Volume 8 - Issue 1
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Editorial - Private Enforcement and Collective Redress: the Benefits of Empirical Research and Comparative Approaches
This article assesses the role of private antitrust litigation in Japan through an empirical analysis. An attempt was made to collect data concerning all actions for damages and injunctive relief in the post-war era. Based on this data, the article gauges how much private antitrust litigation has contributed to the deterrence of antitrust violations, compared to public enforcement by the Japan Fair Trade Commission. It also evaluates to what extent private antitrust litigation has achieved compensation for those harmed by antitrust violations. The article includes findings on (1) the number of private antitrust actions, (2) the types of antitrust infringements invoked (bid-rigging, cartels other than bid-rigging, monopolization and unfair trade practices), (3) the success rate of antitrust litigation, (4) the magnitude of the damages awards and settlements, (5) the proportion of stand-alone versus follow-on cases, and (6) the kind of plaintiffs that have recovered damages.
This paper provides a comparative study of group actions in existence in a number of Member States, with a particular emphasis on the Danish, Portuguese, English, French and Dutch experience, comparing the different approaches taken and contrasting them with the propositions contained in the European Commission’s White Paper on Damages Actions for Breach of Antitrust law and Green Paper on Consumer Collective Redress. It will focus on the way these procedures function, on the choices the jurisdictions have made and the issues at the heart of the debate. The case will be made that the opt-out group action model, based on the US class action has not been given sufficient consideration in the White Paper and the documents accompanying it, and has been dismissed, not because it was not the right model for the European Union, or because of its inherent defects, but for political reasons. To that end, focus will be placed on the European Commission’s White Paper with a snapshot analysis of the differences and similarities between these experiences. This paper will show that the opt-out model is already present in various jurisdictions in Europe, and through a comparative study of opt-in and opt-out models of collective actions in Europe, will attempt to demonstrate that not only is the opt-out model effective, it may very well be superior in various ways to the models considered in the White Paper.
Despite the long debate concerning the future of private competition law enforcement in Europe the issue remains on the Commission agenda and no concrete results have been achieved to date. This article traces the main developments of collective redress mechanisms and consumer involvement in both the Commission’s practice and the European Court of Justice’s (‘CJEU’) jurisprudence in order to discern the main functions that should be attributed to collective consumer actions in the field of competition law. The multiple beneficial functions of such actions form the ‘added value spectrum’ that justifies consumer participation in private competition law enforcement. The added value spectrum, together with arguments drawn from the nature of consumer claims in competition law, a proposed distinctive notion for ‘access to justice’ and the distinction between aggregated individual and collective consumer interest offer normative justifications in favour of different collective action mechanisms for low value consumer claims in the competition law field. Following this normative analysis, the article moves on to formulate these collective action mechanisms that could, indeed, allow for consumer involvement in EU private competition law enforcement.
This paper aims to demonstrate that some form of contingency fees or adjusted cost rules would be necessary in order to enhance access to justice for victims of competition law violations. Arguably, the possible negative risks of contingency fees are lower than believed and they could incentivize lawyers to pick only meritorious cases to a higher degree than lawyers working on the basis of hourly fees. Moreover, some Member States have recently allowed for some form of contingency fees, so it might be feasible to achieve sufficient political support among Member States for adjusting the cost rules. The paper explores some options as to how to adjust the cost rules, and considers the feasibility of harmonization of those rules. It also briefly analyzes alternatives to public funding of collective actions, such as third party funding and private legal insurance. The paper concludes that collective actions would be necessary in order to increase access to justice for victims of competition law violations, but would not suffice, unless funding is ensured and sufficient incentives for claimants to bring actions are provided by limiting their cost exposure through the introduction of a modified form of contingency fees and/or a significant adjustment of the national costs rules.
• ©2003-2011 Angus MacCulloch & Andrew Matthews •