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Editor: D. Daniel Sokol
University of Florida
Levin College of Law

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Wednesday, August 13, 2008

Perspectives for Private Enforcement in European Antitrust Law

Posted by D. Daniel Sokol

Christian Kersting of Heinrich Heine University of Duesseldorf - Faculty of Law provides some Perspectives for Private Enforcement in European Antitrust Law.

ABSTRACT: In April 2008 the European Commission published a "White Paper on Damages actions for breach of the EC antitrust rules" (COM2008 (165) final). This article focuses mainly on two issues: the passing-on defence and standing of indirect purchasers and the compatibility of efforts to enhance the effectiveness of private actions for damages with leniency programmes offered by the EC Commission and national competition authorities.

As regards the passing-on defence and the standing of indirect purchasers, it is argued that the EC Commission's approach in the white paper is in theory the best solution. Yet, due to practical reasons it is suggested that in principle the passing-on defence should not be accepted and that indirect purchasers should not be encouraged to sue. In order to avoid a conflict with the ECJ's decisions in Courage und Manfredi, indirect purchasers should however not be categorically denied standing but only be discouraged from claiming damages by, for example, not alleviating their burden of proof.

Regarding the compatibility of the efforts to promote private enforcement with the leniency programmes, the EC Commission's suggestion to limit "the civil liability of the immunity recipient to claims by his direct and indirect contractual partners" is not considered a viable solution. In this paper it is argued that the best way to avoid a conflict of aims is to modify the way liability is apportioned between the cartel members, i.e. between the infringers of EC competition law who are jointly and severally liable towards the victims.

German law apportions liability equally between joint tortfeasors, unless otherwise provided (section 426 I 1 BGB). This paper shows that for the apportionment of liability between joint tortfeasors, German law can take into account both the cartel member's market share (thus incorporating the EC Commission's approach because the damages suffered by direct and indirect purchasers reflect the cartel member's market share) and the cartel member's contribution to uncovering the cartel. The latter aspect leads to the suggestion that a reduction in the fine imposed on a cartel member should lead to a parallel reduction in the cartel member's share of liability as compared to the other members of the cartel. The joint and several liability of all tortfeasors, including the successful leniency applicants', towards the victims remains unchanged.

De lege ferenda, however, it also seems justified to reduce the successful leniency applicants' liability towards the victims of the cartel accordingly. This conclusion is based upon the fact that the leniency applicants give the victims something in return: the victims receive the information necessary for them to recover their damages.

This approach, that was developed using German law as an example, should also work in other jurisdictions. It is a common legal principle that joint tortfeasors are jointly and severally liable towards their victims and that the liability as between the tortfeasors is apportioned according to the circumstances of the case.

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