Incentives and Disincentives for The Private Enforcement of EC Competition Law

In December 2005 the European Commission has published a Green Paper on “damages actions for breach of the EC-antitrust rules”

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and a more detailed Commission Staff Working Paper as an annexe to it.

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These documents are meant to open a public consultation on various issues relating to the so-called private enforcement of Articles 81 and 82 EC. In a rather unsystematic manner they list some major issues relating to private actions for compensation of losses resulting from a violation of European competition law. These issues are the plaintiff’s access to evidence held by the defendant, the basis of liability, i.e. the fault requirement, the calculation of damages and the so-called passing-on defence which the defendant may raise if the plaintiff has succeeded to pass the higher input costs caused by a price-fixing cartel of his suppliers on to the downstream market; the need for special procedures, in particular for collective actions meant to defend consumer interests; the costs of such actions, the coordination of public and private enforcement; jurisdiction and choice of law; limitation periods, and the requirement of causation.