A practitioner’s thoughts on the Commission’s proposal for the Directive on antitrust private enforcement rules is inevitably biased by the ideas that he may have developed as to the desirable policy objectives that such an instrument should pursue. My own views may be even more biased, given my contribution to the 2005 Commission’s study on the conditions for bringing antitrust damages claims.
With this in mind, my very first reaction to the proposal has been one of disappointment. Why this? Because the proposal seems to have definitely taken the direction of affirming the supremacy of public enforcement over private enforcement. In the diplomatic language of the Commission, the first goal of the Directive is that of optimizing the interaction between public and private enforcement. However, when translated into the proposal’s specific norms, the implementation of this principle has resulted inter alia in a striking (over)protection of leniency applicants. Impressive in this connection is the provision of article 11, which goes as far as ring-fencing the liability of leniency applicants, to the extent that injured parties will be able to revert to the undertaking which was granted immunity only when they show they were unable to obtain full compensation from the other undertakings, although jointly and severally liable with the leniency applicant itself. It appears difficult to reconcile the solemn recognition, laid down in article 2, of the absolute right of individuals to full compensation of damages suffered as a consequence of a breach of competition law rules, with such a high barrier to the full exercise of such a right. The question is whether the immunity from fines would not be enough a reward for the contribution provided by a leniency applicant. The negative indirect answer of the proposal is the outcome of a policy option, which does not appear inspired by the need to attribute the same weight to public and private enforcement.
Another point that these short notes allow me to make, is that the proposal is not ambitious enough (and probably it could not be). The declared goal is a minimalist one: that of leveling the uneven playing field as regards actions for damages, which the 2005 study helped uncover and which as such may affect competition on markets in which injured parties operate. However, by embracing such a minimalist approach, the Commission seems to have given up the possibility of providing adequate tools to render private enforcement an effective instrument for unveiling competition law infringements, independently from those uncovered and sanctioned by competition authorities. Thinking of cartels, these are in fact far more numerous than those that competition authorities may effectively prosecute. A system which favors stand-alone private damages actions would help clearing the market of more distortions, than one which gives supremacy to public enforcement. The Directive’s overall structure leaves however the impression that follow-on actions will be the norm, while stand-alone actions are and will remain an exception.
Originally published on www.osservatorioantitrust.eu