Enforcement

This chapter studies the rules governing the enforcement of the duties imposed on directors, distinguishing between private and public enforcement. Directors owe their duties to the company and so the company is responsible for enforcing these duties. The law prefers such litigation decisions to be taken by the company through its normal process. The courts only interfere if that process cannot be made to work independently of the wrong-doers. It is unlikely for a derivative claim to succeed against the wishes of an independent majority and so it is right to observe that the shareholders are the main focus of the law. But here too the law is more nuanced and integrates the interests of minority shareholders and creditors. The duties of the directors are also enforced through the means of public law. The chapter then shows that public law sanctions particularly attach in relation to duties that enhance the interest of third parties interacting with the company. This leads to the conclusion that these interests are at least formally better protected than those of the shareholders.

Suspension of executive acts in the constituent entities of the Russian Federation as a state coercion measure

The article contains analysis of one of the least studied public enforcement measures which is suspension of acts of the higher official (the head of the highest executive body of the state power), executive bodies of the Russian Federation constituent entities.The author focuses on the presidential decision to enact the public enforcement measure that is considered in the presented article, in particular, the form of the legal act of governance which implements that presidential decision, the wording of the name and the content of such a legal act is under review. It is shown that neither legislative regulation nor enforcement practice is perfect when it comes to the sphere of federal relations.Furthermore, the presented article addresses such issues as normativity and legal certainty of decrees and orders of the Head of State which implement the presidential decision to suspend the act of the executive body of the Russian Federation constituent entities.The historical and legal part of the subject of study is presented by statistical data that makes some corrections to the usually reported data considering the number of legal presidential acts that were mentioned.

7. Articles 101 and 102: public enforcement by the European Commission and national competition authorities under Regulation 1/2003

This chapter explains the public enforcement of Articles 101 and 102 by European Commission and the national competition authorities under Regulation 1/2003. It begins by describing the Commission’s powers of investigation and enforcement, including its power to accept commitments, its leniency programme, the cartel settlement procedure, and its power to impose financial penalties. It then discusses the operation of Regulation 1/2003 in practice, with particular reference to the European Competition Network (‘the ECN’) that brings together the Commission and the national competition authorities of the Member States (‘the NCAs’) and the ECN+ Directive that strengthens the powers of the NCAs. The chapter concludes by providing a brief account of judicial review of the Commission’s decisions.

10. Competition Act 1998 and the cartel offence: public enforcement and procedure

This chapter describes the system of public enforcement under the Competition Act 1998. This chapter begins with a consideration of the way in which inquiries and investigations are carried out under the Competition Act. It briefly considers the position of complainants to the CMA, followed by a discussion of the extent to which it may be possible to receive guidance from the CMA on the application of the Act. The chapter then describes the powers of the CMA to enforce the Competition Act, the criminal law cartel offence and the provisions on company director disqualification. It concludes with a discussion of concurrency, appeals under the Competition Act and the Government’s review of the operation of the Competition Act between 2014 and 2019.

8. Public enforcement of EU law (Articles 258–260 TFEU); review of legality and damages (Articles 263, 265, 268, 277 and 340(2) TFEU)

This chapter focuses on direct actions before the Court of Justice. It is divided into two sections. Section I deals with direct actions relating to public enforcement of EU law between the Commission and Member States (Article 258 TFEU) and between Member States (Article 259 TFEU). The financial consequences of failure to remedy infringements are also covered (Article 260 TFEU). Section II deals with actions challenging the legality of binding institutional acts (action for annulment, Article 263 TFEU); action for failure to act (Article 265 TFEU); and the plea of illegality (Article 277 TFEU). It briefly examines the action for damages against EU institutions (Articles 268 and 340(2) TFEU), a Treaty-based action from which parallels can be drawn to the evolution of state liability, through the Court’s case law.

Human Rights and the UK Competition Act

In Chapter 9, Arianna Andreangeli discusses the approach adopted in the UK towards questions of human rights compliance in UK competition enforcement processes. It examines the nature of competition proceedings in light of Article 6 of the European Convention on Human Rights and the implications that that issue has for the fairness standards applicable to those proceedings. It is argued that while the recognition that competition cases may have a ‘criminal nature’ does not justify the wholesale extension of all the safeguards that the Convention reserves to criminal cases, it nonetheless means that investigated parties are entitled to some basic protections that Article 6 ECHR enshrines. The chapter explores the Competition Appeal Tribunal’s powers of review of infringement decisions and suggests that at the root of the conferral of a power of scrutiny ‘on the merits’ is the need to ensure that the public enforcement competition proceedings are ‘human-rights proofed’. It concludes that, while demands of effectiveness in the application of the UK competition rules cannot be overlooked, maintaining the CAT’s rigorous review role for competition decisions is indispensable for compliance with human rights standards and for the integrity and reputation of the UK competition framework.