No Need for Harmonisation?

Having regard to the difficulties arising in the relationship between public and private enforcement after the planned harmonisation, the question inevitably raises whether the harmonisation is necessary in the first place. Even if one would admit that private enforcement does have an important complementary role in the antitrust enforcement system, it does not necessary mean that the measures for strengthening it should come from the Union legislator.

Therefore, it is understandable that the voices opposing a revolutionary development that the Commission is striving for with a directive grow stronger. It could also be said that instead of ground breaking actions taken by the Commission, the development of private damages actions should be evolutionary instead. Therefore, the Commission’s task in this should be to give guidelines and wait for a natural course of events. This is especially true in the ‘new’ Member States where private enforcement actions are almost non-existent and where this is due to the underdevelopment of public enforcement, as follow-on claims are the ones that make up the majority of damages claims actions. Thus, instead of pushing forward the directive, the Commission should help on those Member States which clearly suffer from a suboptimal level of enforcement of competition law in general, not just on the private side.

One could therefore say that the Commission should not be pushing for the one-off solution that would facilitate private enforcement claims in all Member States. As there are 27 different national systems, they will be differently influenced by the harmonisation and the change cannot be presumed to always be positive or even necessary. It can already be seen that those Member States, which have a long and established history of public enforcement (e.g. the UK, Germany…), have understood the need for public enforcement actions and have taken the necessary steps to facilitate them in a manner which suits their own national system best.

Also, considering that a joint effort by the Commission and the Member States to increase awareness of the possibilities of bringing antitrust damages suits may be enough for the victims of anticompetitive conduct to find the ways of obtaining full compensation.221 Hence, raising awareness of victims through discussions on this topic should already increase the number of claims brought and thereby also the number of victims obtaining compensation. If the latter is the real aim and the problem that the Commission wants to tackle with its potential future directive on the damages, then there is no actual need to start demolishing carefully balanced national tort law systems that do not enjoy the support of the Member States themselves. Even more so, as there are strong grounds to suspect that adverse consequences may well follow, and that reforms may unbalance

221

J.S. Kortmann and Ch.R.A. Swaak, ‘The EC White Paper on antitrust damage actions: why the Member States are (right to be) less than enthusiastic’, 30(7) ECLR (2009), p. 350.

legal and societal values and the economy, rather than improve them.222 Furthermore, amendments in relation to competition law would inevitably have consequences in all other sectors: competition law cannot be approached within civil justice systems in a vacuum.223 Interfering with the balancing factors runs the risk of destabilizing not only the system of justice, but also of society, and of introducing a litigation culture.224 The severity of the consequences, which may follow therefore need to be taken into consideration before issuing any legislation on this matter.

Moreover, considering that the continuously growing amount of fines indicate that public sanctions are reaching a high level of deterrence, one may wonder whether this is the right time for an initiative to top up the bill presented to competition law offenders with additional private sanctions.225 However: first, there is reason to believe that despite the Commission’s recent successes in detecting violations of competition law, still only the tip of the iceberg is visible; second, there is hope that if provided with sufficient incentives, private parties will help to uncover (and as a consequence, deter) more anti-competitive practices than the Commission and its national counterparts would ever be able to find and deal with on their own.226 It can be concluded that these concerns and suggestions expressed earlier have been and will be ignored by the Commission who sees an enhanced antitrust enforcement as the greater good.

Furthermore, Eilmansberger claims that the objective of removing civil law obstacles to damages claims cannot be attained by soft law.227 He finds that it would be naive to expect national legislators or judges to make significant changes to the relevant civil law provisions with a view to facilitating cartel damages actions in reaction to mere guidelines or recommendations issued by the Commission.228 Soft law measures would not require the Member States to take action,229 which means that the situation where different procedures and remedies are be available, would continue to exist. This on its turn would constitute an unjustified disadvantage for some individuals and companies. In addition, in certain cases it would encourage forum shopping in order to find the most favourable regulation. Nevertheless, it is still not clear what form this legislation will take, although Komninos proposes that a Community ‘hard law’ instrument, such as a directive, is most likely.230

222

C. Hodges, ‘Competition Enforcement, Regulation and Civil Justice: What is the Case?’ 43(5) CMLRev. (2006), p. 1406. 223 Ibid, p. 1401. 224 Ibid, p. 1401. 225

Editorial Comment ‘A little more action please! – The White Paper on damages actions for breach of the EC antitrust rules’, 45(3) CMLRev. (2008), p. 609.

226

Ibid, p. 609.

227

T. Eilmansberger, ‘The Green paper on damages actions for breach of the EC antitrust rules: reflections on the utility and feasibility of stimulating private enforcement through legislative action’, 44(2) CMLRev. (2007), p. 438.

228

Ibid, p. 438.

229

Ibid, p. 438.

230

A.P. Komninos, EC Private Antitrust Enforcement – Decentralised Application of EC Competition Law by National Courts (Hart, 2008), p. 180.

Finally, the argument that the ‘new’ Member States are in need of a more effective public enforcement than introducing new action for damages rules, does not hold up either. Even if that is the situation and public enforcement lags behind, it does not mean that measures making private enforcement more operable cannot be taken in the meanwhile.