European Competition Law Annual 2001: Effective Private Enforcement of EC Antitrust Law 9781472559456, 9781841131986

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LIST OF SPONSORS

Akin, Gump, Strauss, Hauer & Feld L.L.P. Contact: Prof. Jacques H. H. Bourgeois Brussels Office Avenue Louise 65 P.B. No. 7 B-1050 Brussels Tel: (32 2) 535 29 11 Fax: (32 2) 535 29 00 E-mail: [email protected] Cleary, Gottlieb, Steen & Hamilton Contact: Prof. Mario Siragusa Rome Office Piazza di Spagna 15 I-00187 Rome Tel: (06) 695 221 Fax: (06) 692 00 665 E-mail: [email protected] Howrey Simon Arnold & White Contact: James Rill Esq. 1299 Pennsylvania Ave., NW Washington, DC 20004 Tel: (001 202) 383 65 62 E-mail: [email protected] Fax: (001 202) 383 66 10

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Martinez Lage & Asociados Contact: Santiago Martínez Lage Claudro Coello 37 28001 Madrid Tel: (34 91) 426 44 70 Fax: (34 91) 577 37 74 E-mail: [email protected] Skadden, Arps, Slate, Meagher & Flom L.L.P. Contact: Prof. Barry Hawk Brussels Office 523 Avenue Louise B-1050 Brussels Tel: (32 2) 639 03 00 Fax: (32 2) 639 03 39 E-mail: [email protected] White & Case/Forrester Norall & Sutton Contact: Prof. Ian Forrester Brussels Office Place Madou Box 34 B-1210 Brussels Tel: (32 2) 219 16 20 Fax: (32 2) 219 16 26 E-mail: [email protected]

List of Sponsors

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TABLE OF CASES

EC Cases A. Leur-Bloem v. Inspecteur der Belastingdienst/Ondernemingen Amsterdam 2, Case C–28/95 [1997] ECR I–4161. ACF Chemiefarma, Case 41/69 [1970] ECR 661. Ahlström Osakeyhtiö v. Commission (Woodpulp), Joined Cases C–89/85, C–104/85, C–114/85, C–116/85, C–117/85 and C–125/85 to C–129/85 [1993] ECR I–1307. Alcan, Case C–24/95 [1997] ECR I–1591. Amministrazione delle Finanze dello Stato v. Simmenthal, Case 106/77 [1978] ECR 629. Atlanta, Case C–465/93 [1995] ECR I–3761. Austria v. Commission, Case 99/98, [2001] ECR I–1197. Automec v. Commisssion (Automec II), Joined Cases T–24/90 and 28/90 [1992] ECR II–2223. Bagnasco e altri v. Banca Popolare di Novara e Cassa di Genova e Imperia, Joined Cases C–215/96 and C–216/96 [1999] ECR I–135. Baustahlgewebe v. Commission, Case C–185/95 P [1998] ECR I–8422. Béguelin, Case 22/71 [1971] ECR 949. BEMIM v. Commission, Case T–114/92 [1995] ECR II–147. Bergaderm, Case C–352/98 P [2000] ECR I–5291. Bernd Giloy v. Haupftzollamt Frankfurt am Main-Ost, Case C–130/95 [1997] ECR I–4291. Bloos II, Case 59/77 [1977] ECR 2359. Bosch, Case 13/61 [1962] ECR 97. Brasserie de Haecht v. Wilkin (de Haecht II), Case 48/72 [1973] ECR 77. Brasserie du Pêcheur and Factortame, Joined Cases C–46/93 and C–48/93 [1996] ECR I–1029. BRT v. SABAM, Case 127/73 [1974] ECR 51. C. Broekmeulen v. Huisarts Registratie Commissie, Case 246/80 [1981] ECR 2311. Camera Care, Case 792/79 R [1980] ECR 119. Casati, Case 203/80 [1981] ECR 2595. Cascades v. Commission, Case C–279/98 P, [2000] ECR I–9757. Cementhandelaren, Case 8/72 [1972] ECR 977. Cimenteries CBR a.o. v. Commission, Joined Cases T–25/95 a.o. [2000] ECR II–508.

