Private enforcement of Art 101 and 102 of the Treaty on the Functioning of the European Union

Abstract

Traditionally, the enforcement of competition rules in Europe has been predominantly via public enforcement. Following the European Court of Justice’s ruling in 2001 in which was established the right for compensation of harms suffered by any victim of antitrust infringements, the European Commission has made proposals to create a private antitrust enforcement regime. While compensation of victims is the first and foremost guiding principle, the regime thus created, should, according to the Commission, also deliver overall better compliance with competition rules whilst creating and sustaining a competitive European economy.

In designing the system the Commission contends that it should not be grounded on similar features to that of the United States private enforcement mechanism as it has resulted in abuses of the system by private parties for private interests. A deconstructive reading of the Commission proposals, however, reveals that the envisaged regime contains more characteristics of the United States system than is explicitly presented. Furthermore, a direct comparison of common prohibitions in both systems exposes a significant lack of safeguards against misuse of the rules by private parties in the European system. This thesis also compares the envisaged European regime with the Canadian public enforcement regime. Despite the restricted cause of action accorded to private parties, the Canadian system is not immune from exploitation of the rules by private parties for self-interest. These findings call into question whether the proposed system will deliver the stated aims.

This thesis concludes that considering the costs of private enforcement, European competition law should be solely the competence of public officials. It is argued that although not formally recognised either in the literature nor in the case law of the EU courts, the Commission is already legally empowered to award compensation to victims of antitrust violations. This thesis presents suggestions for an enhancement of the current public enforcement framework.

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ORCID for Andrea Lista: orcid.org/0000-0002-4234-0914

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