Private Enforcement Of Competition Law Research Articles

PROVING ANTITRUST DAMAGES IN CIVIL PROCEEDINGS – The Compatibility of Serbian Law with Directive 2014/104 –

Private competition law enforcement has been a recent phenomenon in the European Union. In the past, the EU law and member states’ national laws lacked elements that contributed to the preponderance of private enforcement in the United States, such as treble and punitive damages, the procedural right of a damaged party to request discovery of evidence, collective actions, etc. The interest in private enforcement of competition law has gradually increased after Regulation 1/2003 authorised national courts to implement Articles 101 and 102 TFEU, the EU courts established private enforcement principles, and Directive 2014/104 (Antitrust Damages Directive - ADD) laid down rules to facilitate proving competition law violations and damage resulting from them. The US model evidently inspired the EU legislator. At the same time, ADD attempted to balance the private interests of injured parties and the public interest for effective public enforcement. Specific ADD provisions instigated a public debate concerning their reach and alleged confrontation with general legal principles. Even though member states have taken comprehensive measures to implement ADD, national courts need to search for an equilibrium between private and public interests. Therefore, the full effect of Directive 2014/104 is yet to be seen. Private enforcement of competition law in Serbia is still in its initiation phase. The Serbian Competition Protection Act 2009 proclaimed the right of damaged persons to bring actions for damages, even though this right has already existed under the general rules of civil law. The Competition Protection Act failed to stipulate material conditions and procedural rules that would facilitate private enforcement. The Serbian legislator has not yet taken steps to transpose ADD into national law. This paper first analyses the development and principal features of the US and EU private enforcement models. After that it focuses on the ADD provisions expediting evidence collection and damage assessment. The second part of the paper analyses Serbian tort and civil procedure rules relevant to bringing actions for antitrust damages and case law on antitrust damages. The author concludes with proposals for Serbian legislators to harmonise national law with ADD.

Article: Public Compensation for Private Harm: Fair Funds for Consumer Competition Law Redress

This paper discusses the use of the concept of Fair Funds for consumer competition law enforcement from an EU perspective. With such Fair Funds, the US Securities and Exchange Commission distributes collected fines and disgorged profits to compensate victims of securities law violations. The paper explains the use of Fair Funds in US law, highlights similarities, and adapts the concept for use in European competition law enforcement. It places an emphasis on the usefulness of such a concept against the role of consumers, but the conclusions can equally be drawn for small and medium enterprises’ private enforcement or private enforcement of competition law in general. It shows the advantages and disadvantages of including a system of Fair Funds. The paper argues that Fair Funds can serve as an alternative form of compensation, particularly for large groups of individual victims harmed in a small amount, such as consumers, with that overcome the lack of a harmonized collective redress system on EU level, and improve the coordination between public and private enforcement. private enforcement, consumers, collective redress, damages, compensation, fines, disgorgement, US, EU, financial law

Reflections on the intersection between economic and legal measures of pass-on in the context of competition litigation

The right to compensatory damages and the principle of effectiveness are important legal principles shaping the private enforcement of competition law across the UK and EU. However, the issue of pass-on of loss gives rise to potential tensions in the application of these principles. Where the effect of an infringement is passed on and dissipates broadly across the downstream economy, courts are left with a choice between over-compensating a direct claimant (who has passed on all or some of an overcharge) or waiting for a nebulous group of downstream claims (by final consumers) that may not materialize. Pass-on also creates problems of consistency between claims at different levels of the same value chain in which different information may be available, different methods of calculating loss may be applied, and different answers reached. This article provides some economic reflections on these challenges. It concludes that there is no single economic framework or methodology available that avoids these tensions, and procedural innovations that allow multiple levels of the value chain to be considered in a single process are likely to be needed if the principles of compensation and effectiveness are going to continue to be applied.

Private Enforcement of Competition Law. Diversified Effects of Haphazard Harmonisation

Private Enforcement of Competition Law. Diversified Effects of Haphazard Harmonisation

The challenges for private competition law enforcement concerning anticompetitive conducts in digital markets

The paper reviews literature on theories of harm in digital markets, and the specific difficulties in quantifying the damage in private enforcement of competition law. The development of a tentative case-law on private enforcement in digital markets in the European Union is studied next, in comparison to the US antitrust practice, differentiating between businesses or consumers filing damages claims. Finally, the paper raises the specific issues posed by the digital economy for competition law claims for damages, and explores the idea of extending the presumption of harm also to abuse of dominance in digital markets, as well as making private parties aware of cease and desist injunctions or filing for private enforcement remedies.

Leave it to the experts: A comparative analysis of competition-expert lay judges in private enforcement of competition law

This paper focuses on the procedural instrument of ‘competition-expert’ lay judges to ease damages calculations and private actions for damages for the violation of competition law in general. To this end, the paper analyses various forms of ‘expert’ lay participation that already exist in Europe. It concentrates, in particular, on commercial and intellectual property proceedings, but also delves into the few existing examples of competition-expert lay judges for private enforcement of competition law. It assesses their transferability for competition damages proceedings and attempts to test EU and national competition as well as procedural law boundaries more generally. The paper considers common grounds, advantages and disadvantages, as well as best practices in this context. It concludes with early proposals for including competition-expert lay judges in private enforcement of competition law.

