Friday, November 14, 2008
Posted by D. Daniel Sokol
Wouter PJ Wils of the European Commission Legal Service has a worthwhile new working paper on The Relationship between Public Antitrust Enforcement and Private Actions for Damages. Wouter's paper takes us further in our understanding of this very important question. I will be presenting on this very topic in February at George Washington Law School based on some of my early stage empirical work on 50 years of US public and private actions for unilateral conduct.
ABSTRACT: This paper concerns the relationship between public antitrust enforcement and private actions for damages, focusing in particular on the enforcement of Articles 81 and 82 EC. In the first half of the paper, I examine the respective roles of public antitrust enforcement and private actions for damages. I argue that public enforcement should aim at clarifying and developing the antitrust prohibitions and deterring and punishing violations, whereas private actions for damages should aim at compensation. This corresponds to the approach adopted by the European Commission in its 2008 White Paper on damages actions for breach of the EC antitrust rules, and differs from the US approach which views damages actions as an instrument of deterrence. In the second half of the paper, I analyse a number of specific issues concerning the interaction between public antitrust enforcement and private actions for damages: the binding effect of the finding of a violation in public enforcement proceedings on follow-on actions for damages; access to the public enforcement file; encouragement of voluntary compensation through fine rebates, as a condition for leniency, or as part of settlements; punitive damages; private demand for public enforcement; the impact of private actions for damages on substantive law; and their impact on leniency.