Private and Public Antitrust Enforcement Live Together in Perfect Harmony? Antitrust Enforcement after the Harmonisation of Private Damages Actions

Abstract: Private actions for damages for competition law infringements has been a fiercely discussed topic in the European Union for more than a decade now. It was the famous Courage v. Crehan judgment from 2001, where the Court of Justice for the first time expressly stated that ‘any individual’ has the right to claim damages for a breach of EU competition law. Following the Green Paper in 2005, in 2008 the Commission issued the White Paper, which entailed a number of measures to be taken in order to overcome the current ineffectiveness of antitrust damages actions and to ensure that all victims of infringements of EU competition law can fully be compensated for their harm. In addition to addressing the procedural obstacles faced by litigants, the White Paper also included measures, which would form private enforcement’s relationship with public enforcement and indicate the former’s position in the overall enforcement system. It is this controversial role of private enforcement, which provided the inspiration for this thesis. The main function of private damages actions is to compensate the victims. For the Commission, however, the main function of competition enforcement is deterrence, where private damages actions contribute only little. This perception of the Commission greatly influenced the content of the proposals made in the White Paper, especially when it had to weigh the two enforcement methods against each other. There are four main areas dealt with in the White Paper, where in addition to facilitating damages claims, the Commission has also influenced the relationship between private and public enforcement. These are: the binding effect of NCA decisions, leniency, access to evidence and finally fines and damages. After having analysed these four areas, the conclusion is that the Commission’s proposals improve the potential claimants’ conditions for claiming damages, but at the same time, they also aim to ensure the dominance of public enforcement. This is especially clear in relation to leniency, where the Commission’s proposal to limit civil liability of successful leniency applicants goes directly against the principle of full compensation for all victims. Therefore, it seems that the Commission considers private damages actions mostly as adding to the deterrent effect, thus not prioritising their compensatory nature. Thus, even if the damages actions are facilitated by the measure, private enforcement still only has a secondary role next to public enforcement in the EU.