The Impact of Alternative Enforcement Procedures Under EC Competition Law on Damages Actions
TL;DR: In this paper, the authors 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 programs, commitments and settlement procedures.
Abstract: 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.
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TL;DR: In this paper, 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, explored the requirements for obtaining class certification and maintaining a class action, and analyzed a number of critical issues and inefficiencies connected to the adoption of class action as a tool for adjudicating controversies.
Abstract: 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.
7 citations
26 Jan 2009
TL;DR: In this article, the authors argue that 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, and that Member States that do not live up to the principles laid down by the ECJ should be requested to reform their systems.
Abstract: • 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.
7 citations
5 citations
30 Apr 2008
TL;DR: The procedure de non contestation des griefs, introduced 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…
Abstract: 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…
2 citations
01 Feb 2008
TL;DR: In this article, a recent study on the conditions of claims for damages in case of infringement of EC competition rules conducted at the European Court of Justice (EC) has been presented.
Abstract: 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…
1 citations
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TL;DR: In this paper, the authors discuss the theory and practice of leniency in antitrust enforcement, i.e., the granting of immunity from penalties or reduction of penalties for antitrust violations in exchange for cooperation with the antitrust enforcement authorities.
Abstract: This paper discusses the theory and practice of leniency in antitrust enforcement, i.e. the granting of immunity from penalties or the reduction of penalties for antitrust violations in exchange for cooperation with the antitrust enforcement authorities. After a description of the practice of leniency in the US and in the EU, and of its history, the paper analyses the positive effects and the possible negative effects of leniency on optimal antitrust enforcement, and the extent to which these effects can be measured. Objections of principle and institutional problems that may constitute obstacles to the introduction of leniency policies are discussed, as well as some further issues, namely the impact on the effectiveness of leniency of criminal penalties on individuals, of follow-on private damages actions, and of penalties in other jurisdictions, "Amnesty Plus," and positive financial rewards or bounties.
40 citations
36 citations
TL;DR: In this paper, the authors propose a centralized consolidation of fragmented individual damage claims for private antitrust enforcement in the EU, where the assessment of damages is allocated to a central authority, which acts as amicus curiae.
Abstract: One of the lessons of US private antitrust enforcement is that limitations on the rights of the defendant and the plaintiffs' standing to sue should not be imposed lightly. Three Supreme Court decisions in Hanover Shoe, Illinois Brick and ARC America have resulted in a complex and unwieldy system of multi-district and multi-party litigation that prevents fair compensation and has questionable merit as regards deterrence. Excluding the pass-on defence in Europe would be the first step in a similarly irreversible sequence of further corollary requirements, some of which are difficult to reconcile with the ECJ decision in Courage and may create unjust enrichment. We caution against taking this route and instead propose an alternative institutional design for the EU. The proposal involves a centralized consolidation of fragmented individual damage claims. Upon a definitive infringement in an initiating action before a national court, the assessment of damages is allocated to a central authority, which acts as amicus curiae. Depending on the span of the antitrust injury, this advisory position would most naturally be within the relevant national competition authority, or DG Competition if the infringement has Community effect. The authority conducts a public investigation and assesses the total economic damages caused by the infringement. It s consolidated damage report is offered as an advice to the court, which subsequently apportions individual damages to the initiator. Later related claims can refer to this report in consequential actions before their national courts. The procedure provides an efficient, single, consistent and complete damage estimate, while still utilizing the full detection potential of unrestricted private damage actions. It is achieving both an effective and efficient private antitrust enforcement mechanism, and compensation of actual damages to those injured by the anti-competitive acts.
27 citations
TL;DR: In this article, the authors argue that if national competition authorities and private parties accept this invitation, they are likely to face the same kinds of demands for substantial economic evidence from their national courts that the EC has faced from the Court of First Instance and the European Court of Justice in some of its most complex and challenging recent cases.
Abstract: Since the announcement in late 2002 of the Modernization Plan, and continuing in 2005 with the release of the Green Paper on damages actions, the European Commission has been committed to a significant restructuring of the EU's approach to enforcing competition laws. Under the revised system as envisioned by the Commission, national competition authorities and private parties will assume a far greater role in supplementing the work of the Commission, which for 50 years has been the predominant competition policy enforcer in Europe. The goal is not only to produce a system of shared enforcement authority, but to promote the continued evolution in Europe of a “culture of competition,” while avoiding the creation of a “culture of litigation.” If national competition authorities and private parties accept this invitation, however, they are likely to face the same kinds of demands for substantial economic evidence from their national courts that the EC has faced from the Court of First Instance and the European Court of Justice in some of its most complex and challenging recent cases. This paper asks whether national level enforcers, public and private, will have the procedural and evidentiary tools necessary to respond to demands for such economic proof. Drawing on the Commission's recent experiences, as well as lessons from the U.S. experience, it asks whether the Green Paper's treatment of economic evidence is adequate given the importance that economic proof plays today in competition law cases. It then urges the Commission to devote additional attention to identifying and advocating reforms that will more actively facilitate the disclosure, development, and presentation of economic evidence. This paper particularly questions the Green Paper's preference for the use of court-appointed experts in lieu of party-secured expert witnesses. It argues that party and court-appointed experts can perform very different functions in competition law cases and should not be viewed as substitutes. Moreover, it suggests that the Green Paper may significantly underestimate the degree to which party-secured expert economic witnesses will be necessary if national level enforcers—public and private—are to be adequately equipped to meet the burdens of proof they will face. If national enforcers systematically find that they lack the procedural tools necessary to develop the economic evidence they need to meet those burdens, they will reduce or abandon their efforts to initiate competition law actions and it will be less likely that the promise of decentralization and privatization can be realized.
27 citations