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Commission Decision 1999/60/EC of 28 October 1998, Heating Pipes, OJ L 24/1 [1999]. Commission Decision 2000/400/EC of 10 May 2000, Eurovision, OJ L 151/18 [2000]. Commission Decision 85/206/EEC of 19 December 1984 Relating to a Proceeding under Article 85 of the EEC Treaty (Aluminium Imports from Eastern Europe), OJ L 92/1 [1985]. Commission Decision of 30 November 1994, Cement, OJ L 343/1 [1994]. Commission Decision of 13 July 1994, Cartonboard cartel, OJ L 243/1 [1994]. Commission Decision of 21 October 1998, Pre-Insulated Pipe Cartel, OJ L 24/1 [1999]. Commission Decision of 7 June 2000, Amino acids, OJ L 152/24 [2000]. Commission Decision of 8 December 1999, Seamless Steel Tube – IP/99/957 of 8.12.1999. Commission Decision of 9 December 1998, Greek ferries, OJ L109/24 [1999]. Courage Ltd v. Crehan, Case C–453/99, [2001] ECR I–6293. Cowan v. Trésor public, Case 186/87 [1989] ECR 195. Criminal Proceedings against J.J. Zwartveld et al., Case C–2/88 [1990] ECR I–3365. De Geus v. Bosch, Case 13/61 [1962] ECR 45. Dekker, Case C–177/88 [1990] ECR I–3941. Delimitis v. Henninger Bräu AG, Case C–234/89 [1991] ECR I–935. Dillenkofer, Joined Cases C–178–90 and 188–90 [1996] ECR I–4845. Dirección General de Defensa de la Competencia v. Asociación Espanola de Banca Privada (AEB) and Others, Case C–67/91 [1992] ECR I–4785. Dorsch Consult Ingenieurgesellschaft v. Bundesbaugesellschaft Berlin, Case C–54/96 [1997] ECR I–4961. Draehmpaehl v. Urania, Case C–180/95 [1997] ECR I–2195. DSR-Senator Lines v. Commission, Case C–364/99 P(R) [1999] ECR I–8733. DSR-Senator Lines v. Commission, Case T–191/98 R [1999] ECR II–2533. Dzodzi, Joined Cases C–297/88 and C–197/89 [1990] ECR I–3763. Eco Swiss China Time Ltd. v. Benetton International NV, Case C–126/97 [1999] ECR I–3055. Enichem Anic v. Commission, Case T–6/89 [1991] ECR II–1695. Estée Lauder, Case 37/79 [1980] ECR 2481. Factortame II, Case C–213/89 [1990] ECR I–2433. Factortime I, Case C–128/92 [1994] ECR I–1209. Familiapress, Case C–368/95 [1997] ECR I–3689. Fantask, Case C–188/95, [1997] ECR I–6783. Ford, Joined Cases 228–229/82 [1984] ECR 1129. Foto-Frost v. Hauptzollamt Lübeck Ost, Case 314/85 [1987] ECR 4199. France v. Commission, Case C–325/91 [1993] ECR I–3283. Francovich v. Italian Republic, Joined Cases C–6/90 and 9/90 [1991] ECR I–5357.

