Enforcement of Articles 81 and 82 EC before National Courts Post-Courage: Enhancing a community policy or shifting a community law paradigm?

Abstract

The Thesis concerns the development of private enforcement of Community competition law following the judgment of the Court of Justice in Courage v. Crehan. The discussion focuses on the so-called 'Community right to damages' among individuals, established by the Court in that case. It begins with the Community statutory framework for private enforcement (the Treaty provisions and Council Regulation 1/2003) in the first chapter. Chapter Two continues with a brief history of the Community right to damages: from Van Gend en Loos through Francovich and Brasserie du Pêcheur and, finally, to Courage and, more recently, Manfredi. Chapter Three deals with ‘constitutional’ issues, mainly the competence of the Community to regulate actions for damages, not least in light of the ostensible principle of ‘national procedural autonomy.’ Chapter Four elaborates the meaning and content of the right to damages, with reference to case law of the Court. Chapter Five considers nullity and injunctions, as well as the unclear relationship between damages and restitution. Chapters Six and Seven address the problem of the ‘proper’ plaintiff. Finally, Chapter Eight tackles the relationship between decisions of competition authorities and civil proceedings, not least in light of the Commission’s recent proposal to introduce a 'binding effect' of decisions of national competition as a matter of Community law. The Commission’s recent White Paper on damages actions features prominently throughout. The author is broadly supportive of the Commission’s suggestions and considers that the Community does have competence to enhance the possibilities of private plaintiffs to enforce Community competition rules. The taboo of Community regulation of rules of enforcement (liability, remedies and procedure) is challenged and the idea that the Community is developing a private law of its own is endorsed. Similarly, the notion that the binding effect of decisions of competition authorities violates the separation of powers or the independence of the judiciary is dispelled, albeit with a caveat for proper safeguards for the rights of the defence. Generally, caution is recommended, as too much detailed regulation could stifle the flexible, creative development of the law. Lastly, it is noted that some potentially vital issues have been omitted by the Commission, while some of its proposed solutions may not be suitable for the competition context.