WHO WILL PROTECT COMPETITION IN EUROPE?: FROM CENTRAL ENFORCEMENT TO AUTHORITY NETWORKS AND PRIVATE LITIGATION
WHO WILL PROTECT COMPETITION IN EUROPE?: FROM CENTRAL ENFORCEMENT TO AUTHORITY NETWORKS AND PRIVATE LITIGATION

Summary/Abstract: The preceding analysis deals with two types of proceedings which the Commission considers as substitutes for the traditional central enforcement of European competition law, in particular of art. 81 section 3 EC: the administrative enforcement by a network of national competition authorities and the private enforcement by civil courts. On the basis of the draft regulation in its present form and in the framework provided by the present national law and by Community law it would appear however that neither type of proceedings is a workable substitute for the traditional centralized enforcement proceedings. If the main objective of the reform is to be achieved, i. e. to maintain the overall level of competition law enforcement in Europe and to provide for a coherent application throughout the Community, substantial legal reforms have to be tackled. In particular the planned network of national competition authorities requires the following changes: § While the competence of national authorities is already triggered by some substantial effects of an anticompetitive practice within the respective country, the Community should limit the number of potentially competent authorities in a plurinational setting by appropriate rules. § The exchange of information must be obligatory and not optional; Member States should be prepared to accept this and other procedural obligations (see below), since the powers which they make use of when applying art. 81 section 3 EC are now vested in the Commission. Thus Member States may be said to exercise Community powers in a future decentralized enforcement system, and it should be up to the Community to fix the legal framework of that exercise of powers. § The duty to consult the Commission should be extended to cases where the national competition authority, after investigation, does not see a reason to interfere. § Fact-finding measures undertaken by the national competition authority on behalf of the competition authority of another Member State should not be optional, but obligatory. § The draft regulation has to be supplemented by a rule which provides for the recognition and enforcement, by national authorities, of the decisions taken by the competition authority of a Member State. § Such a rule on recognition would make the rule on the suspension of proceedings meaningful. While the duty to stay proceedings in favor of a foreign competition authority which was seized first, should be accepted in principle exceptions must be granted if the authority of the Member State which was seized second is better placed to investigate the case, if the first state does not undertake any serious investigation activities or if essential national interests of the second state so require. In case of conflict, it should be up to the Commission to either evocate the case or to make a binding decision on the competent national authority. As far as private litigation is concerned, Community action should above all pursue the objective of making third-party claims filed by victims of a restrictive agreement or a concerted practice against the participating undertakings more efficient. If that type of litigation is meant to make up for the partial withdrawal of the Commission the following changes in the law are required: o The Commission should not only allow national courts to submit requests for co-operation; it should be under a precisely framed obligation to grant that co-operation. The plaintiffs’ burden of proof relating to the existence of a restrictive agreement or a concerted practice must be eased by presumptions and obligations of the defendants to disclose information on their business practices. o Similarly the plaintiff’s burden of proof relating to its own loss and its causation by the restrictive practices should be eased. o Instead of stressing the weight of economic elements in the application of art. 81 by adopting the envisaged guidelines on horizontal restrictions the Commission should rather increase legal certainty by drafting a restatement of European competition law containing clear-cut legal rules. § - Even if those amendments are carried out it would appear highly doubtful whether private plaintiffs will take the risk of private action without a promising incentive such as the expectation of treble damages.

• Details
• Contents