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G. Vaassen-Göbbels v. Management of the Beambtenfonds voor het Mijnbedrijf, ECJ [1966] ECR 258. Geigy v. Commission, Case 52/69 [1972] ECR 787. Germany v. Commission, Case C–240/90 [1992] ECR I–5367. Greenpeace, Case C–321/95 P [1998] ECR I–1651. Greenpeace, Case T–585/93 [1995] ECR II–2205. Grifoni, Case C–308/87 [1994] ECR I–341. Guérin Automobiles v. Commission, Case C–282/95 [1997] ECR I–1503. H.J. Banks & Co. Ltd v. British Coal Corp., Case C–128/92 [1994] ECR I–1212. Handels-og Kontorfunktionærernes Forbund I Danmark v. Dansk Arbejdsgiverforening [1989] ECR 3199. Hauptzollamt Bremen-Freihafen v. Waren-Import-Gesellschaft Krohn & Co., Case 74/69 [1970] ECR 451. Hoffmann La Roche, Case 85/76 [1979] ECR-461. Hoffmann-La Roche v. Centrafarm Vertriebsgesellschaft Pharmazeutischer Erzeugnisse mbH, Case 107/76 [1977] ECR 957. Höfner and Elser v. Macrotron, Case C–41/90 [1991] ECR I–1979. Hüls v. Commission, Case C–199/92 P [1999] ECR I–4287. Hydrotherm v. Compact, Case 170/83 [1985] ECR 3016. J.J.Wouters (a.o.) v. Nederlandse Orde van Advocaten, Case C–309/99, judgment of 19 February 2002. Kerpen & Kerpen, Case 319/82 [1983] ECR 4173. Kingdom of the Netherlands and Gerard van der Wal v. Commission, Joined Cases C–174/98 P and C–189/98 P, [2002] ECR I–1577. La Cinq, Case T–44/90 [1992] ECR II–1. Lemmerz-Werke GmbH v. High Authority, Joined Cases 53 and 54/63 [1963] ECR 239. Limburgse Vinyl Maatschappij a.o. v. Commission, Joined Cases T–305/94, T–306/94, T–307/94, T–313/94, T–314/94, T–315/94, T–316/94, T–318/94, T–325/94, T–328/94, T–329/94 and T–335/94 [1999] ECR II–945. LTM v. Maschinenbau Ulm, Case 56/65 [1966] ECR 235. Marshall v. Southhampton and South-West Area Health Authority (Marshall II), Case C–271/91 [1993] ECR I–4367. Masterfoods v. HB Ice Cream, Case C–344/98 [2000] ECR I–1214. Mulder and Others v. Council and Commission, Joined Cases C–104/89 and C–37/90 [1992] ECR I–3061. Municipality of Almelo et al. v. Energiebedrijf Ijsselmij NV (Almelo), Case C–393/92 [1994] ECR 1477. Musique Diffusion Française v. Commission, Joined Cases 100 to103/80 [1983] ECR 1908. Nordsee Deutsche Hochseefischerei GmbH v. Reederei Mond Hochseefischerei Nordstern AG & Co. KG, Case 102/81 [1982] ECR 1095. Nungesser v. Commission, Case 258/78 [1982] ECR 2015. NV Algemene Transport- en Expeditie Onderneming Van Gend en Loos v. Nederlandse Administratie der Belastigungen, Case 26/62 [1963] ECR 1.

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Océano Grupo, Joined Cases C–240/98 to C–244/98 [2000] ECR I–4941. Orkem v. Commission, Case 374/87 [1989] ECR 3283. Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs und Zeitschriften Verlag GmbH & Co. KG et al., Case C–7/97 [1998] ECR I–7791. Otto v. Postbank, Case C–60/92 [1993] ECR I–5683. Pasquale Foglia v. Mariella Novello, Magliano Alfieri (II), Case 244/80 [1981] ECR 3045. Peterbroeck, Van Campenhout & Cie SCS v. Belgian State, Case C–312/93 [1995] ECR I–4599. PreussenElektra AG, Case C–379/98, [2001] ECR I–2099. Rechberger, Case C–140/97 [1999] ECR I–3499. Remia v. Commission, Case 42/84 [1985] ECR 2545. Rewe v. Hauptzollamt, Case C–158/80 [1981] ECR 1805. Rhône – Poulenc v. Commission, Case T–1/89 [1991] ECR II–867. Sacchi, Case 155/73 [1974] ECR 409. Sandoz v. Commission, Case C–277/87 (Summary publication) [1990] ECR I–45. SCA Holding v. Commission, Case T–327/94 [1998] ECR II–1373. SFI v. Belgium, Case C–85/97 [1998] ECR I–7447. Srl CILFIT & Lanificio di Gavardo SpA v. Ministry of Health (I), Case 283/81 [1982] ECR 3415. Stergios Delimitis v. Henninger Bräu AG, Case C–234/89 [1991] ECR I–935. The Netherlands v. Commission and Gerard van der Wal Joined Cases C–174/98 P and C–189/98 P Joined Cases C–174/98 P and C–189/98 P [2000] ECR I–1. Tournier, Case 395/87 [1989] ECR 2521. Tréfileurope v. Commission, Case T–141/89 [1995] ECR II–856. VAG France, Case 10/86 [1986] ECR 4071. Van Schijndel and Van Veen v. SPF, Joined Cases C–430/93 and C–431/93 [1995] ECR I–4705. Van Uden, Case C–391/95 [1998] ECR I–7122. Walt Wilhelm et al., Case 14/68 [1969] ECR 1. Zuckerfabrik Süderdithmarschen, Joined Cases C–143/88 and C–92/89 [1991] ECR I–413. Zwartveld, Case C–2/88 [1990] ECR I–4405.

