The Role of Private Enforcement within EU Competition Law

2014 ◽  
Vol 16 ◽  
pp. 143-187 ◽  
Author(s):  
Niamh Dunne
Keyword(s):  
Hard Core ◽  
Competition Law ◽  
Case Law ◽  
Private Enforcement ◽  
Public Enforcement ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
Competition Rules ◽  
The Right

AbstractPrivate enforcement is an increasingly prominent element of EU competition law. The forthcoming Directive on damages actions aims to strengthen and, to a degree, harmonise procedures for private competition litigation, while recent case law of the Court of Justice reaffirms the centrality of the right to claim compensation for losses stemming from breach of the competition rules. Moreover, this right has been presented as an essentially unitary one, whereby any victim of any type of competition infringement has, in principle, the right to claim damages. This chapter reviews the evolving framework, and considers, specifically, the role for private enforcement within the overall system of EU competition law. Taking into account the Commission’s efforts to facilitate and increase private enforcement, the emerging EU public enforcement framework, as well as the substantive EU competition rules more generally, this chapter argues that, contrary to the rhetoric, private enforcement is a mechanism best adapted, and arguably most appropriate, for use only in the context of hard-core cartels. It is further suggested that the gap between rhetoric and reality is not problematic as such, yet difficulties may arise insofar as these divergences conflict with the principle of effectiveness.

scholarly journals Reshaping Liability – The Concept of Undertaking Applied to Private Enforcement of EU Competition Law

2021 ◽  
Author(s):  
Benedikt Freund
Keyword(s):  
Competition Law ◽  
Case Law ◽  
Private Enforcement ◽  
Minor Importance ◽  
The European Union ◽  
Public Enforcement ◽  
National Courts ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
Recent Developments

Abstract It is undeniable that a ‘follow-on damages claim culture’ is on the rise in Europe. The case-law of the Court of Justice of the European Union has been acting as a catalyst to ensure that victims of cartel infringements are in a position to effectively enforce their right to damages. Although the path followed by the Court removed many obstacles for cartel victims it has also departed from traditional concepts of tort law, including liability for civil damages. By extending concepts which were traditionally confined to public enforcement to private enforcement – such as the notion of undertaking – national courts will be faced with new challenges. It is inevitable that questions which were previously of minor importance in public proceedings will carry a different weight in civil litigation. This article focuses on recent developments and explores possible consequences on the imputation of liability in private enforcement of EU competition law.

Has the time come to federalize private competition law? The autonomous concept of undertaking in the CJEU's ruling in Case C-724/17 Vantaa v. Skanska: Case C-724/17 Vantaan kaupunki v. Skanska Industrial Solutions Oy and Others, EU:C:2019:204

2019 ◽  
Vol 26 (5) ◽  
pp. 720-728
Author(s):  
Csongor István Nagy
Keyword(s):  
Competition Law ◽  
Private Enforcement ◽  
Eu Law ◽  
Eu Competition Law ◽  
History Of ◽  
Considerable Impact ◽  
Industrial Solutions ◽  
The Right ◽  
Scholarly Discourse

The private enforcement of EU competition law has been in the center of scholarly discourse for almost two decades. Recently, the CJEU, with its ruling adopted in Vantaa v. Skanska and others, opened a new chapter in the history of EU competition law’s private enforcement. The Court held that the conditions of the existence of this right are questions of EU law and should be given an autonomous meaning. The judgment is revolutionary in terms of conceptualization and, as such, it is expected to have a considerable impact on substantive issues in the future. This signals the advent of a uniform regime of European ‘private competition law,’ which limits the role of national rules to the exercise of the right to compensation.

scholarly journals Antitrust Damage Claims: A View From Efta Court

2020 ◽  
Vol 3 (2) ◽  
pp. 153-170
Author(s):  
Agata Jurkowska-Gomułka
Keyword(s):  
European Union ◽  
Competition Law ◽  
Private Enforcement ◽  
The European Union ◽  
National Courts ◽  
Point Of Interest ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
Competition Rules ◽  
Damage Claims

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.

