This paper reviews the legal and economic structure of the class action litigation model in the United States, as set forth by rule 23 of US civil procedure, exploring the requirements for obtaining class certification and maintaining a class action. I analyze a number of critical issues and inefficiencies connected to the adoption of class action as a tool for adjudicating controversies. The paper, then, takes into consideration the issue of private antitrust litigation in the European Union, at the moment still underdeveloped. A Green Paper recently published by the EU Commission includes proposals for the adoption of private antitrust damages litigation in the EU, but, even suggesting the possible adoption of a collective action model, never mentions class action as a viable solution. I consider some of the questions raised by the EU Commission in the Green Paper. Relying on the fact that US courts have repeatedly stated that antitrust controversies are suitable for class action treatment, I consider whether the US model of class action litigation might provide, although in an amended version, a satisfactory answer to the problematic issues raised by the Green Paper and represent an efficient tool for the private enforcement of antitrust law in the European Union.

A Class Action Model for Antitrust Damages Litigation in the European Union

• Those who have suffered economic damage because of someone else’s illegal activities should not only have the right, but also a realistic prospect of actually getting compensation. Member States that do not live up to the principles laid down by the ECJ should be requested to reform their systems. Other than that we feel subsidiarity should apply, due to Member States’ procedural autonomy, the diversity of legal traditions, and the delicate balance of national civil justice systems.

The White Paper on Damages Actions for Breach of the EC Antitrust Rules

European Community Law: Competition

La procedure de non contestation des griefs, introduite en droit francais de la concurrence en 2001, est un instrument cle de la panoplie d'outils d'intervention a la disposition du Conseil de la…

La non contestation des griefs en droit français de la concurrence : Bilan et perspectives d'un outil pionnier

I. Introduction : The question of private enforcement. Opposite Trends ? 1. A recent study on the conditions of claims for damages in case of infringement of EC competition rules conducted at…

EU antitrust private enforcement : A useful tool for deterrence or abuse ?

I took the distance learning Postgraduate Diploma and MA at King’s College London during the academic years 2007/2009. 
My dissertation considered the interaction between public and private enforcement of the competition rules, and in particular the implications for private actions of alternative enforcement procedures – i.e. leniency programmes, commitments and settlement procedures. 
In the drafting of what would become Directive 2014/104/EU on antitrust damages actions, this issue raised complex policy problems: the European Commission was, in principle, in favour of more private claims for damages, and did not want a system of settlements to render private actions more difficult. 
In 2009, this dissertation took part to the debate: it surveyed a range of evidential, procedural and substantive issues, and expressed opinions on how best to reconcile the settlements procedure and the position of claimants in civil litigation. 
In the first part, the dissertation analyses the context in which the studied interaction materializes by: underlining the main goals and characteristics of the three alternative enforcement procedures; emphasizing briefly the main goals and current issues of damages actions; presenting the key recommendations of the Commission White Paper; and assessing the tension between alternative enforcement procedures and . 
In the second part, the dissertation analyses and assesses the solutions offered by the Commission White Paper to find a balance between alternative enforcement procedures and private enforcement by: identifying the theoretical and practical obstacles to damages actions that alternative enforcement procedures imply; and assessing, in relation with alternative enforcement procedures, the solutions identified in the Commission White Paper. The proposed solutions were often insufficient to remove obstacles to the development of damages actions 
This research was presented and discussed with DG COMP and to university professors. 
Member States needed to implement Directive 2014/104/EU on antitrust damages actions in their legal systems by 27 December 2016. 
In 2017, the impact of alternative enforcement procedures on damages actions is still being discussed and I have been asked to publish this dissertation to help feeding the reflexion of competition law specialists. I would be delighted if such was the case.

Hugues Parmentier

Papers

The Impact of Alternative Enforcement Procedures Under EC Competition Law on Damages Actions