Cases from EC Member States: France:

CA de Versailles, 5 Mai 1988, Gazette du Palais 1986, 876. CA de Lyon, 13 June 1960, Dalloz 1961, 148 (note by Goré). CA de Lyon, 2 June 1988, Gazette du Palais 1988, 1, juridique, 669, Quotidien juridique, 2 March 1989, no. 26, 15.

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CA de Lyon, 2 June 1988, Petites affiches 27 June 1988, 6. CA de Paris, 1st October 1980, Dalloz 1983 IR, 222 (observations by Gavalda and de Leyssac), Revue trimestrielle de droit commercial 1983, 791 (observations by Alfandari et Jeantin). CA de Paris, 20 December 1971, Gazette du Palais 1972, 702. CA de Paris, 23 March 1989, Gazette du Palais 1989, 551, Revue trimestrielle de droit civil 1989, 537 (observations by J. Mestre). CA de Paris, 29 May 1986, Dalloz 1986, informations rapides, 308. CA de Paris, 4 May 1961, Jurisclasseur édition générale 1962, II, n12517 (note by Gendrel and Lafarge). CA de Paris, 5ème chambre, 12 December 1996, Bulletin rapide de droit des affaires 1997/3, 12, Revue juridique de droit des affaires 1997/5, no. 665. CA de Paris, 5ème chambre, 3 November 1982, Gazette du Palais 1984/1 juridique, 58 (note by Laurent), Dalloz 1985, Informations rapides, 219 (note by Ch. Gavalda an Cl. Lucas de Leyssac). CA Lyon, 19 October 2000, Juris-data no. 138 087. CA Nancy, 27 November 1987, Gazette du Palais 1988.1.251. CA Paris, 13 May 1993, Europe, July 1993, comm. no. 300, Journal du droit international, 1993, 957 (note by L. Idot). CA Paris, 13 October 2000, Juris-data no. 126287. CA Paris, 15 February 2001, Dalloz 2001, 1465. CA Paris, 18 February 2000, Volkswagen – Dalloz affaires 2000, AJ, 195. CA Paris, 2 December 1999, Dalloz affaires, 2000, AJ, 92. CA Paris, 20 June 2000, Dalloz affaires, 2000, 382. CA Paris, 23 September 1999, SA Fleury Michon v/Sté Aoste Holding – Jurisdata no. 024258. CA Paris, 29 September 1999, SARL Bourgogne Funéraire – Juris-data no.118625. CA Paris, 30 September 1998, Europe, December 1998, comm. no. 410. CA Pau, 11 May 1999, SARL Anais – Juris-data no. 041680. CA Toulouse, 1 March 1999, Cejibe – Juris-data no. 040 352. Cass. Civ., 16 April 1985, n8315.527, Jurisclasseur édition générale 1985, IV, Cass. Civ., 1ère chambre, 16 July 1959, Bull. civ. I, no. 358, 298. Cass. Civ., 1ère chambre, 26 January 1983, Bull. civ. I, no. 39, 34, Dalloz 1983, 317 (note by A. Breton), Revue trimestrielle de droit civil 1983, 749 (observations by F. Chabas), 773 (observations by J. Patarin). Cass. Civ., 1ère, 24 May 1989, Bull. civ., I, no. 212. Cass. Civ.1ère, 28 May 1984, Bull. I, no. 172 . Cass. Civ.1ère, 30 January 1985, Bull. I, no. 45. Cass. Civ.1ère, 30 June 1998, Juris-data no. 003069. Cass. Com., 1 December 1998, Sté Sodifa – Europe February 1999, comm. no.81. Cass. Com., 1 March 1982, no.8015.834, Bull. civ. IV, 69. Cass. Com., 10 July 1989, Bodson – Bull. civ. IV, 145. Cass. Com., 10 July 1989, Bull. IV, no. 216.