Anticompetitive Effects in EU Competition Law

2020 ◽  
Author(s):  
Pablo Ibáñez Colomo
Keyword(s):  
Competition Law ◽  
Case Law ◽  
Time Variable ◽  
Court Of Justice ◽  
Open Questions ◽  
Eu Competition Law ◽  
Competitive Disadvantage ◽  
Probability Threshold ◽  
The Impact ◽  
Freedom Of Action

Abstract This article examines the meaning and scope of the notion of anticompetitive effects in EU competition law. It does so by bringing together several strands of the case law (and this across all provisions, namely Articles 101 and 102 TFEU and merger control). The analysis is structured around a framework that considers the main variables that shape the notion in practice: the time variable (actual or potential effects); the dimensions of competition and the counterfactual; the meaning of effects and the probability threshold (plausibility, likelihood, certainty). The exercise shows that it is possible to discern a concrete meaning to the notion of anticompetitive effects. Some central questions, including the role and operation of the counterfactual and the threshold of effects, have already been answered by the Court of Justice. In particular, it has long been clear that anticompetitive effects amount to more than a mere competitive disadvantage and/or a limitation of a firm’s freedom of action. The impact on equally efficient firms’ ability and/or incentive to compete would need to be established. At the same time, some open questions and some potential areas of friction (relating, inter alia, to stakeholders’ tendency to conflate appreciability and effects) remain. These are also discussed.

5 Enforcement, Institutions, and Procedure

2012 ◽  
Author(s):  
Geradin Damien ◽  
Layne-Farrar Anne ◽  
Petit Nicolas
Keyword(s):  
Competition Law ◽  
Public Enforcement ◽  
National Courts ◽  
Eu Competition Law ◽  
National Competition ◽  
Competition Rules

This chapter discusses the enforcement of EU competition law. EU competition law is primarily enforced through a system of ‘public enforcement’, where specialized administrative institutions initiate, decide, and terminate cases. Articles 101 and 102 TFEU are enforced by competition authorities at both the European—by the Commission—and national levels—by national competition authorities (NCAs). Since the adoption of Regulation 1/2003, the Commission and the NCAs form a ‘network’ of competition authorities called the European Competition Network (ECN). A set of specific legal mechanisms have been adopted to ensure a harmonious and effective enforcement of EU competition rules amongst the ECN. In addition, national courts also offer a remedial avenue for plaintiffs seeking to invoke EU competition rules. The chapter then looks at how the Commission and NCAs process competition cases. In general, a competition case goes through four stages: detection, investigation, evaluation, and decision.

7. The Direct Jurisdiction of the Court of Justice

2019 ◽  
pp. 208-248
Author(s):  
Nigel Foster
Keyword(s):  
Member State ◽  
European Commission ◽  
Judicial Review ◽  
Competition Law ◽  
Member States ◽  
Eu Regulation ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
The Right ◽  
Interim Measures

This chapter considers the actions commenced before the Court of Justice. These include actions by the European Commission and other member states against a member state (Articles 258–60 TFEU); judicial review of acts of the institutions (Article 263 TFEU); the action against the institutions for a failure to act (Article 265 TFEU); actions for damages (Articles 268 and 340 TFEU); and the right to plead the illegality of an EU regulation (Article 277 TFEU). The chapter also considers interim measures under Articles 278 and 279 TFEU and enforcement actions arising from the Commission enforcement of EU competition law against individuals.

