Shows how antitrust suits adversely affect the consumer by encouraging a costly form of protection for inefficient and uncompetitive small businesses. Bork sees antitrust law as a microcosm which reflects the larger movements of our society, such as the tension between liberty and equality.

The Antitrust Paradox: A Policy at War with Itself

The discussion on the normative foundations of competition law is not well-developed. Economic efficiency cannot be the final answer to this normative question. There are different concepts of efficiency with their specific problems and deficits. The discussion in economics, which is narrowed down to total welfare standard vs. consumer welfare standard, does not sufficiently grasp the complexity of the normative problems. In the paper the normative key concepts are clarified, which economists use in regard to competition policy - such as static and dynamic efficiency as well as the problem of redistribution through market power. Afterwards an alternative approach is briefly presented, which - based on constitutional economics - allows for a broader normative discussion of the goals of competition law. The decisive difference is that here the preferences (and values) of the citizens of a society are the relevant normative criterion, from which the goals of competition laws should be derived. From that perspective it is argued that it is unlikely that the citizens would agree on a total welfare standard or a pure consumer welfare standard. It might also be possible to defend the protection of certain rights of market participants as a goal of competition law as well as the consideration of notions of fairness, as long as these normative notions reflect widely-held values of the citizens. Most important is that a broader interdisciplinary discussion on the goals of competition law is necessary.

Should Competition Law Promote Efficiency? Some Reflections of an Economist on the Normative Foundations of Competition Law

The question is asked how the incentives of private parties to bring suit relate to what would be socially appropriate given the costs of using the legal system; and the answer presented in the model that is examined involves two elements. The first is that as a potential plaintiff takes into account only his own legal expenses in deciding whether to bring suit, the private cost of suit is evidently less than the social cost (which would include the defendant's legal expenses), suggesting a tendency toward excessive litigation, other things equal. But consideration of the second element complicates matters: as the plaintiff takes into account his own expected gains but not the social gains attaching to suit (which in the model is the general effect of suit on potential defendants' behavior), and as these social gains could be either larger or smaller than his gains, there is a tendency in respect to litigation that could either counter or reinforce the previous tendency.

The Social versus the Private Incentive to Bring Suit in a Costly Legal System

The European Commission published a White Paper on 2 April 2008 on damages actions for breach of EU antitrust rules. The content of the White Paper is since then being prepared to be converted into EU legislation on private antitrust enforcement. This paper presents the developments in private antitrust enforcement in Poland after 2 April 2008. It commences with an outline of EU actions in this field which act as an introduction to the more detailed analysis of recent jurisprudential and legislative developments in Poland. The latter part of the paper covers, in particular, the 2009 Act on the Pursuit of Claims in Group Proceedings and the 2011 Act Amending the Civil Procedure Code and Some Other Acts which abolishes all specific elements of commercial proceedings, including the statutory ‘non-admission of evidence’ principle. These two legal acts are assessed in order to establish whether their introduction is likely to help facilitate private antitrust enforcement in Poland and to consider to what an extent are these developments responding to the challenges outlined by the European Commission.

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Still-Unpopular Sanctions: Developments in Private Antitrust Enforcement In Poland after the 2008 White Paper

In June 2013, the European Commission issued its long-awaited policy on collective redress. The proposal is in fact about collective actions and omits a holistic assessment of other options for redress. The proposal is a Recommendation not a proposed legislation. A related proposed Directive on competition damages does not mention collective actions. The proposed framework is not a model as too many aspects remain subject to national rules and contexts. Empirical evidence from collective actions in Member States suggests that this does not herald a new dawn for litigation or redress, although it may fuel more litigation in some Member States and thus forum shopping. In threatening to introduce legislation unless Member States introduce collective actions for all types of claim, the Commission opposes the majority of the Council and seems to have overplayed its hand.

Collective Redress: A Breakthrough or a Damp Sqibb ?

textIn this thesis, insights of the law and economics literature were collected in order to develop the features of an optimal group litigation concerning the deterrence of European Competition Law violation and these were then compared to the proposals of the European Commission in the White Paper on damages actions. 

Chapter 1 and 2 provide the basis for the analysis conducted in remainder of this thesis. Chapter 1 provides an overview of the enforcement of European Competition law including the rationale of European Competition Law, the debate about private versus public enforcement in general, and the discussed legal changes to enhance private enforcement. Chapter 2 provides the economic and legal framework used to analyse the efficiency of group litigation mechanisms with regard to deterrence of competition law infringements. This structure is mainly based on economic insights and knowledge developed in the Law and Economics literature. Such an economics based approach entails a choice as to the goal to be pursued by private enforcement to be that of deterrence of unlawful conduct, in this specific case, the (inefficient) breach of competition law and the focus on total welfare. Therefore the insights of the theories on optimal deterrence are applied to the setting of private enforcement of competition law. 

