Private v Public Enforcement of European Competition Law? : Relationship between effective enforcement of the law and individual justice

Abstract

In western market economies, it is generally accepted that competition is the key point of achieving social and economic welfare. Therefore, it is necessary to protect competition and there are, basically, two main approaches to deterring such socially harmful behaviour: an administrative public enforcement by public agencies and fine proceedings or a private enforcement through litigations by private parties and especially damage claims.

But, the work will show that private enforcement of European competition law is underdeveloped, but still necessary as access to individual justice with reference to the theoretical analysis by Aristotle and other moral philosophers.

Because of the underdevelopment, the work argues in favour of a necessity to implement a general right of pre-action disclosure and access to files in the possession of the competition authorities to improve the effectiveness of private enforcement of European competition law. On the other hand, the given rights of the European Commission make its fine proceedings an effective information gathering system and thus an effective way of detecting and proving an infringement of European competition law, especially Art 101 TFEU. But, the Commission has to rely on members of cartels to apply for leniency and therefore to disclose a hidden infringement, i.e. cartel. Furthermore, an efficient leniency programme has to offer effective protection to its whistle-blowers. However, this protection policy is in conflict with an effective private enforcement because the private plaintiffs have to provide evidence of an infringement.

Recently, the European Commission gets the ball rolling again by introducing its Directive 2014/104/EU that focuses on the effectiveness of private enforcement of European competition law and especially of civil damage claims. Therefore, it is highly topical to highlight the theoretical and practical relationship between public and private enforcement and the main tasks and problems by implementing the European rules into national law.