Competition Litigation Funding
In: Barry Rodger, Miguel Sousa Ferro & Francisco Marcos (eds), Research handbook on private enforcement of competition law in the EU (in Edward Elgar Forthcoming)
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In: Barry Rodger, Miguel Sousa Ferro & Francisco Marcos (eds), Research handbook on private enforcement of competition law in the EU (in Edward Elgar Forthcoming)
SSRN
In: Common Market Law Review, Band 55, Heft 5, S. 1664-1666
ISSN: 0165-0750
In: Chapter in: Pier Luigi Parcu, Giorgio Monti & Marco Botta: Private Enforcement of EU Competition Law: the Impact of the Damages Directive (Edward Elgar 2017), Forthcoming
SSRN
Working paper
In: The international & comparative law quarterly: ICLQ, Band 60, Heft 3, S. 627-657
ISSN: 1471-6895
AbstractThis paper examines the current European private antitrust enforcement policy. The European Commission's White Paper of 2008, the unofficial Draft Directive of 2009 and the collective redress consultation of 2011 consider a facilitated access to private actions for all types of antitrust violations under articles 101 and 102 TFEU in order to effectively compensate the victims of anticompetitive conduct. Assuming that changes are necessary, the paper argues that it might be worthwhile to limit this policy to damages claims against hardcore violations such as cartels. This suggestion is based on two main arguments. Firstly, the current European private antitrust policy probably underestimates the risks of more damages actions against all types of infringements neglecting insights from the economic analysis of law. Secondly, a revised approach is not only in line with the thinking that underpins the reform but also addresses an actual need as revealed by a comparison of litigation data from different jurisdictions. Refining the European private antitrust policy, it is argued that a focus on hard-core anticompetitive constraints such as price fixing would mitigate the potential for a strategic use of antitrust litigation and reduce the likelihood that the reform of European antitrust damages actions will lead to negative outcomes.
We investigate the relationship between public and private enforcers introducing a more differentiated approach. In contrast to the existing literature, we take into account that the costs and benefits of detection and prosecution and, thus, the usefulness of each enforcement mode may change with a variation of the type of anticompetitive conduct. We define a set of parameters that determine the costs and benefits of both types to enforce the antitrust laws and discuss implications for European competition law and policy.
BASE
In: ZEW - Centre for European Economic Research Discussion Paper No. 29
SSRN
Working paper
In: The international & comparative law quarterly: ICLQ, Band 60, Heft 1, S. 93-124
ISSN: 1471-6895
AbstractThe appropriate role of the courts in controlling the discretion of merger authorities has become one of the key issues in European merger law and policy in recent years. This article investigates judicial review of merger decisions, taking a comparative approach by examining cases from the EU, UK and Germany. We observe an apparent increase in the willingness of the EU and UK courts to scrutinize merger decisions, and a long-standing tradition of close scrutiny in Germany. In respect of the EU and UK, we consider agency theory offers a convincing explanation—that increased scrutiny is explained by the need to enhance the credibility of merger policy. In Germany, the constitutional basis of judicial review differs significantly, and the relatively close scrutiny exercised by the court is better explained by the very different constitutional context.