Private Enforcement in EU Competition Law

Abstract: Private enforcement, where victims of a competition infringement claim compensation from the infringer, has so far not played a prominent role within the EU. It has been stated that only 25 % of the Commission’s antitrust decision were followed by private damages action between 2008 and 2012. Furthermore, the major part of these claims was filed in the UK, the Netherlands and Germany. As a response to this, the Commission proposed a new directive in 2013, with the aim to facilitate private enforcement claims and in the same time protect the public enforcement mechanism. The EU situation with few private enforcement claims forms a sharp contrast to the US one, where private enforcement is the major branch of competition enforcement. Treble damages, generous rules on disclosure and favorable rules to form class actions have created an industry surrounding private enforcement, making it extremely popular in the US. The new directive as approved by the European Parliament and soon to be approved by the Council contains many solutions to the often difficult situations faced by a victim claiming compensation. In the same time it is clear the EU tries to go its own way, avoiding the generous US system. New features in the directive includes the introduction of a disclosure system where victims can apply at national courts to have the infringer release documents related to the infringement, protection of certain documents, allowing the passing-on defense, making decisions by national competition authorities binding on national courts and providing rules on joint and several liability. The path chosen by the EU threatens to not provide victims with enough incentive to claim compensation as private enforcement actions are still burdensome to conduct and may harm important business relationships. However, as victims receive new possibilities to support their claims for compensation, the new directive will really provide victims with greater possibilities to become victors in private enforcement actions.