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From Courage v. Crehan to the Green Paper The changing landscape of European private enforcement

From Courage v. Crehan to the Green Paper The changing landscape of European private enforcement and the possible implications for Article 82 litigation Max Planck Forum on Competition Law Munich, October 13, 2006 Dr Ariel Ezrachi

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From Courage v. Crehan to the Green Paper The changing landscape of European private enforcement

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  1. From Courage v. Crehan to the Green Paper The changing landscape of European private enforcement and the possible implications for Article 82 litigation Max Planck Forum on Competition Law Munich, October 13, 2006 Dr Ariel Ezrachi The University of Oxford Centre for Competition Law and Policy

  2. Outline • The Public Value of Private Action. • The (Under) Development of Private Enforcement in Europe. • Obstacles & Challenges • The Interplay between Private Enforcement and Article 82 EC.

  3. The ‘Public Value’ of Private Action • The promotion of public policies • The promotion of individual rights • Interim injunction • Actions for damages • ‘follow-on’ damage actions • ‘stand-alone’ damage actions • Yet, note the distorting effect of the profit-motive

  4. The (Under) Development of Private Enforcement in Europe The Ashurst study (2004) ‘astonishing diversity and total underdevelopment’ The Green Paper (December 2005) Focus on damages actions Consider the wider picture: - National courts - Out-of-court settlements - Arbitration

  5. ‘Court’ • Courage v. Crehan • Inntrepreneur Pub Company v. Crehan • Vincenzo Manfredi v Lloyd Adriatico Assicurazioni • GT-Link A/S v De Danske Statsbaner ‘Regulation’ • Regulation 1/2003 • Notice on the cooperation between national courts and the Commission • Notice on the handling of complaints under Articles 81 and 82 of the EC Treaty

  6. Private Enforcement -Obstacles & Challenges • Unlevelled playing field • Damages for breach • Group actions • Access to, and use of, evidence • Cost-risk • Passing on defence • Cost-risk

  7. The Interplay Between Private Enforcement and Article 82 EC Developments at the private enforcement level set the overriding incentives for Article 82 litigation Damage claims Three variables: • Article 82 jurisprudence • National court’s capacity to engage in economic analysis • Private enforcement consultation ‘stand-alone’ vis-à-vis ‘follow-on’ damage actions Injunctive relief Out of court settlements

  8. Concluding Remarks Three variables: • Article 82 jurisprudence • National court’s capacity to engage in economic analysis • Private enforcement consultation

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