Using the economic framework laid out in Chapters 1 and 2, in Chapter 3 turns to two necessarily slightly abstract forms of existing group litigation mechanisms, i.e.. collective actions and representative actions. These different actions were analysed with regard to their potential to achieve deterrence. Outcomes resulting from an initial analysis showed that the optimal group litigation mechanisms from the point of view of society at large (total welfare approach), would be a stand-alone action brought in the form of a mandatory group litigation, including all losses caused to society at large. The main arguments for that outcome are that to reach optimal deterrence, the penalty imposed on the infringer, in the form of damages to be paid, should be based on total harm caused to society, and therefore include all losses caused to all different members of society. This leads to the conclusion that the optimal group litigation should incorporate all individual losses in one proceeding, to be (cost-) efficient. Therefore, and because free riding problems can be eliminated, the optimal system would be a mandatory one, rather than opt-in or opt-out mechanism. It is shown that stand alone actions are to be preferred over follow-on actions from an efficient deterrence perspective, as only the former increase the rate of detection. This is important as it is increased detection that decreases the amount of the optimal sanction, which otherwise may be prohibitively large, and also when the availability bias leads to a greater value of the risk of detection compared to an increase in the damage awards, i.e. the imposed monetary penalties. Follow-on actions merely contribute to the amount of sanction faced by the infringer when public fines are too low to deter. However, it would be more (cost) efficient in such cases, where the public fine is too low, that the public fine be instead raised sufficiently. Therefore, the analysis continued focusing on mandatory stand-alone group actions.

In the analysis of the two abstract forms of existing group litigation systems of collective and representative actions, problems and obstacles to private litigation for damages specific to certain types of breaches of European Competition Law were taken into account. The analysis suggests that neither collective nor representative actions will be the optimal group litigation mechanism in the sense of the best group litigation to reach the goal of efficient deterrence, unless the existing systems were to be substantially altered. Problems specific to collective actions, such as the necessity of one of the victims (lead plaintiff) to become active on behalf of himself and other victims of the infringement, render that particular system of bundling similar claims into one procedure less efficient. This is especially so in those cases where the information asymmetry on the side of the victims is large. One way to reduce such problems would be to motivate the lawyer representing the group of victims to become the actual driving force and the active party. However, as the analysis shows, problems and large inefficiencies occur when the collective action is not adequately and explicitly designed to have a lead lawyer, rather than a lead plaintiff. Similar outcomes result in the analysis of representative actions brought by associations on behalf of the victims. 

One particular necessity crystallised out of this analysis: the incentives given to the acting agent need to be adequately taken into account and designed in any form of group litigation. In cases where typically individual victims (such as end consumers) will not be the acting agent themselves, this insight has large implications for other goals which one may pursue, such as complete compensation of individual losses of these victims. This important insight is the corner stone of the idea of a market based approach to private enforcement, where agents compete with each other for detection and litigation of competition law infringements. As has been shown, such a market may heal many of the problems and inefficiencies that would remain in the two stylised forms of existing mechanisms described before. Such a market with competing enforcement agents would, however, face similar problems as those unearthed in the discussion of the economic analysis of competition in research and development. Both are characterised by large upfront investments that are necessary in order to gain profits that are highly uncertain. Therefore, under a first-come, first-served mechanism, there will be many resources wasted in the competitive process. Solutions to these market failures presented included the use of auctions for the right to litigate after detection of a certain infringement has taken place. This solution would not only increase the efficiency of the market idea in general, but also those of other systems of collective actions or representative actions when characterised by strong competition and races to the courts. 

After the features of the theoretical optimal system of group litigation with regard to deterrence were determined, the insights gained are used in Chapter 4 to compare and discuss the efficiency of the Commission’s proposal against this benchmark. The analysis shows that the proposed mechanisms do not reach the potential efficiency of the theoretical optimal solution developed in the previous Chapter. This result was no surprise, as the starting point or goal to be achieved though private enforcement in the Commission’s point of view, is presumably not deterrence - at least not the dominating one. Moreover, while the theoretical analysis in Chapter 3 focuses on stand-alone actions, the Commission wants to encourage follow-on actions in addition to stand-alone actions. The examination nevertheless highlights the inefficiencies, necessary trade-offs, and some of the costs imposed on society should those particular mechanisms suggested by the Commission be chosen. These considerations are also relevant for follow-on actions and for achieving other goals. A discussion of the goals other than deterrence also shows that even these goals may not be achieved to the highest degree possible. After all, the choices made by the Commission can be interpreted to stem from compromises made in the issues (e.g. the goals) themselves and in the political arena (e.g. taking harmonisation and implementation costs into account).

The fifth Chapter illustrates the basic features of three selected legal systems, i.e., the group litigation mechanisms as developed in the US, UK and Germany. These are then compared to the features of the theoretical optimal solution developed in Chapter 3. As these existing mechanisms deviate substantially from the theoretical benchmark, they are unlikely to achieve the optimal deterrence results the optimal group litigation mechanisms are argued to achieve. However, the stark differences between the developed systems and their experienced effectiveness and difficulties provide some partial support to the insights gained in the theoretical part of Chapter 3. In very broad terms, it seems that less attention was paid to the question of who would actually have incentives to become active under the current systems, and which problems might occur and what possible regulative remedies to these might be enacted, the less effective the systems turned out to be. This outcome would also hold, if the goal to be achieved would be anything other than deterrence, for example corrective justice as compensation of individual victims. If the incentives structures that the economic analysis highlights are neglected neither deterrence not compensation can be achieved in any efficient or even just effective way.

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Sonja E. Keske

Papers

Group Litigation in European Competition Law: A Law and Economics Perspective