Subject-Matter, Scope and Definitions

Abstract

GENERAL CONTEXT 1. Chapter I PDD contains provisions on the subject-matter, scope and definitions used in the PDD (Articles 1–4 PDD). 2. The subject-matter of the PDD is the private enforcement of Articles 101 and 102 TFEU.2 Articles 101 and 102 TFEU produce direct effects in relationships between individuals and create, for the individuals concerned, rights and obligations which can be enforced before the national courts (private enforcement). 3. Private enforcement must be distinguished from public enforcement. Public enforcement is regulated by Regulation 1/2003,4 which contains provisions governing the powers of enforcement of the Commission, the NCAs5 and the EU Courts in relation to Articles 101 and 102 TFEU. It is acknowledged in the case law of the EU Courts that private and public enforcement interact with each other and that private enforcement “strengthens the working of the Community competition rules by deterring anticompetitive conduct as well as fully compensating those who have suffered harm as a result of the conduct”. 4. Prior to the adoption of the PDD, it was felt that private enforcement was underdeveloped and that private proceedings were uncertain and ineffective in the EU.7 The PDD therefore seeks to ensure “a more level playing field for undertakings operating in the internal market and to improve the conditions for consumers to exercise the rights they derive from the internal market (…) and to reduce the differences between the Member States as to the national rules governing actions for damages for [competition law infringements]” (recital 9 PDD). 5. The subject-matter and scope of the PDD are addressed in Article 1 PDD. Article 1(1) PDD is the central provision. The provision relies on certain defined terms and familiar competition law concepts. This triggers the immediate question whether these concepts must, for the purposes of private enforcement under the PDD, be given the same meaning as in the public enforcement of competition law.