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The book by George Cumming, Brad Spitz and Ruth Janal offers an interesting study of the English, French and German laws relating to civil actions under EC competition law. The analysis is rigorous and richly documented; it opportunely complements the reflection carried out by the European Commission’s Green Paper on damages actions.
The authors begin by recalling that the procedural autonomy of national courts is limited by the principles of effectiveness and equivalence, two principles made necessary by the decentralisation of EC competition law implemented by Regulation 1/2003 and enshrined in the Courage (ECJ 20 Sept. 2001, case C-453/99) and Manfredi (ECJ 13 Jul. 2006, cases C-295/04 to 298/04) judgments. The principle of equivalence requires national courts to grant victims of anti-competitive practices protection equivalent to that which would result from the application of national competition law. The principle of effectiveness prohibits procedural rules that would make it impossible or excessively difficult to seek redress. The originality of the book is to analyse each procedural rule from the point of view of its conformity with these two principles. While the principle of equivalence is on the whole well respected, certain deficiencies in respect of the principle of effectiveness are to be deplored for each of the three rights analysed. At the end of the study, the finding, which is severe for English and German law, is more lenient for French law, whose rules do not conflict with these two principles.
Under English law, a civil action can be brought in the ordinary civil courts, which apply the Civil Procedure Rules (CPR), or in the Competition Appeal Tribunal (CAT), which applies its own rules of procedure. In the event of a consequential action, the rule that the ordinary courts and the CAT must comply with the decision of the English Office of Fair Trading is conducive to the principle of effectiveness by making it easier to prove the infringement. Similarly, the possibility for the judge to order interim measures strengthens the effectiveness of competition law. However, noting some procedural differences between the Competition Appeal Tribunal and the ordinary courts, the authors point to the need to reform the civil procedure (CPR) applicable to the ordinary courts. On certain points, the latter do not comply with the principle of effectiveness: absence of a judge specialising in economic matters, inability to impose on the parties the use of expertise, too limited an ability to request information from the Commission.
Particular emphasis was placed on the problem of procedural costs: too high, they deter victims from taking action. Moreover, the European Commission’s Green Paper had already denounced this obstacle to the effectiveness of competition law. In addition to the fixed costs of proceedings (fixed costs), there are also variable costs (success fees). The authors would like their amount to be more closely monitored.
As far as French law is concerned, the book concludes that the principles of equivalence and effectiveness are respected.
Thus, the parties can be assisted by the judge in the search for evidence, the cost of the proceedings remains within reasonable limits and interim measures ensure effective protection of victims. Nevertheless, the effectiveness of competition law could be strengthened on two points. Firstly, the authors are in favour of admitting group actions, in line with the proposals in the Commission’s Green Paper (and now the White Paper, Damages actions for breach of the EC antitrust rules, 2 April 2008) and the opinion of the Competition Council (Opinion of 21 September 2006 on the introduction of group action for anti-competitive practices). They then recommend that decisions issued by the Competition Council should be binding on the civil courts that would rule in consecutive actions.
In German law, the 7th amendment of the GWB (Gesetz gegen Wettbewerbschränbungen), which entered into force on 1 July 2005, has strengthened the effectiveness of Community competition law: civil action is now open to any victim and the decision handed down by the German competition authority is binding on the civil courts. However, the authors denounce one remaining gap: the lack of adjustment of the rules of evidence. In order to increase the effectiveness of Community competition law, it is proposed, on the one hand, to increase the possibilities of access to evidence, given that it is often held by the perpetrator of the practice and, on the other hand, to grant greater protection to business secrets in order to encourage the Commission to communicate to the German court the information at its disposal.
At a time when the European Commission has just published its White Paper on damages actions, we will be grateful to George Cumming, Brad Spitz and Ruth Janal for providing us with a very rich tool. One regret, however, remains: that of the lack of a truly comparative analysis between the three systems which, although they have been thoroughly studied, are studied separately.