195 Van den Bergh, supra note 31, at 186.
196 Gerrit De Geest, The Signing-without-reading Problem: An Analysis of the Directive on Unfair Contract Terms, in
KonsequenzenwirtschaftlicherNormen 213 (Hans-Bernd Schäfer& Hans-Jürgen Lwowskieds, 2002).
imprisonment in extreme cases.198 This could more particularly be the case when the traders’ conduct is generating large amounts of damage to the public199 and when the trader would be a “fly by night” operator who regularly leaves insolvent companies behind and would thus not be deterred through administrative sanctions.
In sum: (1) private enforcement may be the primary instrument; (2) all “internal” solutions to improve the working of private enforcement could be employed here; (3) for particular cases of small and widespread losses and those which are difficult to detect and where the wrongdoer is difficult to locate, public enforcement may be indicated; (4) in most cases, administrative sanctions will suffice; an administrative agency is limited regarding the remedies, therefore this route is only desirable where injunctions or fines, typically available to such authorities, are sought. This may be particularly interesting if the agency acted on an own motion; (5) there is only a need to resort to the criminal law in extreme cases—rogue traders. It can function as a backup. If it does, the possibility of obtaining damages via criminal law may be interesting. Criminal sanctions should always be available for cases of judgment-proof wrongdoers.
II. Competition Law
Again, there is substantial scope, as in the consumer law case, for applying private enforcement. The case for private enforcement in the competition law case may even be stronger because the victims in this case may not only be consumers, but potentially other traders—suffering from the anti-competitive behavior—as well or professional buyers in the supply chain.200 To provide them with incentives to sue from an economic point of view, punitive damages may be warranted.201 To solve the rational disinterest of named individuals, group litigation, and funding solutions may be of help. Alternatively, administrative fines may do.
198 This was discussed in the same way at the Fachexpertengespräche 2014 with consumer law experts from
Germany, Austria, Switzerland, Luxemburg and Liechtenstein at the Federal Ministry of Justice and Consumer Protection, Berlin, 16/17 November 2014.
199 Faure, Ogus & Philipsen, supra note 176, at 180.
200 A strong case in favor of private law enforcement is made by Joshua P. Davis & Robert H. Lande, Defying
Conventional Wisdom: The Case for Private Antitrust Enforcement, 48 GA. L. REV. 1 (2013). The same authors acknowledge a stronger deterrent effect of private law enforcement than of criminal law enforcement of antitrust laws in the US. Robert H. Lande & Joshua P. Davis, Comparative Deterrence From Private Enforcement and Criminal
Enforcement of the U.S. Antitrust Laws, BYU L. REV. 315, 317 (2011). Given the different nature of law enforcement in the US and the EU, they assert a positive effect of the Directive on antitrust damages and claim that it does not go far enough (Robert H. Lande, The Proposed Damages Directive: The Real Lessons from the United States, (2014), University of Baltimore Legal Studies Research Paper No. 2014-19.
201 See for a detailed analysis of the advantages and disadvantages of punitive damages, Lotte Meurkens, Punitive
The costs of uncovering violations of competition law may sometimes be quite high.202 Traders may easily conceal breaches of competition law and especially for consumers at large the necessary expertise to identify anti-competitive behavior may be lacking. The need for public enforcement in the competition law case may, therefore, be even stronger—given the highly technical nature of the violation—than in the case of consumer law.
Again, in most cases administrative fines may suffice to deter violations of competition law. There may be cases, however—for example, price fixing via hard core cartels—where breaches are clearly intentional and where traders will take special care to hide their anti- competitive behavior, thus reducing the probability of detection. Moreover, potential benefits of violations may be substantially higher than in the case of consumer law.203 This may therefore bring about a need to impose high monetary sanctions to outweigh the low probability of detection and high potential profits. In some cases, those optimal monetary sanctions may be higher than the assets of the trader involved in the anti-competitive behavior. So that may justify the need for the use of criminal sanctions—more particularly imprisonment—for exceptional cases of anti-competitive behavior.204
Summarizing: (1) private enforcement can again be the primary tool; (2) solutions to improve private enforcement, more particularly group litigation and punitive damages, can be employed; (3) given that it is difficult to detect the nature of the violations public enforcement is certainly needed; (4) in most cases administrative enforcement—via fines— may suffice; (5) but given the high potential profits and low probability of detection, criminal sanctions—non-monetary sanctions—may be needed as well.
III. Environmental Law
Again, environmental damage may cause harm to individual victims, thus justifying private enforcement, but in many cases environmental harm may be widespread and could damage a large area and many victims; there may be some cases that cause no direct harm to individuals at all. There may, however, also in the environmental area, be scope to improve private enforcement. One way of dealing with rational disinterest is to grant the right to sue