Private Enforcement of European Competition Law
On April 6 and 7, 2006 under the guidance of Jürgen Basedow, the conference titled “Private Enforcement of EC Competition Law” took place at the Max-Planck Institute for Comparative and International Private in Hamburg. Shortly before Christmas 2005, the European Commission published a Green Paper “Damages actions for breach of the EC antitrust rules”. The conference offered the opportunity for a lively exchange over the questions posed in the Green Paper. Participants included the European Commission’s Director of Policy and Strategic Support for the Competition DG, Emil Paulis, the President of the Bundeskartellamt (German Federal Cartel Authority), Dr. Ulf Böge, and approximately 80 scholars.Emil Paulis pointed out that it has not yet been decided what further steps are to be taken upon conclusion of the consultation period which commenced with the release of the Green Paper. Above all else, his presentation and the subsequent discussion addressed the aims of the Green Paper and the tension between the “more economic approach” of the European Commission and their endeavours to strengthen the private enforcement of competition law. Professor Walter van Gerven (Leuven) suggested in his presentation that the ECJ’s case law on Member State and Community liability could serve as a source of inspiration for national tort laws. In the medium term this case law could, however, not replace a codified system. Professor Hannah Buxbaum (Indiana University) provided an introduction into the American law of private enforcement and suggested that one finds more concern in Europe over the social costs of the private enforcement of competition law than in the USA. For his presentation on private enforcement of competition law in Germany, Professor Wulf-Henning Roth (Bonn) took on, among other themes, the tension existing between a “more economic approach” and private enforcement as well as the interaction of public and private antitrust enforcement. Additionally, he submitted regulatory proposals for several of the questions posed in the Green Paper. Professor Laurence Idot (Paris) familiarized participants with the latest developments in France while Professor Carlo Castronovo (Milan), from a perspective of Italian law, spoke out critically on expanding the tort law protection against cartels and believes the solution to existing problems should be drawn from, above all else, contract law. Professor Martin Hellweg (Max-Planck Institute for Research on Collective Goods, Bonn) lectured on the problem of passing-on damages from an economic perspective. In his presentation on duties of disclosure and the burden of proof in civil proceedings, Professor Rolf Stürner (Freiburg) criticised mixing rules of prima facie evidence with the duty to produce certain documents. The paramount goal of every reform ought to be appropriate rules of substantive law instead of a flight into the law of procedure. Professor Astrid Stadler (Constance) explained the various options for the design of collective actions in competition law and why only class action lawsuits are appropriate for more than only evanescent, marginal damages. In contrast, a representative action is the method of choice where only minimal damages are involved. Dr. Ulf Böge described in his presentation the new leniency program of the German Federal Cartel Authority and pointed out the disadvantages for firms applying for leniency that would arise from the strengthening of private enforcement. He argued for privileging leniency applicants over non-cooperating firms in civil proceedings. Professor Jürgen Basedow’s presentation examined the competence of the courts and the applicable law. In contrast to the preference of the Green Paper to uniformly assert the applicability of the lex fori, thereby opening the floodgates to forum shopping, he illustrated, among other points, why reference to the law of the affected market is preferable.
Consequently, the conference offered participants the opportunity to exchange with one another the private enforcement of competition law experiences they had collected as US, German, French, and Italian jurists, and to analyse to what extent European private law can serve as a source of inspiration for open legal questions. From theoretical as well as practical perspectives, the conference fostered intensive discussions on all the significant problems of private competition law enforcement: the passing on and evaluation of damages, obtaining evidence, the burden of proof, the interplay of public and private enforcement as well as international private law and international civil procedure.