Belgian Competition Day - RT1 - Private enforcement : Towards a European approach ? (Brussels, October 21th 2010)

This set of articles reproduces the discussions delivered at the first round-table at the Belgian Competition Day held in Brussels on October 21, 2010. Mr. Ost stresses the complementarity of public and private enforcement. He however fears the possible impact of a « private enforcement industry » and the danger that it may present to the leniency programmes. Based on the German experience, he wonders whether there is in the light of the available remedies a real need for a European coordination, and asks whether a « one size fits all » approach is feasable. Mr. Slater stresses that the debate on private enforcement should focus on the compensation of damage, and not on enforcement or deterrence. He asks whether a system of settlements in which the fines would take into account a voluntary indemnification of victims might not offer an alternative that would give enterprises an incentive to indemnify victims. Such approach would also avoid a negative impact on leniency programmes. Mr. Lambrecht emphasises the need for a strict enforcement of the rules of competition, but also argues that excessive harmonisation can create unforeseen problems. He fears « American situations » and asks whether there is really a common interest justifying such harmonisation. As a representant of an employers association, he considers that individuals should defend their own interests. Mrs. Maciuleviciute argues that consumer associations also aim at the compensation of damage and are equally concerned that damages should correspond with the damage the actual victims have suffered. She considers that ADR is not yet able to achieve that goal and that courts are better placed to do so. She argues that opt-in systems do not achieve a sufficient degree of participation and therefore opt-out systems are preferable, and that the available data do not show a tendency to abuse opt-out systems. Mr Collins confirms that NCAs are, just as the EU Commission, interested in improved possibilities for victims of competition infringements to obtain damages. A « one size fits all » EU solution will not work ; on the contrary, there is a need for a variety of types of national action within an EU framework. Private and public enforcement are complementary ; optimal balance between the two is needed. Private actions must not undermine leniency and inconsistent decisions must be avoided. He concludes that UK has already a sufficient legal framework to deal with B2B standalone cases, but that there remains a lot to be done in respect to B2C collective redress disputes in order to improve the remedies that are effectively available for consumers without creating the problems seen in the US. These presentations are followed by a debate on the following issues : the option between opt-in and opt-out in collective redress procedures, the relationship between public and private enforcement, and the question which court should have jurisdiction for private enforcement cases.

Round Table 1 : Private enforcement : towards a European approach ? Stefaan RAES Chairman, President of the Competition Council Konrad OST Director of the General policy Division - German Bundeskartellamt Donald SLATER Counsel Philippe LAMBRECHT Secretary General – Federation of Enterprises in Belgium (FEB) Augusta MACIULEVICIUTE Legal officer - The European Consumers' Organisation (BEUC) Philip COLLINS Chairman, Office of Fair Trading (OFT) Mr Ost stressed the complementarity of public and private enforcement, and the contribution private enforcement can make to a competition culture. Private enforcement therefore in his opinion serves the goals of public enforcement. But he also pointed to a certain fear of the possible impact of a « private enforcement industry » and the

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