EU Competition Law and Policy - compal

©Ariel Ezrachi, December 2012
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domiciled in a Member State shall, whatever their nationality, be sued in the courts of that
Member State.’ (Article 2). Special jurisdiction may be established in matters relating to a
contract, in the courts located in the place of performance of the obligation in question (Article
5(1)). In matters relating to tort, delict or quasi-delict, jurisdiction may be established in the
courts for the place where the harmful event occurred or may occur (Article 5(3)).
The Relative Underdevelopment of Private Enforcement in Europe
The use of competition law in national courts may generate public value by supplementing public
enforcement of competition law and enhancing its deterrent effect. As such, it has an important
role in sustaining a competitive economy by harnessing the private parties’ economic interests to
ensure the full effectiveness of competition rules. In addition to its supplementary role to public
enforcement, private enforcement promotes the individual rights of parties by providing a
channel for corrective justice through compensation and injunctive relief. In doing so it
complements the public system and safeguards the rights of private individuals.
Three main publications shed light on the obstacles which hampered private enforcement in
Europe. The Ashurst Study, published in August 2004, provided a detailed account of the state of
private litigation in Europe at the time and identified the main obstacles and possible ways to
overcome them. (The Ashurst Study on Claims for Damages in Case of Infringement of [EU]
Competition Rules (31 August 2004)) It portrayed a gloomy picture of the state of damage
actions in Europe, at the time, and described it as one of ‘astonishing diversity and total
underdevelopment’. In December 2005, the Commission initiated a consultation process
following the publication of a Green Paper and Staff Working Paper on Antitrust Damages Actions.
(Green Paper, Damage Actions for Breach of the [EU] Antitrust Rules. COM(2005) 672 final;
Commission Staff Working paper – Annex to the Green Paper, published on 19 Dec 2005). In
these papers the Commission highlighted the significance it attributes to the development of
private enforcement as a means to promote vigorous competition. The papers focus on damages
actions, outlining the main obstacles to these actions and the range of options that may be used
to resolve them. The papers stimulated a wide ranging debate on the obstacles to, and future of,
private enforcement. This consultation led to the publication, in April 2008, of the White Paper
on Damages Actions for Breach of the [EU] Antitrust Rules. The White Paper, accompanied by
a Staff Working Paper and a detailed Impact Assessment Study, outlines the measures which the
Commission suggests in order to stimulate a balanced private enforcement regime which would
complement its public enforcement. In comparison to the Green paper, the White Paper
advances a relatively conservative package of reforms. This, although disappointing in some
respects, is a reflection of the Commission’s attempt to design a balanced reform package which
would face less resistance at national level.
In an attempt to strengthen the role played by competition law in National Courts, and as a
follow up to the White Paper on Damage Actions, the European Commission considered the
publication of a Directive on Damage Actions. The draft Directive was however withdrawn in
2009. Another initiative, which is not competition specific but is likely to play a significant role in
promoting private actions in competition cases, took place in 2011 when the Commission
launched a public consultation aimed at achieving a coherent approach toward collective redress
in Europe. The consultation set to identify the common legal principles which underpin
collective actions across the EU.