Conference: The EC White Book on competition private enforcement (Paris, 13 06 2008)

Whereas in the enforcement system of Articles 81 and 82 EC resulting from Regulation No 17/62, it was usual to distinguish between the application of these texts, on the one hand, by the Commission and, on the other hand, by the national authorities and courts, which led to a preference for a formal criterion based on the Community or national character of the proceedings, Regulation No 1/2003 opted for a functional criterion focusing on the purpose of the intervention. It accentuates the distinction between what is henceforth called public enforcement, entrusted to the European Competition Network, which brings together the Commission and the National Competition Authorities (NCAs), and private enforcement, which falls within the competence of the national courts under ordinary law. While the reform has placed the emphasis on the former, the two are complementary, hence the Commission’s work to develop private action. Chronologically, the movement in favour of the development of private actions has taken place in three stages: a comparative study of the situation in the various Member States, which led to the publication of the Ashurst report in 2004, the publication of a Green Paper in 2005 and, lastly, the publication of a White Paper on 2 April 2008. Since its creation in 2004, Concurrences has closely followed the Commission’s work on the development of private actions, what is now commonly known as private enforcement. The work of this colloquium complements the various articles and trends that have been devoted to this essential aspect of Community competition policy. This colloquium is the result of a partnership between the AFEC and the European College of Paris. In view of its purpose, the AFEC could not but take a position on the White Paper. A working group was set up and entrusted to two members of the steering committee, Emmanuelle Claudel, Professor at the University of Paris X-Nanterre and Philippe Rincazaux, a lawyer at the Court. In order to feed the discussion and prepare the opinion which was finally sent to the Commission, it was decided to discuss the White Paper proposals, independently of the usual meetings of the working groups, in a colloquium open to all. This was the subject of the first part of this day. Every text also contains unspoken words, especially as it is a Community document and is read at national level. In France, the subject, which was initially reserved for judicial judges, appeared before the administrative judge, creating an interesting debate. At the same time, for any internationalist, the disappearance of discussions on the consequences of the intra-community aspect of reparation actions has also raised questions. Professors Yves Gaudemet and Catherine Kessedjian, both from the University of Paris II, agreed to organize the two round tables that made it possible to go "beyond the White Paper", the first from a national perspective, the second from an international perspective. For each round table, the objective was to multiply the points of view. The plurality concerned both the professional quality of the members (magistrates, lawyers, academics, company representatives) and the disciplinary field. While many names are well known in the "world of competition law", other speakers are totally foreign to it, whether they are litigators or internationalists. My most sincere thanks go to all those who, in one capacity or another, have contributed to the success of this day, which is reported on in various ways in the following pages. Foreword by Mrs Laurence Idot, Professor at the University of Paris II, European College of Paris, President of the French Association for the Study of Competition (AFEC)