Private enforcement of European competition and State aid law. Current challenges and the way forward, Ferdinand WOLLENSCHLÄGER, Wolfgang WURMNEST and Thomas M. J. MÖLLERS (dir.)

Ferdinand Wollenschläger, Wolfgang Wurmnest, Thomas M.J. Möllers

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to catherine.prieto@univ-paris1.fr for review in this section.

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Much has already been written about private litigation on anti-competitive practices, particularly since the Court of Justice’s Courage ruling in 2001 and more recently on the occasion of Directive 2014/104/EU and subsequent national transpositions. Actions for compensation of private operators harmed by illegally paid state aid are less familiar to victims and legal practitioners and have attracted little interest among academics. The collective work Private Enforcement of European Competition and State Aid Law. Current Challenges and the Way Forward, edited by Ferdinand Wollenschläger, Wolfgang Wurmnest and Thomas M. J. Möllers, goes against the grain, so to speak, and goes some way towards filling this gap. This tripartite work is the result of work presented at an international conference organised by the Jean Monnet Centre of Excellence "European Integration - Rule of Law and Enforcement" (INspiRE) of the University of Augsburg (Germany) on 22 and 23 November 2018. The conference brought together specialists from various backgrounds, both academics and practitioners: private enforcement of European Union (hereafter "EU") competition law after Directive 2014/104/EU (Part I) but also EU state aid law (Part II) was studied from a European perspective and through the prism of several carefully selected national laws (France, Germany, Italy, the Netherlands, the United Kingdom and Spain). At the end of the book, a conclusion can be found including an assessment of the tools available to private enforcement in a comparative perspective (Part III).

For the first part, the contributors were given four topics for further study: the entity responsible for an infringement of competition law, the binding effect of decisions of national competition authorities, the law on limitation periods and, finally, the possibility for victims to participate in a class action or at least to assign their claims with a view to a pooling of compensation claims. In addition, they were invited to present the difficulties and strengths of their legal system in the implementation of private actions. A brief overview of the different contributions is necessary here.

Wulf-Henning Roth (Frédéric-Guillaume Rhine University of Bonn) traces the founding judgments of the Court of Justice that allowed private enforcement to emerge and briefly outlines the major contributions of Directive 2014/104/EU. The author then highlights the - conflictual - relationship between the public and private enforcement before questioning that between the directive and the jurisprudence of the Court of Justice and in particular the principle of effectiveness. Johannes Holzwarth (European Commission) focuses his report on the preliminary questions currently pending before the Court of Justice. Directive 2014/104/EU is certainly not yet applicable to these cases. Nevertheless, the Court of Justice must deal with them in the light of the principle of effectiveness. After having focused on the Commission’s draft Communication on the estimation of additional costs passed on to indirect purchasers, the author argues for an increased use of practical guidance.

The first national report concerns France and was written by Rafael Amaro (University of Caen-Normandy). The author establishes not without humour the origin of the bad French reputation. He deplores the fact that no notoriousfollow-on action affecting consumers has been successful before civil or commercial courts. The author also describes the reasons why group action - reserved for B2C disputes - has not succeeded in asserting itself in competitive disputes. Germany, presented by Jens-Uwe Franck (University of Mannheim), has a long tradition of competition law and already has a developed case law on compensation claims. The very notion of effectiveness is richly developed in this report, as are the characteristics of the institutional framework (cost, expertise, efficiency of procedures), which, depending on the perspective considered, allow the glass to be half empty or half full. The Italian contribution, written by Enrico Camilleri (University of Palermo), takes a critical look at Directive 2014/104/EU by pointing out the missing pieces of the "puzzle" (e.g. causality, quantification of damage) and assesses the extent to which it may - possibly - favour private actions. The attractiveness of the Netherlands for compensation claims is well established. Rogier Meijer and Erik-Jan Zippro (Zippro Meijer Advocaten) trace the evolution of private enforcement as well as developments in collective redress actions. However, the English jurisdiction remains more attractive when a large amount of evidence is required before any trial. As Florian Wagner-von Papp (Helmut-Schmidt University, Hamburg) reports, plaintiffs do not shy away from the high costs of proceedings in the United Kingdom in view of the extent of the advantages characterising this forum, not to mention the disclosure procedure. The author proposes several case studies in order to clarify the scope of class actions before assessing the consequences of Brexit on private enforcement in the United Kingdom.

The second part, devoted to the private enforcement of State aid, invites the reader to familiarise himself with this still underdeveloped subject. Contributors were again invited to focus on specific issues: the development of private enforcement and its legal framework, the implementation of the suspension clause (Article 108(3) TFEU) and of the Commission’s final decision, cooperation and coordination between national courts and the Commission and finally obstacles and best practices specific to their respective countries. After presenting the European legal framework (Fernando Pastor-Merchante, IE University), the book proposes an in-depth study of the role of the Commission and cooperation with national courts (Simone Donzelli, European Commission). The various national contributions can only awaken the reader’s interest in the lack of harmonisation of private enforcement of state aid: France (François Lichère, Université Jean Moulin Lyon 3), Germany (Sebastian Unger/David Hug, Ruhr University Bochum), Italy (Roberto Caranta/Benedetta Biancardi, University of Turin), the Netherlands (Jacobine E. van den Brink, University of Amsterdam and Willemien den Ouden, University of Leiden), Spain (Luis Arroyo Jiménez, University of Castilla-La Mancha and Patricia Pérez Fernández, Cuatrecasas) and the United Kingdom (Christopher Bovis, University of Hull). The different contributions highlight the reasons why private enforcement plays a limited role in France, Germany, Spain and the United Kingdom and is more present in Spain, the Netherlands and Italy.

The third part of the book (Ferdinand Wollenschläger and Wolfgang Wurmnest) offers a comparative and prospective analysis of the various contributions. This critical part provides readers with clarity by summarizing and bridging the various contributions. The authors provide both guidance for national courts and interesting avenues for improving the law at the national level as well as for filling the gaps at the European level. Finally, they insist on the need to build a proper framework for the private enforcement of EU state aid.

This work has the merit of having lived up to its ambition. The various contributions describe in detail the national situation of private enforcement of anti-competitive practices but also of State aid. In spite of the difficulties depicted, the authors skillfully explain the development potential of the "private enforcementof EU State aid law". Finally, the structure of the book, and in particular Part III, makes it a comprehensive and practical guide for researchers and practitioners alike.

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Author

  • University of Paris I Panthéon-Sorbonne

Quotation

Agnès Mouterde, Private enforcement of European competition and State aid law. Current challenges and the way forward, Ferdinand WOLLENSCHLÄGER, Wolfgang WURMNEST and Thomas M. J. MÖLLERS (dir.), November 2020, Concurrences N° 4-2020, Art. N° 97385, pp. 279-280

Publisher Wolters Kluwer, Kluwer Law International series

Date 9 January 2020

Number of pages 432

Visites 62

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