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Cass. Com., 10 October 2000, SA Cachia Holding – Juris-data n° 006177, Les Petites Affiches, 20 April 2001, no. 79. Cass. Com., 10 October 2000, Sté Catamini v/Sté Cofotex – Les Petites Affiches, 20 April 2001, no. 79, 5. Cass. Com., 12 July 1993, Bonet – Europe, November 1993, no. 446. Cass. Com., 13 January 1998, Sté Gift Shop – Europe, December 1998, comm. no. 410. Cass. Com., 13 January 1998, Sté L’Oceane Automobiles – Europe, December 1998, comm. no. 410. Cass. Com., 14 December 1999, Mme Sterczinski – Bull. IV, no. 227. Cass. Com., 14 December 1999, Zilliotto – Dalloz affaires, 2000, 79. Cass. Com., 14 February 1995, Bull. IV, no. 48, Europe, April 1995, comm. no. 146. Cass. Com., 14 February 1995, Bull. IV, no. 48. Cass. Com., 14 January 1992 (2 decisions), Bull. IV, nos.12 and 13. Cass. Com., 14 January 1992, (2 decisions), Bull. IV, nos. 12, 13. Cass. Com., 15 July 1992, Bull. IV, no. 275. Cass. Com., 15 July 1992, Bull. IV, no. 92. Cass. Com., 15 October 1996, Europe, December 1996, comm. no. 471. Cass. Com., 16 April 1991, no. 915.340, Jurisclasseur édition G. 1991, IV, 233. Cass. Com., 17 July 1990, Dalloz 1991 Jur. 471 (note by Reynés), Jurisclasseur éd. G, 1990.II.20436 (note by Virassamy). Cass. Com., 17 November 1998, Pluri-Publi – Bull. IV, no. 271, Europe, January 1999, comm. no. 32. Cass. Com., 18 February 1992, Bull. IV, no. 78. Cass. Com., 18 February 1992, no. 8712.844, Jurisclasseur édition générale 1992, IV, 127, no. 1161, Revue trimestrielle de droit civil 1992 (note by J. Mestre). Cass. Com., 2 December 1986, no.8510.547, Bull. Civ. IV, 197, Revue du droit de la propriété industrielle 1987, 11, Jurisclasseur édition générale 1987, IV, 50. Cass. Com., 20 January 1987, Bull. IV, no. 21. Cass. Com., 20 March 1990 (2 decisions), Bull. IV, no. 85 et 86. Cass. Com., 20 March 1990, Bull. IV, no. 85 et 86, Dalloz 1991, somm. 253. Cass. Com., 21 June 1994, Bull. IV, no. 235. Cass. Com., 22 January 1991, no.8816.188, Revue juridique de droit des affaires 1991/3, 202. Cass. Com., 23 February 1994, Bull. IV, no. 74. Cass. Com., 23 March 1999, Volkswagen – Revue trimestrielle de droit commercial, 2000, 255. Cass. Com., 24 March 1991, Quantel, Jurisclasseur éd. G, II. 21887 (note by Virassamy). Cass. Com., 24 October 2000, C.S.M. v. Caulet – Dalloz affaires 2000, 429 (observations by A. Marmontel), Les Petites Affiches, 20 April 2001, n° 79, p. 10–11. Cass. Com., 25 March 1991, no. 89–10.800, Dalloz 1991, 124. Cass. Com., 25 March 1991, nos. 8910.800 and 8911.124.

