Defining the Role of Courts and Administrative Bodies in Private Enforcement in Europe: United in Diversity?

This study is a follow-up to a survey conducted by the author in the framework of Euro-Comp-Aid, a networking programme co-funded by the European Commission, DG Competition, and directed by the author. Several experts, mainly from National Competition Authorities (NCAs) of the EU Member States, answered a questionnaire drafted by the author of the study. The study reflects on some of the most interesting results of the survey, as to the actual impact of cooperation tools provided for by Article 15 of Regulation 1/2003. It also addresses the ways in which the legal systems of Member States complement Article 15 cooperation tools especially as concerns NCAs. Such national mechanisms of cooperation between courts dealing with private enforcement cases and public enforcement authorities are assessed by taking into account their soundness in the framework of the modernization and decentralization of EU competition law and some concerns about possible inconsistencies with the system designed by Article 267 TFEU. Due account is also taken of the role played by NCA public enforcement findings before civil courts dealing with private enforcement follow-on actions. First of all, the article analyzes the effective role as amicus curiae role played by the German Bundeskartellamt before German courts, stressing on the other side the unsatisfactory consideration German Supreme Court gives to the preliminary ruling mechanism. Then, the French Autorité de la Concurrence position as an amicus curiae is considered, noting in particular the interesting French approach to disclosure of public enforcement files, strictly intertwined with the amicus curiae role of the Authority; another issue which gives interesting hints on a question of general interest in the field, is that of coordination between NCA and Commission's interventions before national Courts. The focus is then on British NCAs role as amici curiae, where the more general question is addressed of the relationship between general courts and specialized competition courts entrusted with judicial review over NCA acts, in light of the decentralized nature of the EU competition law enforcement system, and of the sincere cooperation principle of EU law. Again, as for the German approach, an unsatisfactory consideration of Art. 267 TFEU procedures is observed. The Italian model is then analyzed, based on a strict separation between administrative and judicial functions, which requires a strict reading of the res indicate effect of EC decisions and will eventually make the enactment of the enforcement directive a quite delicate issue. As for the French approach, the usefulness of resorting to general tools of the law of evidence is stressed, instead of relying too much on (not satisfactory) tools of direct cooperation. The position of the Spanish Comisión Nacional de la Competencia in the EU decentralized system of competition law enforcement is then taken into consideration, by stressing not only the active role public enforcement authorities can have before Spanish civil courts, but also the useful assistance they can provide to courts in damage assessment. The complementarity between special EU law cooperation tools, and general tools provided for by national law is then highlighted when it comes to the assessment of the Swedish legal system; at the same time, the analysis of Swedish practice shows the decisive role such cooperation might have in interim proceedings, as well as the risks inherent in such situations. Further, some other Member State legal systems are taken into account, that seem to have gone further than EU law itself in providing for cooperation between civil courts entrusted with private enforcement and public enforcement agencies, by setting some forms of reinforced and even structural connection between the two sides of competition law enforcement. This is the case of Malta, Latvia and Romania. In all of these Member States, a system is put in place, which goes to a certain extent beyond the model of smooth cooperation outlined by Article 15 Regulation 1/03. Such approaches might favor the effectiveness of EU competition law enforcement. In some cases, however, the risks arises of compromising the unitary character of EU competition law. The role of preliminary rulings proceedings under art. 267 TFEU remains therefore essential. Czech, Slovakian, Luxembourgish and Bulgarian systems are finally considered. Besides making apparent obvious differences existing among various Member States, the study shows the need for a more comprehensive and coherent approach to cooperation between courts dealing with private enforcement cases and administrative authorities entrusted with public enforcement powers. It also shows the need to preserve the European Court of Justice’s role in ensuring the uniform interpretation of EU competition law, which some national approaches risk jeopardizing.