Edited by Ariel Ezrachi
Chapter 10: Private and public enforcement:complements, substitutes and conflicts –a global perspective
Competition law has become a global phenomenon. Parliaments on every continent (and on numerous islands, too) have been busily adopting com- petition laws during the last 20 years or so; but major differences in legal rules, processes and institutional structure characterise what has been enacted in the 100+ national jurisdictions that now have such laws. The great majority of these jurisdictions have emphasised public enforcement based on administrative processes, which echo the civil law administrative system used by the European Commission (‘EC’) in Brussels. The idea of having private parties enforce competition law with injunctions or damage claims has generally been absent from these newly enacted competition laws, although the idea has been gaining some political traction among enforcers at the EC and at least a few other jurisdictions. Under the EC-type administrative model, private complaints are funnelled into the agency enforcement process in ways generally unfamiliar in the antitrust enforcement systems in common law countries. The administrative agency investigation is often triggered by private complaint(s) and private objectors have standing to participate formally in any proceeding that is opened. Competitors of the merging parties or of the allegedly dominant abuser can have very active roles in the ongoing (and sometimes quite prolonged) administrative investigation. Having investigated the suspected infringements, the agency then makes a non-infringement decision, or enters orders for cessation and fines, subject normally to after-the-fact judicial review.
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