Regulating Corporate Behaviour through Collective Claims in the EU and US
Chapter 7: Access to justice, diffuse torts and competition litigation in the EU: where do we go from here?
The previous chapters examined the major features of the debate concerning how to boost litigation in the field of competition law in the European Union. It was argued that the harm arising from competition infringements, as an example of “diffuse tort”, often affects vast sections of society. It also requires frequently complex economic and legal assessments and consequently demands considerable investment, both in terms of financial resources and of expertise, not only from litigants but also from the courts themselves. Against this background, it was argued that creating “incentives” to encourage small claimants to seek relief of their losses was of fundamental importance not only for the purpose of restoring the integrity of their interests but also to uphold the public interest goals that the competition rules set out to achieve. The European Union has been pursuing a “pro-private enforcement” agenda since 1999 when, in its White Paper, it called for greater involvement of the domestic courts in the application of the Treaty antitrust rules. As was illustrated in Chapter 1, the 2004 Green Paper on competition damages, followed by the 2008 White Paper, laid down a set of proposals designed to facilitate these claims and affecting both “substantive aspects” of them (such as, inter alia, standing, the availability of a passing-on defence and the nature of available damages) and procedural issues, among which the possibility of facilitating collective access to the courts by groups of prima facie victims featured prominently.
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