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Cass. Com., 26 January 1999, Soc. Automobile J.Y. Berthier – Les Petites affiches, 1999, no. 58. Cass. Com., 26 January 1999, Sté Automobiles J.Y. Berthier – Bull. IV, no. 29, Europe, June 1999, comm. no. 116. Cass. Com., 26 March 1979, no. 7711.290, Bull. civ. IV, no. 113, 88, Jurisclasseur édition G. 1979, II, n19249 (note by Jeantet). Cass. Com., 26 May 1992, no. 9013.499. Cass. Com., 27 April 1981 – Dalloz 1982, p. 51. Cass. Com., 27 February 1996, Bull. IV, no. 63, Europe, May 1996, comm. no. 209. Cass. Com., 27 February 1996, Europe, April 1996, comm. no.158. Cass. Com., 27 June 1989, Jurisclasseur éd. G, 1990.II.21530. Cass. Com., 3 January 1996, no. 9413.169. Cass. Com., 4 January 1994, Bull. IV, no. 2. Cass. Com., 4 June 1991, Bull. IV, no. 202. Cass. Com., 4 June 1996, Europe, June 1996, comm. no. 256. Cass. Com., 6 April 1993, Bull. IV, no. 137. Cass. Com., 6 April 1999, Daubresse – Europe, January 2000, comm. no. 25. Cass. Com., 6 April 1999, Phildar – Revue trimestrielle de droit commercial, 2000, 257. Cass. Com., 6 May 1996, France Telecom – Europe, July 1996, comm. no. 287. Cass. Com., 7 April 1998 (2 decisions), Bull. IV, nos. 125 et 126. Cass. Com., 7 December 1993, Bull. IV, no. 450. Cass. Com., 7 February 1995, Bull. IV, no. 35. Cass. Com., 7 February 1995, no.9311.378, Revue juridique de droit des affaires 1995/6, nos. 733 et 797. Cass. Com., 7 October 1997, Bull. IV, no. 245. Cass. Com., 9 April 1996, Europe, June 1996, comm. no. 256. Cass. Com., 9 July 1996, Bull. IV, no. 204. Cass. Com., 9 Mai 1990, no. 8815.625, Dalloz 1990, 509 (note by P. Jourdain). Cass. Com., 9 May 1990, Bull. IV, no.136. Cass. Com., 9 November 1993, Bull. IV, no. 386. Cass. Com., 9 October 1999, Le Brasseur v/Sté Automobile des garages Sorin – Revue trimestrielle de droit europeén, 2000.256, obs. by S.P.P. Cass. Crim., 14 December 1995, R. Lebourgeois – Bull. crim., no. 384, 1126. Cass. Crim., 16 February 1991, Bull. crim., no. 210. Cass. Crim., 16 May 1991, Bull. crim., no. 210. Cass. Crim., 16 May 1991, Bull. crim., no. 211. Cass. Crim., 16 November 1999, Bull. crim., no. 263. Cass. Crim., 17 March 1992, Bull. crim., no. 114. Cass. Crim., 2 February 1994, Bull. crim., no. 48. Cass. Crim., 25 November 1992, Bull. crim., no. 389. Cass. Crim., 29 January 1997, Bull. crim., no. 40. Cass. Crim., 31 March 1992, Bull. crim., no.138. Cass. Soc., 22 June 2000, Les Petites affiches, 20 April 2001, no. 79.

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Cass. Soc., 25 January 1996, Europe, April 1996, no. 158. Cass., Crim., 16 November 1999, Bull. crim., no. 263. CE, 12 February 1997, FFSA, Europe, May 1997, comm. no. 161. CE, 8 November 1996, FFSA, Europe, December 1996, comm. no. 468. Cour de cassation, 1ère chambre civile, 3 December 1985, n8412.295, Jurisclasseur édition G. 1986, IV, 63. T. com. de Nanterre, 29 May 1998, Les Petites Affiches, 1999, no.159 (note by Fl. Le Cohennec). T. Com. Paris, 30 May 2000, Dalloz affaires, 2000, 349. T. Com., Paris, 10 October 2000, Sté OCP Repartition v/ Sté Laboratoires Merck – Juris-data no.134562. T. com., Paris, 22 October 1996, Europe, December 1996, comm. no. 471. TGI, Paris, 31 January 1986, Magne v. VAG – Gazette du Palais 1986/2, somm. 445. Germany BGH 10.11.1987, Neue Juristische Wochenschrift 1988, 2175. BGH 19.6.1986 VersR 1986, 1019, 1020 f.; OLG Nürnberg 10.12.1992 TranspR 1993, 138, 139. BGH 23.10.1979, Neue Juristische Wochenschrift 1980, 1224. BGH 6.3.1980, Neue Juristiche Wochenschrift 1980, 2522. BGH Case KZR 23/96 Depotkosmetik, Wirtschaft und Wettbewerb/Entscheidungssammlung DE-R 206 (BGH 1998). BGH Case KZR 3/68 Fruchtsäfte, Wirtschaft und Wettbewerb/Entscheidungssammlung BGH 1000 = 1969 Neue Juristische Wochenschrieft 978. BGH Case KZR 43/71 Eiskonfekt I, Wirtschaft und Wettbewerb/Entscheidungssammlung BGH 1226, 1231 sq. (BGH 1972); case KZR 18/84 Schaumstoffplatten, Wirtschaft und Wettbewerb/Entscheidungssammlung BGH 2565, 2567 (BGH 1989). BGH Case KZR 43/71 Eiskonfekt, Wirtschaft und Wettbewerb/Entscheidungssammlung BGH 1226, 1227 = 1972 Neue Juristische Wochenschrieft 2180, 2181. BGH Case NZR 15/86 Cartier-Uhren, Wirtschaft und Wettbewerb/ Entscheidungssammlung BGH 2451, 2457 (BGH 1987). BGH Case NZR 21/78 BMW-Importe, Wirtschaft und Wettbewerb/ Entscheidungssammlung BGH 1643, 1645 (BGH 1979). BVerG Case 1 BvR 1036/99, 2001 Zeitschrift für Wirtschaftsrecht 350. BVerG Case 89/1993, 155. RG 31.12.1898, RGZ 43, 56. RG 8.6.1895, RGZ 35, 63.

