Monday, September 30, 2013

The European Commission's Package on Private Enforcement in Competition Cases: Introduction to a CPI Antitrust Chronicle

Andreas Reindl (Leuphana University, Luneburg) discusses The European Commission's Package on Private Enforcement in Competition Cases: Introduction to a CPI Antitrust Chronicle.

ABSTRACT: Finally—it has arrived. After roughly a decade of intense and sometimes contentious policy debate, reflection, studies, and consultations on private actions for damages in competition matters, just before the summer break the Commission published a package of measures that is designed to facilitate and, to some extent, harmonize private enforcement of EU competition law across the European Union (the "Package"). At the core of the Package is the draft Directive on damages actions in competition cases, with rules on discovery, the EU-wide binding effect of competition authority decisions, passing-on of damages, joint liability, and limitation periods (the "Directive"). The Package also comprises the Commission's Working Paper on methods to quantify harm in competition cases, and a Recommendation on collective redress for consumers and SMEs.

This CPI Antitrust Chronicle provides a timely opportunity to review the proposal and to contribute to the discussion of some of the important and controversial measures contained in particular in the proposed Directive:

  • Daniele Calisti & Luke Haasbeek provide an overview of the Directive and explain the intentions behind the Commission's initiative;
  • Jeroen Kortmann & Rein Wesseling review and critique the Directive from the viewpoint of private practitioners with experience in private litigation and discuss in particular the Directive's effects on incentives to settle disputes;
  • Sebastian Peyer examines the Directive's discovery rules, in particular with respect to discovery of leniency materials in light of European case law, and U.K. practice;Hans Friederiszick comments on the proposed solution for the pass-on defense and the calculation of interest in damages awards in light of the Commission's claim that the Directive will lead
    to a level playing field across Europe; and
  • Stefano Grassani's contribution highlights
    concerns related to the proposed rule that would make all competition authority infringement decisions binding in follow-on damages actions across the EU.

When the Commission drafts legislation in a controversial area with no prior history of EU involvement, where the Commission has no particular expertise, and where first legislative efforts might be seen as needlessly encroaching on Member State prerogatives, one can expect that not every individual provision will be warmly welcomed by all stakeholders. The diversity of views expressed in this symposium and elsewhere, including the sometimes critical reactions to the
Commission's proposal, is therefore not particularly remarkable.

What is remarkable, though, is that there appears to be no common understanding as regards the policy goals behind legislation on private competition law enforcement. In fact, throughout the many years of debate on private enforcement the Commission has not been able to develop a clear and persuasive "story" for its work in this area and "sell" it to stakeholders. As a result, the proposed Directive and, more generally, the entire Package, lack a clear and coherently implemented vision.

I will use the remainder of this introductory note to focus on this question. I believe that the absence of such a convincing "story" makes specific provisions in the Directive more difficult to understand and accept, and affects the credibility of the entire Package among stakeholders.

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