Making victims whole: A restitution approach to cartel damages

The ongoing debate about whether and how the EU should adopt a community wide system to compensate victims of illegal cartel activity has generated loud arguments over the past years. There is a respectable argument that in the time since this debate formally began in 2005, market forces and the availability of actions in the national courts have begun to fill the perceived gap and that the best approach here would be to let that process continue. Others point out that areas such as alternate dispute resolution remain underexplored. Some people argue for grafting a U.S. style class action litigation system onto the EU structure. This article suggests a different approach, that the Commission consider enacting a system of government controlled restitution. By keeping the system under government control, the Commission would assure that it: (1) could meet the goal of maintaining European culture and traditions expressed by several Commissioners, and (2) could minimize collateral damage to other important EU policies, such as the leniency doctrine. By adopting a system of restitution, the Commission would be choosing the simplest, most direct way to make cartel victims whole, and one which causes minimal harm to other important values.

I. Introduction 1. The European Union aims to deter cartel formation, encourage cartel instability and destruction, and punish cartel participation. In these areas it has notched some notable successes. However, the EU also wishes to see that victims of illegal cartels are compensated for their losses, and in this regard the system and processes are generally viewed as being far less successful [1]. A debate on what to do about this compensation situation has been going on for some years now, and has generated perhaps more heat than enlightenment. While almost no one suggests that we should be encouraging the formation or longevity of cartels, there is substantial disagreement over how to make sure that cartel victims are made whole. 2. The European Commission has been considering

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