Private Enforcement:
Increasing private enforcement of CL has been policy goal of the EC +
OFT.
Evidence there is much less use of private litigation in the UK + Europe
than in the US.
Antitrust Private US % Private
Cases
2011 475 452 23 95
2010 544 523 21 96
2009 812 792 20 98
2008 1318 1287 31 98
2007 1038 1018 20 98
On average, there are around 800 private actions per year + private
actions make up over 95% of the federal courts work.
There are no equivalent databases for the UK courts nor for antitrust
enforcement in EU.
Impression is that activity in the UK is very limited, perhaps between
10-20 cases per year, but that this may not be representative of the
situation in the rest of Europe as Peyer found signifcant activity in
Germany.
If true that there is less activity in the EU - historical legacy of a
centralised system.
Bringing such cases is costly, problems obtaining necessary
information, proving a case may be difcult+ there a number of
uncertainties in relation to the law.
Rationale behind policy of trying to encourage private actions broadly
twofold.
o First the public authorities, OFT + EC inevitably have limited
resources + information. Enforcement eforts will have to
focus on a limited number of cases. Actions by private parties
can be valuable supplement to this enforcement activity, which
will raise the chances of detection of anti-competitive activity.
Private parties will have their own motivation, which is not
necessarily aligned to the public interests.
o Secondly, although anti-competitive action damages people, public
enforcement does not provide compensation for that
damage. Without some form of private action, they would not
obtain compensation. Justification is essentially a rights based
one.
Three types of litigants can be distinguished: competitors, customers
and consumers.
The incentive on competitors to take an action against anti-competitive
behaviour is obvious, they are being damaged by the conduct or the
agreement + want it to stop. It may, however, be in the interests of a
competitor to use competition law to try and disrupt business strategy
of a rival regardless of their efects on competition.
Customers are those undertakings that buy inputs from other
undertakings, that is, they are in a vertical relationships with those
other undertakings that are involved in the anti-competitive behaviour.
Increasing private enforcement of CL has been policy goal of the EC +
OFT.
Evidence there is much less use of private litigation in the UK + Europe
than in the US.
Antitrust Private US % Private
Cases
2011 475 452 23 95
2010 544 523 21 96
2009 812 792 20 98
2008 1318 1287 31 98
2007 1038 1018 20 98
On average, there are around 800 private actions per year + private
actions make up over 95% of the federal courts work.
There are no equivalent databases for the UK courts nor for antitrust
enforcement in EU.
Impression is that activity in the UK is very limited, perhaps between
10-20 cases per year, but that this may not be representative of the
situation in the rest of Europe as Peyer found signifcant activity in
Germany.
If true that there is less activity in the EU - historical legacy of a
centralised system.
Bringing such cases is costly, problems obtaining necessary
information, proving a case may be difcult+ there a number of
uncertainties in relation to the law.
Rationale behind policy of trying to encourage private actions broadly
twofold.
o First the public authorities, OFT + EC inevitably have limited
resources + information. Enforcement eforts will have to
focus on a limited number of cases. Actions by private parties
can be valuable supplement to this enforcement activity, which
will raise the chances of detection of anti-competitive activity.
Private parties will have their own motivation, which is not
necessarily aligned to the public interests.
o Secondly, although anti-competitive action damages people, public
enforcement does not provide compensation for that
damage. Without some form of private action, they would not
obtain compensation. Justification is essentially a rights based
one.
Three types of litigants can be distinguished: competitors, customers
and consumers.
The incentive on competitors to take an action against anti-competitive
behaviour is obvious, they are being damaged by the conduct or the
agreement + want it to stop. It may, however, be in the interests of a
competitor to use competition law to try and disrupt business strategy
of a rival regardless of their efects on competition.
Customers are those undertakings that buy inputs from other
undertakings, that is, they are in a vertical relationships with those
other undertakings that are involved in the anti-competitive behaviour.