Private Enforcement of Competition Law in Regulated Industries: Can Railway Undertakings Recover Excessive Railway Infrastructure Charges Under Art. 102 TFEU?

Private Enforcement of Competition Law in Regulated Industries: Can Railway Undertakings Recover Excessive Railway Infrastructure Charges Under Art. 102 TFEU?

Leave It to the Experts: A Call for Competition Expert Lay Judges in Private Enforcement of Competition Law

Leave It to the Experts: A Call for Competition Expert Lay Judges in Private Enforcement of Competition Law

Private Enforcement of Competition Law in Regulated Industries:

In DB Station & Service AG, the CJEU will have to decide on the relationship between EU regulatory law – namely Directive 2001/14 – that strives to concentrate decisions on the lawfulness of infrastructure access charges with the regulatory authority, and private damage claims based on a concurrent violation of Article 102 TFEU. The referring court – the KG Berlin – proposes that national civil courts may only award competition law damages once the regulatory authority has established the illegality of the charges under regulatory law. This article argues that the KG Berlin thereby misconceives the hierarchy of norms under EU law and fails to recognise the rights conferred upon individuals by the EU competition rules. Keywords: private enforcement, regulated industries, railways, infrastructure, Article 102 TFEU

Private enforcement of competition law in Germany and the Netherlands

Private enforcement of competition law in Germany and the Netherlands

Penerapan Private Enforcement Dalam Penegakan Hukum Persaiangan Usaha Di Indonesia, Amerika Serikat Dan Uni Eropa

The study, entitled "the Application of Private Enforcement in Competition Law Enforcement in Indonesia, United State of America and European Union" raises two problem formulations, namely: how is the provision and application of private enforcement of competition law in the United States of America and European Union, and how is the provision and application of private enforcement of competition law in Indonesia? This research is a normative or doctrinal legal research, which describes, explains and analyzes legal materials that refer to the laws and regulations in Indonesia, the United States of America and European Union. Analysis of legal materials uses a qualitative descriptive approach, which is carried out by collecting legal materials, qualifying them, connecting theories related to research problems, drawing conclusions to determine the results and recommendations. The results of this study indicate that the occurrence of business competition law vacuum in Indonesia is related to the implementation of private enforcement of competition law. Thus, the authors explain the conditions and application of private enforcement of business competition law in effect in the United States of America and the European Union as well as alternatives that can be used in terms of implementing private enforcement of competition law in Indonesia based on legal principles in force in Indonesia.

Leniency and Damage Liability for Cartel Members in Brazil

Abstract A recent debate on leniency policies is the interplay between the public and the private competition law enforcement. The lack of a well-established set of rules regarding damage claims may be harming the effectiveness of the Brazilian Leniency Program, either by discouraging the wrongdoers from applying for leniency in already formed cartels or by not being threatening enough to deter the cartel formation. The paper objective is to analyze the best policies for leniency applicants regarding the damage liability in Brazil. We conclude that the optimal policy is providing immunity to the leniency applicant, and after that the damage claim lawsuits can be encouraged with no undesirable effects. Extensions confirm the following: the immunity is even more effective when there is risk of betrayal; the immunity is the best policy in the case of ex-post leniency; the immunity is the optimal policy when there is no bankruptcy, otherwise the applicant liability should be the minimum necessary to avoid the bankruptcy; immunity regarding criminal sanctions for individuals is the optimal policy; for international cartels, the optimal policy is a combination of immunity regarding damage claims in all jurisdictions. JEL codes: L13; L41; L44

Collective Actions for Infringement of Competition Law

Summary This article deals with the legal instrument of collective actions for competition law infringements. The text touches upon the pros but also cons of this concept interpreted usually as the boost needed for private enforcement of competition law, yet bringing also risks of selective protection of competition and even bullying competitors. The article provides illustration of the struggle between the effort to make collective actions and thus the private enforcement of competition law in general more attractive in the light of the blooming U.S. model and the concurrent legislators´ will to refrain from the most negative features of the model mentioned. An insight into the hitherto soft and hard law initiatives in the area of collective actions in the EU and the Czech Republic and their interplay with competition law is offered.

Legal Obstacles to Private Enforcement of Competition Law

Private enforcement of competition law serves many important goals, including deterrence of future anti-competitive harms and correction of past harms. This article sheds light on several potential legal obstacles to such enforcement which could prevent it from achieving its goals. The examples mainly build upon the experience of different jurisdictions with private litigation. It also suggests some possible solutions for dealing with or limiting such obstacles. As Europe is in the early stages of applying its Damages Directive and creating a private competition law enforcement regime, recognising – and possibly avoiding – obstacles to efficient private enforcement is both timely and important.

