Private Enforcement of EU Competition Law in Member State Courts: Experience to Date and the Path Ahead

Christopher Cook, Nov 01, 2008

A much cited 2004 study described private competition law litigation in Europe as being in a state of total underdevelopment. Ever since, the European Commission, along with several member state governments and competition authorities, has made facilitating private enforcement of competition laws a cornerstone competition law policy. The situation is evolving across Europe courts are becoming more open to antitrust plaintiffs and litigation is active. But with the main procedural and policy issues that govern civil litigation under the responsibility of 27 countries with rich and diverse legal traditions, progress has been uneven. The consequence is a patchwork under which European litigants on both sides of the table face difficult questions of standing, jurisdiction, access to evidence, and entitlement to and calculation of damages the answers to which vary widely by country. This article provides an overview of the current state of private enforcement of EU competition law. In doing so, it summarizes and assesses the central recommendations of the European Commission´s 2008 White Paper on damages actions for breaches of EU competition law, considering the context under which the White Paper was issued as represented by the policy options laid out initially in the Commission´s 2005 Green Paper, existing member state legal systems, and experience in national antitrust damages litigation.