Public and Private Enforcement in European Union Food Law

What type of enforcement is the most effective to punish violations of food law or to prevent them from occurring in the first place? This article examines the question of which mix of private and public enforcement exists in European Union (EU) food law and whether this mix corresponds to the recommendations of existing social science research. Based on this research, we contend that EU-determined enforcement mechanisms differ in effectiveness across Member States. New technologies have the potential to stimulate a novel mix of public and private enforcement tools at the EU and national levels.

Private Enforcement im Beihilferecht

Zusammenfassung Während Private Enforcement im Kartellrecht seit Jahren zentrales Thema in Deutschland und Europa ist, findet das Private Enforcement im Beihilferecht kaum Beachtung. Der Beitrag will Interesse für dieses entwicklungsfähige Rechtsgebiet wecken, stellt die möglichen Fallkonstellationen vor und geht insbesondere auf Möglichkeiten und Grenzen von Parallelen zum Kartellschadensersatz ein. Besondere Schwierigkeiten wird die Schadensermittlung im Beihilferecht aufwerfen.

8. Articles 101 and 102: private enforcement in the courts of Member States

This chapter describes the private enforcement of competition law, that is to say the situation where litigants take their disputes to a domestic court or, quite often, to arbitration. It will deal with the private enforcement of Articles 101 and/or 102 as a matter of EU law, with particular emphasis on the Damages Directive. It also describes private actions for damages and injunctions in the High Court and the UK Competition Appeal Tribunal. The chapter considers the use of competition law as a defence, for example to an action for breach of contract or infringement of an intellectual property right. The chapter concludes with a brief discussion of issues that can arise where competition law disputes are referred to arbitration rather than to a court for resolution.

Acesso a documentos de acordos de leniência antitruste para fins de private enforcement no Brasil e na União Europeia

O presente artigo discute o acesso a documentos derivados de acordos de leniência antitruste, para fins de propositura de ações de reparação de danos, a partir de uma comparação entre o regime jurídico de acesso a documentos brasileiro e da União Europeia. Para tanto, realiza-se o estudo das Ações de Reparação por Danos Concorrenciais no Brasil e do programa de leniência do Conselho Administrativo de Defesa Econômica, como também do regime jurídico aplicável aos documentos entregues à autoridade antitruste pelo leniente. Ademais, observa-se as ações de reparações de danos e do regulamento dos acordos de leniência no direito da União Europeia. Conclui-se que a dificuldade na comprovação a existência do cartel implica na maior recorrência de ações follow-on, de modo que a inversão do ônus da prova de danos deve ser aplicada, para além da necessidade de acesso a determinados documentos apresentados por lenientes nas persecuções públicas.

Investment Services Regulation in Germany and Japan

This article studies the protection of retail and professional investors when financial products are sold or when investment advice is given. To this end, it clarifies the similarities and differences in the legal setting governing investment services firms in Germany and Japan, with a particular focus on a) the persons to be protected, b) information to be provided and c) private enforcement. Although regulatory structures are largely divergent in these two jurisdictions, the legal situation converges in several important points in relation to lawmaking in the European Union and the United States. Those convergences appear informative for the development of laws in jurisdictions other than Germany and Japan.

The Failure of Leniency as a Regulatory Transplant in Hungary

While leniency has become the main pillar of EU cartel enforcement, its expediency can be questioned, particularly if we consider that the vast majority of leniency applications arrive after the first dawn raids or failed cartels. Leniency can be criticized not only for uncovering only cartels that are already doomed, but also for its cartel-inducing effect, where periodic whistle blowing or the mutual threat of disclosure stabilizes anti-competitive agreements. The effectiveness of leniency policy is strongly influenced by the regulatory mix of incentives (immunity from or reduction in fines, anonymity), sanctions (criminal sentences, disqualification from public procurement), and compensatory measures (private enforcement) introduced in the given jurisdiction. However, certain extra-legal factors may also play a key role: the success of leniency policies differs across company size, whistle-blowing cultures, and awareness of leniency throughout the Member States. In our paper, we analyse Hungarian leniency policy as a legal transplant, describing its design and comparing it to the ECN Model Leniency Programme. We arrive at the conclusion that its failure in Hungary can be explained by extra-legal factors, such as market structure, leniency awareness, company culture, and ingrained attitudes towards competitors and the state.

Exclusionary Abuses

Chapter 4 deals with exclusionary abuses under the Competition Act 1998, covering both public and private enforcement cases. The analysis concerns the approach to dominance as well as tests for abuse, focusing on retroactive rebates and bundled discounts, exclusion in multi-market settings, exclusivity, most favoured nation and equivalent clauses, discrimination, and exclusionary abuses in the pharmaceutical sector. This chapter argues that, in its second decade, modern UK competition law continued a trend that was already clear in the first decade: the prohibition of abuse of dominance is applied in a more economically robust and commercially reasonable way than it is by the EU institutions - the Commission and the EU courts - and in certain other Member States. The chapter notes that the third decade of the Competition Act 1998 will see the UK develop its competition policy free from the constraints of EU law and may allow for some divergence in the approach to exclusionary abuses in the future.