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Should private antitrust enforcement be encouraged in Europe ?

The EC antitrust prohibitions are regularly invoked in private litigation as a shield. Private parties also play an important role in public antitrust enforcement through complaints to the competition authorities. However, in marked contrast with the situation in the US, private actions for damages or for injunctive relief are rare. This article argues that this situation is a desirable one. Indeed, from the perspective of ensuring that the antitrust prohibitions are not violated, public antitrust enforcement is inherently superior to private enforcement, because of more effective investigative and sanctioning powers, because private antitrust enforcement is driven by private profit motives which fundamentally diverge from the general interest in this area, and because of the high cost of private antitrust enforcement. There is not even a case for a supplementary role for private enforcement, as the adequate level of sanctions and the adequate number and variety of prosecutions can be ensured more effectively and at a lower cost through public enforcement. It also seems difficult to justify an increased role for private antitrust enforcement in Europe by the pursuit of corrective justice, as there does not appear to be a clear social need for such action, and because truly achieving corrective justice in the antitrust context is in practice a very difficult task.

I. Introduction 1. Overview This article deals with the question whether private enforcement of EC antitrust law should be encouraged. The article focuses more specifically on the prohibitions of restrictive agreements and of abuse of a dominant position laid down in Articles 81 and 82 EC. [1] These prohibitions are today almost exclusively enforced through public enforcement by the European Commission (hereafter also: «the Commission») and the competition authorities of the Member States (hereafter also: «the national competition authorities»). In private litigation, Articles 81 and 82 EC are regularly invoked as a defence (or «shield»), mainly in contractual disputes, but rarely are the EC antitrust rules used proactively (as a «sword») to claim damages or injunctive relief in national

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  • King’s College (London)

Quotation

Wouter Wils, Should private antitrust enforcement be encouraged in Europe ?, February 2005, Concurrences N° 1-2005, Art. N° 34886, www.concurrences.com

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