Practical aspects of the private enforcement of EC competition law

Abstract

The five chapters of this dissertation address the questions of: (i) why the Community seeks to encourage the enforcement of articles 85 and 86 in the national courts; (ii) the competing arguments for and against such enforcement; (iii) the extent to which it is happening; (iv) what difficulties are faced by private enforcement; and (v) how private enforcement in the national courts might be encouraged further. The dissertation does not seek to provide a direct answer to the question of why private enforcement is not more prevalent, because of the breadth of the inquiries that would be necessary for that purpose. It is both easier and more practical to consider instead what measures could be taken to encourage such litigation, even at the risk that such measures might serve only to counter-balance, rather than to remove, whatever unidentified factors there are that may be dissuading persons from litigating. Nevertheless, the answer to question (iv) probably goes some way to answering the question of why the Community has level of private enforcement that has been recorded to date. The dissertation addresses these questions within the context of the legal systems of the United Kingdom. Those systems use procedures which, of all Community legal systems, depend to the greatest extent on the initiative of the parties and their lawyers. The dissertation therefore considers the practicalities of enforcing articles 85 and 86 from the point of view of the private lawyer to a greater extent than might be appropriate in jurisdictions where the judiciary have a more active role.