A long time has passed since Advocate General (AG) Geelhoed stated in his Opinion in Manfredi that ‘private enforcement of (competition law) in Europe is still in its infancy’. One decade after the landmark ruling of the Court of Justice of the European Union (CJEU), the number of antitrust claims in national civil courts has steadily increased, though major differences exist among the EU Member States. In particular, the UK, Germany and the Netherlands have become the preferred fora by claimants in cross-border actions, while the majority of the other Member States have not recorded many antitrust damages cases. In term of remedies, however, claimants often request either injunctive relief or contract invalidation, rather than damages. Finally, industrial customers, rather than final consumers, start most of the legal actions, even in the countries where private enforcement of EU competition law is more developed. During the past decade, the EU Commission has actively promoted damages actions for breaches of EU competition rules. During this period of time, the pendulum of the policy discourse followed by the EU executive branch has swung between the goal of increasing the number of damages claims in national courts on the one hand, and the idea of establishing a level playing field among the EU Member States in terms of applicable procedural rules, in order to discourage forum shopping on the other. In the initial 2005 Green Paper, the EU Commission emphasized that damages actions should ‘deter’ competition law violations.
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Christian Koenig and Bernhard von Wendland
Regulation is the key to overcoming the tyranny of the marketplace in the pursuit of economic justice and welfare: it can prevent the abuse of economic dominance. Such abuse undermines a functioning market, the economic motor to producing welfare, sustainability and inclusiveness. Abuse of public capital is as omnipresent as the abuse of market dominance by private capital. The state can make major investments or compete with the private sector, or pick winners and subsidise them. Such interventions may be necessary e.g. to provide infrastructure. The wasteful allocation of public monies, however, can do immense harm: it can crowd out private investments, distort private incentives and help foreclosing markets. In any case, it deviates scarce funds from those who need them most. Therefore, regulation of state aid and public procurement is just as essential as regulation against the abuse of market dominance by private capital. State monopolies have been another public cause of economic exploitation until the recent past. Besides poor quality of service, consumer bondage within state monopolies used to entail much higher prices for services compared to liberalised markets in other jurisdictions. After liberalisation though, complex and well-adjusted regulation is crucial to induce functioning competition and to allocate the welfare benefits from liberalisation. Keywords: abuse of market dominance, liberalisation, state aid, states monopolies, regulation