The Private Enforcement of Competition Law and Access to Justice
Abstract
The White Paper on Damages Actions for Breach of the EC Antitrust Rules contains a couple of bold statements. In the objectives part, the White Paper indicates that a change of the enforcement regime should result in providing access to effective redress mechanisms for all victims of EC infringements of EC competition law in order to fully compensate them for the harm they suffered. A few paragraphs down, a similar message is given, although it is couched in slightly more cautious terms. The White Paper addresses, in principle, all categories of victims. In doing so, the White Paper clearly is in line with the findings of the Court of Justice in Manfredi that “‘any individual’ who has suffered harm caused by van antitrust infringement must be allowed to claim damages before national courts.”
The White Paper does not, except for mentioning indirect purchasers, who the victims of a competition law infringement are. Without mapping out who these victims are, the statement of the European Union remains empty. Rather than some general suggestions as to how to increase private enforcement, the White Paper might have indicated what particular legal changes would have been necessary for each particular category of victim in order to provide better access to justice for all.
This paper is not going to make a comprehensive attempt at this project. Rather, this paper will review the main types of victim of competition law, and analyze to what extent each of these victims (currently) have access to justice. This access to justice should not necessarily be limited to the pursuit of corrective justice, as is the case in the White Paper. Depending on the outcome, conclusions can be drawn in the debate on the tension between private and public enforcement. If few victims can seek redress, private enforcement may not be such an ideal to pursue and the need for public enforcement may need to be further strengthened. To the contrary, if all victims have genuine access to the courts, it will become necessary to answer whether private enforcement is optimal when compared to public enforcement.