer regarded as the mere recipient of the effects of competition law and policy. The consumer, as the ultimate user of products and services in the market, has the power and the ability to strike back at the companies which intended to cause harm. This article illustrates the attempts of the European Commission to improve the compensatory justice in the EU Member States for breaches of EU competition rules in an attempt to enhance their deterrent effects. It then sheds light on the reasons which hold back progress. Firstly, the issue of the passing-on defence, which could mitigate or potentially negate the damages due to consumers; secondly, the limitations of collective redress as a level of action for damages and as a deterrent for cartels; and thirdly, the difficulties for quantification of loss and the amount of compensation due to consumers as a result of anti-competitive behaviour of companies. Finally, the authors show how the creation of a parallel system of public and private enforcement of antitrust rules purports to maximise compliance with the competition objectives of the EU treaties, despite criticism from many Member States that private enforcement of competition rules would create a litigation culture which would be counter-productive and negatively affect the European integration process.