Suchergebnisse

As a particularity of competition law, damage caused by a legal violation generally travels down the supply chain. An overcharge incurred by the direct purchaser is often at least partially passed on to the next level in the supply chain, and so on, ending with the final consumer. Damage is typically widespread once it reaches the consumer level. Thus, the consumer's rational response is not to initiate an individual lawsuit. The classical solution is to improve the incentive structure with some form of collective redress. The principle of effectiveness as defined in Article 4 of the Antitrust Damages Directive requires an effective procedural remedy for each victim of a competition law infringement, but the Directive is silent regarding collective actions. Drawing on arguments on the rational apathy problem with consumer lawsuits, we analyse why this 'silence' upsets the European principle of effectiveness. We show why this omission is particularly harmful in the competition law case. We conclude that the time to introduce collective actions to ensure the effectiveness of European competition law has arrived. Such mechanisms do not have to be entirely harmonised across the European Union – different shapes in different Member States or even alternative solutions to the same effect are perfectly permissible.

Abstract: European private law is enforced by different mechanisms and tools that vary between sectors and countries. Some countries, like Germany, may have a strong private law enforcement tradition. In others, such as Scandinavian countries, public law has historically been prevalent. Some countries may be more prone to criminal law enforcement than others. These differing traditions impose a particular challenge on the European legislator that occasionally legislates with the goal of harmonizing law enforcement throughout Europe. From an economic perspective, the threat of enforcement is regarded as guiding people's behaviour or, more particularly, providing incentives to obey the law. In this exercise, different mechanisms vary in their suitability. This article focuses on three mechanisms – private, administrative, and criminal law enforcement – and displays their economic strengths and weaknesses. Ultimately, different mechanisms need to interact to provide an appropriate enforcement response. These mixes will, furthermore, look differently depending on the country in question. This article will first set out the goals and incentives of the different law enforcement models and of the stakeholders involved. It then analyses how these parameters relate to the traditional choice between public and private law enforcement. The British financial sector is sketched as one of the few examples where a 'hybrid' enforcement mechanism that shows elements of both private and public laws is used.