The European embrace of private enforcement: this time with feeling

Roger Gamble

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Given the economic damage that cartels wreak, it is unsurprising that the fundamental objective of regulators is to secure compliance through deterrence. In Europe, deterrence is achieved primarily through public enforcement. In contrast to the high-profile and aggressive approach adopted by regulatory agencies, exemplified by the massive fines routinely meted out to cartel offenders, private enforcement has been traditionally perceived as ineffectual and underdeveloped . However, recent developments in three of Europe s more august institutions - the Court of Justice of the European Union (ECJ) and the European Parliament and the European Council - is proof positive that private enforcement has come of age. The ECJ, in several important recent decisions, has been concerned to strike a balance between the demands of claimants to get access to evidence (in order to be able to properly exercise their legal right to seek compensation) and the regulators almost primal instinct to protect their leniency programmes (by ensuring that evidence provided by leniency applicants remains confidential). Further, in a recent landmark decision that increases the exposure of cartel members and thereby increases the appeal of private enforcement, the Court gave claimants the right to sue cartel members for losses suffered when non-cartel suppliers, knowingly or not, take shelter under the cartel s pricing umbrella and raised their prices - so-called umbrella pricing . Then the European Parliament, in an attempt to promote private enforcement in national courts by victims seeking compensation for losses caused by anti-competitive practices (in particular, cartel conduct or abuse of a dominant position), has approved a proposed Directive (the Directive) that sets out certain rules necessary to ensure that anyone who has suffered harm caused by an infringement of competition law can effectively exercise the right to claim full compensation for that harm... and (it) removes obstacles to its proper functioning by ensuring equivalent protection throughout the Union... . After considering the legal basis for private enforcement this paper examines these developments and assesses their effect and significance.
Original languageEnglish
Pages (from-to)469 - 479
Number of pages11
JournalE C L R: European Competition Law Review
Issue number10
Publication statusPublished - 2014

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