Antitrust Damage Claims: A View From Efta Court

Articles 101 and 102 TFEU have become a pattern for competition rules provided in Articles 53 and 54 of the EEA Agreement, which entered into force on 1 January 1994. Both EU competition law and EEA competition law can be enforced before national courts. Lodging damage claims in the EU was facilitated by Directive 2014/104/EU. The so-called Antitrust Damages Directive was highly inspired by the jurisprudence of the Court of Justice of the European Union. Although Directive 2014/104/EU has not been incorporated into the EEA law, damage claims resulting from violations of EEA competition rules are judged by national courts in the EEA Member States, which is why some aspects of private enforcement of competition law have become a point of interest for the EFTA Court, being – together with the Court of Justice of the European Union – the EEA court. Firstly, the article aims at checking if the EFTA Court jurisprudence on antitrust damage claims follows the guidelines formulated in the case law of the Court of Justice. Since the positive answer to this question is highly probable, secondly, the article aims at identifying the extent of the impact of EU jurisprudence in private enforcement cases on judgments of the EFTA Court. The article concludes that the EFTA Court’s activities regarding antitrust damage claims follow the route indicated by the Court of Justice of the European Union. Four identified judgments regarding – directly or indirectly – antitrust damage claims (Nye Kystlink, Fjarskipti, Schenker I and Schenker V), delivered by the EFTA Court, seem to strengthen its position as an institution that is able to guarantee a coherence between EEA and EU competition law. EFTA Court’s judgments in private enforcement cases are also a point of interest and reference for EU Advocates General and can become an inspiration for both EU and national case law.

Private Damages Actions in EU Competition Law and Restorative Justice: Towards a New Streamlined Institutional Framework?

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.

‘Responsive’ Remodelling of Competition Law Enforcement

Abstract Over the years, regulators have sought to improve the effectiveness of both private and public competition law enforcement. In EU competition law, recent debates have concerned damages actions for competition law violations and the empowerment of national competition authorities. These debates are often premised on a clear dichotomy between public and private competition law enforcement, each pursuing a distinct set of aims. This article employs a novel holistic approach, which is informed by the theories of responsive regulation and restorative justice, and argues in favour of a ‘responsive’ remodelling of competition law enforcement. Such a ‘responsive’ remodelling advocates flexibility in enforcement mechanisms, with the consensual participation of the affected stakeholders and the adoption of remedies to restore the inflicted harm. The article discusses the current system and its respective aims and problems, and highlights an emerging hybridisation of remedies. Building on this emerging practice, it then constructs the ‘responsive’ remodelling benchmark for effective compliance. It discusses how this benchmark can inform competition law enforcement and it considers its potential to increase compliance, countenance various legitimacy and accountability concerns, increase consumers’ access to markets and bring benefits to the affected parties.

Does the EU's Drive for Private Enforcement of Competition Law Have a Coherent Purpose?

The Competition Laws of the European Union (‘EU’) have been a major influence on countless jurisdictions around the world, but their strength as a public enforcement regime have always contrasted with a perceived absence of private enforcement. Private parties cannot bring an action for damages or injunctive relief before EU courts. They can only make a complaint to the European Commission or National Competition Authority, to investigate an infringement of competition law, on their behalf. Therefore, a party’s ability to recover damages falls on the national tort and civil liability rules of each Member State. Although most European legal systems can broadly be described as belonging to the civil law tradition, there are significant differences in procedure and legal culture when it comes to recovering damages. It is also important to remember that the EU has continued to grow in the last fifteen years, with the accession of ten new Member States in 2004, and a further three between 2007 and 2013. These include states that have made a rapid transition from centrally planned economies and Communist-era legal systems.

The Case for Harmonizing Fault in Private Enforcement of EU Competition Law

In this article we explore fault as it has traveled from public enforcement to private enforcement of EU competition law and beyond the implementation of the Damages Directive. We demonstrate how differences between national tort law systems have prevented harmonization of fault in the Damages Directive. This leads us to point out the current different fault standards across Member States in private enforcement of competition law, ranging from strict liability, to a rebuttable fault presumption to a fault requirement. This variety of fault standards induces forum shopping between Member States, and has a negative effect on the European Internal Market’s level playing field. Given these adverse effects, we argue for harmonization of a fault standard in private enforcement of competition law, and find that harmonizing towards a rebuttable presumption of fault both is best in line with fair trial provisions, and best observes the effectiveness of EU competition law.

Beyond Skanska. The Court of Appeal of Leeuwarden’s Latest Decision in TenneT

The Court of Justice’s decision in Skanska constituted a milestone in the development of the rules on private enforcement of EU competition law. The Court settled the widely disputed question as to whether or not the concept “undertaking” has the same scope under the rules relating to public and private enforcement of competition law. The Court answered this question positively and deduced that the theory of economic continuity developed in EU competition law also applies in cases for damages caused by the infringement of the EU competition rules. Shortly after the Skanska decision a Dutch Court of Appeal deduced from the Skanska decision that a subsidiary can be held liable for damages caused by an infringement of the competition rules by its parent company. The case note discusses whether this indeed follows from the Skanska decision in light of the Court of Justice’s earlier case law on the theory of parent company liability and it relationship to the concept “undertaking”.