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Italy Corte d’appello di Milano 12/07/1995, Ceit/Novamont-Ciuffo Gatto. Corte d’appello di Milano 15/05/1996, Auchan v. Faid. Corte d’appello di Milano 20/09/1995, Sanguinetti/Ania. Corte d’appello di Milano 21/3/1993, BB Center Parabella. Corte d’appello di Milano 29/09/1999, Inaz Paghe v. Consiglio Nazionale Ordine Consulenti del Lavoro. Corte d’appello di Milano 31/01/1996, Comis/Ente Fiera Milano. Corte d’appello di Milano, 18/06/1995, Telsystem v. Sip. Corte d’appello di Milano, of 30 May/3 June 1995, Ceit/Novamont-Ciuffo Gatto (final judgment of 5 June/12 July 1996). Corte d’appello di Milano, Order 10/16 January 1996, SCAMM S.r.l./FAI Komatsu Industries S.p.a. Corte d’appello di Milano, Order 7/15 July 1992, A.V.I.R. S.p.a./ENEL. Corte d’appello di Napoli, Order 13/14 July 1993, V.E.A.R./R.S. Components Ltd. Corte d’appello di Roma, Omnitel/Telecom. Corte d’appello di Roma, Order 20/1/1993, Gruppo Sicurezza v. Aeroporti di Roma. Corte d’appello di Roma, Order 20/28 December 1994, S.r.l. Giovanni Grassano/Consorzio obbligatorio degli olii usati. Corte d’appello di Trieste, Order 12/16 May 1995, Duratorre-Del Rivo/Litoranea Editoriale s.r.l. Corte di Cassazione, 14 May 2001, Istituto Biochimico Italiano Lorenzini/ Bayer AG.. Corte di Cassazione, Avir/ENEL, Telsystem/Sip and Comis/Ente Fiera di Milano, Decisions of 15 July 1992, and 5 February 1996. Pretura di Firenze, 16 September 1980, in G.A.D.I., 1980, 1334. Pretura di Milano 19 July 1991, in Foro pad., 1992, 166. Pretura di Milano, 15 February 1973, in G.A.D.I., 1973, 295. Pretura di Monza, 20 December 1989, in G.A.D.I., 1990, 283. Pretura di Monza, 26 July 1984, in G.A.D.I., 1985, 215. Pretura di S. Donà del Piave 9 November 1981, ivi , 1981, 1443. Pretura di Venezia 29 October 1992, Foro italiano, 1994, I, 933. Tribunale Benevento, 8 April 1999, in Giur. mer., 1999, 703. Tribunale di Firenze, 15 May 1993, 1994, 3215, e 22 marzo 1995, 1995, 3302. Tribunale di Firenze, Order 5 March 1998 in G.A.D.I., 1998, n. 3798 e 7 maggio 1998, n. 3809. Tribunale di Milano, 4 July 1985, in G.A.D.I., 1985, 1940 e 6 July 1989, 1989, 50. Tribunale di Monza 11 December 1993, 1994, 491; Trib Torino, Lego System A.S. e Lego S.p.a./Lima S.r.l., Orders 20 November 1998 e 22 December 1998, Rivista di diritto industriale, 1999, II, 3. Tribunale di Roma, 16 March 1994, in G.A.D.I., 1994, 749.

