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Über dieses Buch

Over the past fifteen years, the optimal enforcement of EU competition law has become a major concern. This book contains a unique collection of articles by lawyers and economists on current issues in the public and private enforcement of competition law. Public enforcement has been strengthened in numerous ways – for example, through the introduction of a leniency programme and a substantial increase in fines for competition law violations. At the same time the EU Commission has been promoting private enforcement – for example, by developing a legal framework that grants victims of EU antitrust law infringements access to compensation.

The contributions in this book address a range of topics in the area of competition law enforcement, including the role of fines and leniency programmes in public enforcement; access to evidence and the quantification of damages in private enforcement; and the interaction between public and private enforcement of competition law in Europe.

Inhaltsverzeichnis

Frontmatter

Public and Private Enforcement of Competition Law in Europe – Introduction and Overview

Most competition law enforcement systems are based on two enforcement pillars: public and private enforcement. Public enforcement refers to state authorities that enforce antitrust rules; such authorities are vested with special powers and use special procedures to investigate and punish infringements. Private enforcement, in contrast, is litigation initiated by individual plaintiffs before a court to remedy an infringement of competition law. Remedies include damages, restitution, injunction, nullity or interim relief. They can be asserted in stand-alone actions or they can follow an infringement decision by a competition authority. Unlike public enforcement agencies, private parties have no special powers in civil law disputes.

Kai Hüschelrath, Heike Schweitzer

Public Enforcement of Anti-Cartel Laws – Theory and Empirical Evidence

The fight against hard-core cartels1 is ranked high on the agenda of many competition authorities around the world these days. The efforts of the European Commission (EC) and other institutions are reflected in policy reforms such as new fining guidelines or leniency programmes and also in improved cartel enforcement. While the European Commission decided only ten cartel cases in the 1995–1999 period, the number increased to 30 in the period from 2000–2004 and to 33 in the 2005–2009 period.

Kai Hüschelrath, Heike Schweitzer

Leniency Programmes and the Structure of Cartels – Remarks from an Economic Perspective

In the last two decades, leniency programmes have been established as a new instrument to fight cartels in almost all legal systems. They complement the traditional instruments – fines – and, in some jurisdictions, criminal prosecution. Leniency programmes were established in the US as early as 1978. They were introduced in Europe in 1996, with Germany’s ‘Bonusregelung’system being enacted in 2000. Within a short period of time, these programmes have become major ‘case generators’ for cartels. More than two thirds of all cartel cases in the EU and about 50% of all cartel detections in Germany are based on statements from key witnesses. But more important than destabilizing existing cartels (desistance) is the ability of leniency programmes to deter the formation of new cartels.

Kai Hüschelrath, Heike Schweitzer

The Role of Fines in the Public Enforcement of Competition Law

There is consensus that the prohibition of hard-core cartels is one of the pillars of free and undisturbed trade, and that prosecution of cartels is necessary to ensure undisturbed competition. Dissenting opinions could only come from members of working and undiscovered cartels, but such opinions do not count.

Kai Hüschelrath, Heike Schweitzer

The Interaction of Public and Private Antitrust Enforcement – The Calculation of Fines and Damages

During the last decade, the enforcement of EU antitrust law has been characterized by two trends: on the one hand, there has been a significant increase of fines imposed by the Commission and by National Cartel Authorities (NCAs) for the violation of Articles 101 and 102 TFEU; on the other hand, the Commission has vigorously strengthened private damages actions, which, according to the European Court of Justice, Member States are required to grant to everyone who is harmed by antitrust infringements.1 While both developments have been dealt with separately in numerous studies, the interaction of public and private sanctions has received less attention.