2. The Competition Law and Institutions of the European Union

2019 ◽  
pp. 75-96
Author(s):  
Alison Jones ◽  
Brenda Sufrin ◽  
Niamh Dunne
Keyword(s):  
Competition Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Public Enforcement ◽  
The Public ◽  
Directorate General ◽  
National Competition ◽  
Competition Rules ◽  
The Eu

This chapter sketches the history and functions of the EU and its institutions in order to set the EU competition rules in context. It then describes the competition provisions themselves and outlines the way in which the rules are applied and enforced, including the public enforcement of Articles 101 and 102 under Regulation 1/2003, the control of mergers with a European dimension under Regulation 139/2004, public enforcement by the national competition authorities of the Member States, and the role of private enforcement. It discusses the position and powers of the European Commission, particularly the role of the Competition Directorate General (DG Comp); the powers of the EU Courts; the significance of fundamental rights and the general principles of EU law in competition cases; the application of competition rules to particular sectors of the economy; and the application of the EU rules to the EEA.

LOYALTY REBATES AND ABUSE OF DOMINANCE

2018 ◽  
Vol 77 (1) ◽  
pp. 25-28
Author(s):  
Mark Friend
Keyword(s):  
Competition Law ◽  
Case Law ◽  
Analytical Framework ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
Abuse Of Dominance ◽  
Article 102 Tfeu ◽  
Missed Opportunity

THE recent judgment of the Court of Justice in Intel v Commission (Case C-413/14 P, EU:C:2017:632) deserves a cautious welcome for signalling a move to a more economics-based approach to the assessment of loyalty rebates under Article 102 TFEU, and for modulating the rigid legal presumptions that have characterised nearly four decades of case law. Yet it also represents a missed opportunity to provide a comprehensive analytical framework for one of the more unsatisfactory areas of EU competition law.

scholarly journals Information exchanges between competitors from a competition law perspective – the problem of premature exchanges of sensitive information in the context of merger control (Gun Jumping)

2018 ◽  
Vol 4 (1) ◽  
pp. 78-101
Author(s):  
Nuno Calaim Lourenço
Keyword(s):  
Specific Problem ◽  
Competition Law ◽  
Case Law ◽  
Legal Framework ◽  
Sensitive Information ◽  
Due Diligence ◽  
Market Transparency ◽  
Court Of Justice ◽  
European Court ◽  
Competition Rules

The topic of information exchanges between competing undertakings is central to competition law. These are practices that enhance market transparency and, as such, can generate significant efficiencies. However, they can also give rise to serious competition concerns, often because they afford competitors the possibility of reaching focal points of coordination. The analysis of information exchanges has traditionally taken place in the context of the legal framework that prohibits cartels. This article reviews, at first, the approach taken in Europe by competition authorities and courts, firmly grounded in the Commission Guidelines and in the most recent case law of the European Court of Justice. After discussing the relevant legal framework and the main criteria for the assessment of information exchanges in detail, the article elaborates on the specific problem that premature exchanges of information between competitors can create in the context of a merger transaction. As the competitors that they are, at least until closing of the deal, it is essential that contracting parties ensure that their due diligence exercise and the planning of the integration of their businesses are carried out in a manner that is consistent with competition rules, avoiding behaviour that can be interpreted as gun-jumping or as a cartel practice and, as a consequence, financial penalties and judicial claims.

scholarly journals Multilingualism in the EU and Consistency of Private Enforcement of Competition Law: Two Examples from CEE Countries

2017 ◽  
Vol 52 (1) ◽  
pp. 165-180
Author(s):  
Anna Piszcz
Keyword(s):  
Competition Law ◽  
Private Enforcement ◽  
Public Enforcement ◽  
Eu Competition Law ◽  
Public Versus Private ◽  
Rule Making ◽  
The Eu

Abstract This paper attempts to address the question of how multilingualism in the EU might affect the consistency of private enforcement of competition law. In the literature, there have been concerns raised about the consistency of public enforcement of competition law, so in this paper attention has shifted to concerns about consistency of private enforcement. For the purposes of this paper, a distinction is drawn between rule-making and the application of competition law. The latter falls outside the scope of this paper. The article starts by going straight into aspects of public versus private enforcement of EU competition law and consistency of private enforcement of competition law. Next, by looking at examples of national rules implementing the EU Damages Directive, the author is going to discern what challenges for consistency of private enforcement of competition law are associated with the multilingualism in the EU.

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