Regulating Corporate Behaviour through Collective Claims in the EU and US
Chapter 1: Setting the scene: European debates on collective redress in competition law
The viability and the feasibility of private enforcement of the EU Treaty competition rules (that is, Articles 101 and 102 Treaty on the Functioning of the European Union “TFEU” has been a “hot topic” for the European Commission as well as for the wider EU “legal community” for a number of years. These actions were initially envisaged as a means of supplementing the activity of the Directorate-General (DG) for Competition, at the time “overwhelmed” by its “exemption monopoly” under the old Implementing Regulation, by catching alleged infringements with which the Commission could not deal, due to the lack of “Community interest”. It was only in 2001, with the Crehan preliminary ruling, that the Court of Justice of the European Union expressly recognized a cause of action for those aggrieved by the adverse consequences of cartel and, later, anti-competitive behaviour generally. Today, especially as a result of the Manfredi judgment, this cause of action is recognized to any person who can demonstrate to have been “injured” because of an infringement of the Treaty competition rules, thus paving the way for judicial proceedings to be commenced by a wider category of parties than the one envisaged in Crehan. However, more than ten years since Crehan, the take up for civil actions brought either to claim damages or to seek injunctive relief against those responsible for anti-competitive behaviour having an “appreciable effect” on the trade among Member States has been very limited.