Kai Hüschelrath, Heike Schweitzer

The Interaction of Public and Private Enforcement – The Calculation and Reconciliation of Fines and Damages in Europe and Germany

While public and private enforcement of competition law are sometimes heralded as two sides of the same coin, the developments in Germany and Europe in recent years have made it abundantly clear that there are in fact numerous sources of conflict and friction. Understandably, much of the discussion has been focused on the exposure of leniency applicants in private follow-on litigation and on methods that could alleviate this exposure. For various reasons, whistleblowers seem to have become a primary target in civil damage lawsuits, and this is seen as one of the greatest threats to the effectiveness of leniency programmes as a means of public enforcement.

Kai Hüschelrath, Heike Schweitzer

Disgorgement and Private Enforcement as Mitigating Circumstances for the Determination of Fines in Antitrust Law

The European Commission currently pursues a high-fine policy in the area of antitrust law. This is possible due to enhanced levels of sanctioning, with fines of up to 10% of turnover of the entire corporate group now permissible.

Kai Hüschelrath, Heike Schweitzer

Quantifying Antitrust Damages – Economics and the Law

Enforcement of competition law across the EU has moved at a steady pace in the last years. Some of the hefty fines imposed by the European Commission have grabbed the headlines, raising awareness of competition law among business communities and the general public.

Kai Hüschelrath, Heike Schweitzer

Best Practices for Expert Economic Opinions – Key Element of Forensic Economics in Competition Law

In October 2010 the Bundeskartellamt, the independent German federal competition authority, published for the first time a formal notice that sets forth binding quality standards for expert testimony provided by economists.2 The publication of these ‘Best Practices’ signifies the increasing importance of economic reasoning and methods in German competition law enforcement. The Best Practices are first and foremost intended to make sure that the interaction between economic experts drawn upon by the parties to a case, competition authorities and the courts contributes effectively to sound decision making.

Christian Ewald, Kai Hüschelrath, Heike Schweitzer

Access to Evidence and Presumptions – Communicating Vessels in Procedural Law

In the discussion on the European Commission’s White Paper on Damages Actions, the proposals on the disclosure of evidence have attracted great attention and have met with approval by some observers and with rejection by others. The critics point to the risk of introducing a US-style litigation culture in Europe. What is less noticed in this discussion is the fact that some continental legal orders have found another way to fix the problem of evidence: special presumptions are used.

Kai Hüschelrath, Heike Schweitzer

Economic Evidence in Competition Litigation in Germany

Economic evidence plays a crucial role in all areas of competition law, but nowhere is this more apparent than in private damage litigation. Since most damage lawsuits that go to trial are follow-on cases – meaning that the infringement as such is normally established beyond question under Article 16 Regulation (EC) No 1/2003 or Section 33(4) of the German Act Against Restraints of Competition (

Gesetz gegen Wettbewerbsbeschränkungen

, hereafter GWB) – the parties will typically focus their attention and energy on the most important issues remaining (arguably) open to discussion: causation and quantum.

Kai Hüschelrath, Heike Schweitzer

Private Damage Claims – Recent Developments in the Passing-on Defence

In recent years the European Commission has focused its concern on bolstering new developments within European legal systems aimed at facilitating actions for damages caused by infringements of antitrust laws. Debates and initiatives surrounding the matter are clearly animated by an objective to provide better and more efficient enforcement of competition law while at the same time allowing customers access to redress for their losses. Specifically, the Commission states that the absence of an effective legal framework for antitrust damages actions (i) causes victims of antitrust infringement to forego a considerable amount of compensation, and (ii) also hampers full enforcement of antitrust rules, thus having a negative bearing on vigorous competition in an open internal market.

Kai Hüschelrath, Heike Schweitzer

Competition Law Enforcement in England and Wales

Competition law enforcement in England and Wales underwent significant changes in the 21st century with the entry into force of the Competition Act 1998 in 2000 and the Enterprise Act 2002 in 2004. The Competition Act and the Enterprise Act have altered both the substantive provisions applicable within the UK as well as the institutional framework for the enforcement of UK and European competition law.

Kai Hüschelrath, Heike Schweitzer

Backmatter

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