Edited by Thomas Eger and Hans-Bernd Schäfer
Chapter 13: Private Enforcement of Antitrust Law
Roberto Pardolesi 1 THE EUROPEAN SETTING Private enforcement of antitrust law in Europe is still looking for its identity. Competition law was originally developed as an administrative tool, “a means for the state to intervene in market processes in order to achieve public goals,” following an approach dating back to the 1890s in Vienna and coherent with the received continental wisdom that a discipline intended to bar distortions of the market did not belong to the realm of private law, so that it could not be applied in regular courts (Gerber, 2009). Actually, whether private enforcement was entitled, or not, to play a role – albeit nominal – in the European Union under the 1957 Treaty of Rome is an unsettled issue: with the exception of para. 3, the original version of Article 101 and the whole Article 102 TFEU have always been directly applicable in Member States. But it is certain that in the “formative era” competition law kept being centered exclusively upon public decisionmaking: it was for the administrative authorities to take action against the evils of cartels and monopolies. Since 1973, however, the Commission has repeatedly expressed the view that private actions can provide a useful complement to its role as public enforcer. Yet, for many ensuing years it has even been unclear whether individuals harmed by a breach of European competition rules have any right to claim damages: so entrenched was the reliance on the public nature of the machinery entrusted with the application of competition law! The...
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