EU Competition Law. Between Public and Private Enforcement

‘EU Competition Law: Between Public and Private Enforcement’ is devoted to an analysis of today’s EU competition law at the intersection between public and private enforcement. The book, which is directed by Prof. Bernardo Cortese, relies on the contribution of several scholars and experts of EU competition law whose essays are to be intended as Chapters of a general and coherent work organized in five parts, each of which is introduced by Introductory Notes putting the different chapters in a clear perspective, and building a constant dialogue between the director of the work and the authors of each chapter. The underlying idea of the book is that private enforcement cannot be effectively addressed without inserting it in the more general framework of EU law enforcement mechanisms, on the one hand, and in the framework of competition law, on the other. This idea is reflected in the structure of the present work. Part I deals with general problems and notions of EU competition law. By addressing in Chapter 1 the goals of competition law, the book intends to recall first of all the specificity of EU competition law if compared with other antitrust systems. Then, decisive notions of EU competition law are addressed, whose interpretation might be a challenge in private enforcement, but also in decentralized public enforce- ment, because of their autonomous character. Chapters 2, 3 and 4 thus deal with the notion of agreements and concerted practices, with the criterion of effects on interstate trade, and with the notion of undertaking, seen through the lens of the parent subsidiary relationship. In Part I, some basic questions emerge concerning the (not always complete) autonomous character these notions, and their relationship with national legal systems’ notions. Some structural characters of EU competition law are moreover presented, and among them the quasi legislative role the Commission has crafted for itself through the modernization, that make it necessary for national courts and the ECJ to actively exercise their judicial function, to avoid that the system of enforcement might lead to constitutionally unsound results. At the same time the idea is put forward, that EU competition law should not rely too heavily on ECJ case law, but should stand on truly legislative choices. Finally, the exclusion of the European Parliament from the normative process in this field is seen as a substantial limitation to the democratic character of the whole EU economic integration system. Part II addresses different aspects of the cooperation between ECN authorities, and between them and the judiciary. Chapter 5 shows the ‘constitutional’ unbalances of the ECN, against which it advocates a more active involvement of national courts; at the same time, it denounces the threats that the post modernization system poses, in its actual functioning, for uniformity and predictability of EU law application. Chapter 6 deals with the effects of ECN public enforcement decisions in private enforcement judicial proceedings, while Chapter 7 analyses in depth the use of cooperation tools that should enable a fruitful involvement of administrative authorities in private enforcement judicial proceedings, making reference to procedural tools provided both at the EU and at the national level. Moreover, in the Introductory Notes to this Part the need to preserve a central role for the preliminary ruling mechanism is stressed, against the substantial disregard of the CILFIT acte claire doctrine that is shown by supreme courts’ attitudes in this field. Finally, suggestions for reform of the national arms of the EU private enforcement system are put forward, namely the introduction of a certain degree of courts’ specialization, and the introduction or reinforcement of class or representative actions. Part III is specifically devoted to the preliminary ruling mechanism, and to its significance in EU competition law. Chapter 8 analyses in depth the procedural framework of Article 267 TFEU, and shows how it operates in the field of competition law. Chapter 9 depicts the actual contribution of preliminary rulings in shaping the framework of private enforcement at the national level, in the absence of EU legisla- tion, by singling out some ‘pillars’ upon which all national legal systems should be based. Chapter 10 continues the analysis, by making special reference to the issue of access to public enforcement leniency files. The abovementioned analyses make it possible for the director of this work to reflect, in his Introductory Notes to Part III, on some critical aspects of the public/ private enforcement relationship. First of all it is stressed that public and private enforcement should be recognized different nature and goals, but equal dignity in the system. Further, and as a consequence thereof, the need to fully deploy the preliminary ruling potential in this field is underlined. To this end, a less strict approach to the notion of ‘court or tribunal’ under Article 267 TFEU is advocated. Moreover, the case is made for a special procedural regime for competition law preliminary rulings, leading to a more integrated adjudication process between national and European courts, which could be optimally managed by a specialized chamber of the General Court. Part IV deals with the procedural issues that most frequently arise at the national courts’ level in connection with actions for damages. It includes four Reports drafted by senior national judges, members of the Association of European Competition Law Judges, and coming from specialized or supreme jurisdictions of France (Chapter 11), Greece (Chapter 12), Ireland (Chapter 13), and Italy (Chapter 14). Rapporteurs assess the value of cooperation of administrative authorities with civil courts, as well as the role played by general principles of national procedural law, especially on the burden and standard of proof issues, that make sometimes difficult to successfully bring private enforcement damages actions. In particular, the relevance of the passing on defence is analysed, also in the light of the compensatio lucri cum damno principle, and the scope of res iudicata in the civil/administrative jurisdiction relationship is further assessed. The role of experts, and the procedural tools to preserve the confidential nature of relevant data, as well as simplified approaches to the proof of damages, are also analysed. Part V finally deals with some sectors of economic activity in the internal market in which the relationship between competition law and regulation is at the forefront, thereby dealing with an issue of paramount importance for both public and private enforcement. Chapter 15 deals with the abuse of a dominant position in the form of ‘margin squeeze’ in the sector of telecommunications. Chapter 16 on its turn addresses alternative regulation/competition in the audio-visual industry, having its focus on the need to preserve and foster pluralism. Chapter 17 presents recent case law on pharmaceuticals’ parallel imports, showing how the actual outcome as to the admis- sibility of such practices depend on a case-by-case evaluation, and is thus left to the wide discretion of the competent authority or court. Finally, Chapter 18 offers a picture of recent enforcement practice in the financial sector, showing how growing recourse to (follow-on) private enforcement actions would be possible, provided however that class or representative actions are available.