Private Enforcement of European Competition Law: Quo Vadis?

Abstract

Private enforcement of European competition law is still in a state of underdevelopment. The European Commission is considering steps to facilitate claims for private damages in cases of breach of Articles 81 and 82 EC Treaty. The lack of hierarchy between the different goals of private enforcement, in particular deterrence and compensation, makes legal reforms in this area difficult. Mechanisms increasing the deterrent effect of private damages claims, such as the award of multiple damages or allowing opt-out collective actions, may conflict with legal principles prohibiting over-compensation in individual cases or guaranteeing basic rights of defence. Facilitating private enforcement also entails the risk of unmeritorious suits and may cause counter-productive interference with public enforcement schemes, such as leniency programmes. Finally, to create a ‘level playing field’ for industry in Europe, harmonisation measures are needed. One should be cautious that the ensuing harmonisation costs do not exceed the expected benefits of private damages claims for infringements of European competition law.