The uphill battle for recognition of the private enforcement of the competition rules in the European Union

Abstract

The private enforcement of the competition rules is still a rarity in most jurisdictions of the EU and is often seen as an oddity, something between a useless instrument and an annoyance or even a threat to the flagship public enforcement. The private enforcement of the EU competition rules is not the result of some public policy aimed at supporting it, such as many other enforcement areas in the EU, but it was born from the case law of the European Court of Justice and its genial instrument of "effet utile"—interpreting the provisions of the EU treaties in a meaningful way and such as to be applicable. This origin is, by default, a hurdle in the development of an institution, given the tradition of Europe with regard to the involvement of the public authority in the public policies and its reliance on regulation. It is however unusual that in the land where the modern civil liability was born, in the form adopted in the French civil code some 200 years ago, the private enforcement of the competition rules must fight an uphill battle for full recognition. The reluctance and, sometimes, even hostility towards the private legal actions, is unwarranted and even detrimental to the public enforcement of the competition rules. I will argue in this paper why these attitudes are neither admissible, nor effective and that the private enforcement may contribute to the overall impact of the EU competition rules, without limiting its scope or the legal instruments available. The hypocrisy which has been present all along "the long march"1 that resulted in the current legal framework for legal actions based on the competition rules should come to an end. The private enforcement is here to stay and, henceforth, it should be harmonised with the public enforcement.