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Tribunale di Roma, 16 March 1995, 1995, 3302 e 8 June 1995, 1995, 3322. in G.A.D.I. United Kingdom Apple Corps Ltd v. Apple Computer Inc. [1992] 1 Common Market Law Review 969 (High Court). Askin v. Borchard [2000] UK CLR 495 (High Court). British Steel v. Customs and Excise Commissioners [1997] 2 All ER 366. De Cubber v. Belgium A/86 (1984). Findley v. United Kingdom A/110 (1997). Iberian UK v. BPB Industries Ltd [1996] 2 Common Market Law Reports 601 (High Court). Morgan Stanley Dean Witter v. Visa, judgment of 2 May 2001 (High Court). MTV Europe v. BMG Record (UK) Ltd. [1997] European Law Reports 100 (CA). Society of Lloyd’s v. Clementson [1995] Common Market Law Reports 693 (CA). Synstar Computer Service (UK) Ltd. v. ICL (Sorbus) Ltd., judgment of 30 March 2001 (High Court) reported in The Times, May 1 2001. Tinsley v. Milligan [1992] Ch. 310 (CA) [1993] 3 Weekly Law Reports 126.

Arbitration Cases & Cases from Non-EU Jurisdictions 1994/95 Rep. EFTA Ct., 113, Mattel/Lego E-Gr. 14, 1996 Common Market Law Review, 313. 1994/95 Rep. EFTA Ct., 15, Restamark E-Gr. 7-31, 1995 Common Market Law Review, 161. 1994/95 Rep. EFTA Ct., 59 ff. Scottish Salmon Growers, 1995 Common Market Law Review 851 et seq.. 1998 Rep. EFTA Ct., 38 ff. Husbanken I, 1998 Comon Market Law Review, 281 et seq. 1998 Rep. EFTA Ct., 4, Opel Norge, 36 Common Market Law Review 1, 1999, 147 ff. ATF 118 II 193. BGE 104 II 175 Adams. Bigelow v. RKO Radio Pictures, 327 U.S. 251 (1946). Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation Ltd., [1979] 3 WLR 471, 479. CA Paris, 14 October 1993, Revue de l’Arbitrage, 1994, 164 (note by Ch. Jarrosson), Europe, April 1994 (comm. by L. Idot) no.155. CA Paris, 19 May 1993, Journal de droit international, 1993.957, note by L. Idot; Revue de l’Arbitrage, 1993.645 (note by Ch. Jarrosson).

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ECHR Case no. 56672/2000, commented in (2000) 21 Human Rights Law Journal 112. ECHR, 8 June 1976, Engel, Ser. A, vol. 22. ECHR, 21 February 1984 Öztürk, Ser. A, vol 73. ECHR, 25 August 1987, Lutz, Ser. A, vol. 123. ECHR, 7 October 1988 Salabiaku, Yearbook of the European Convention of Human Rights, 1988. ICC Award n°1512, Yearbook Commercial Arbitration, 1976. Kelly v. Kosuga, (1959) 358 US 516, 520–21. Lessig v. Tidewater Oil Co., 327 F.2d 459 (9th Cir. 1964). Metrix Warehouse, Inc. v. Mercedes-Benz, 828 F.2d 1033 (4th Cir. 1987), cert.den. 108 S.Ct. 1753 (1988). Mitsubishi Motor Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985). Mozart Co. v. Mercedes Benz, 833 F.2d 1342 ( 9th. 1987). Spectrum Sports, Inc. v. McQuillan .506 U.S. 447 (1993). Swiss Trib. Fed., 28 April 1992, Revue de l’Arbitrage 1993, 124 – (note by L. Idot). U.S. v. Watchmakers of Switzerland Info. Center, Inc., 1963 Trade Cases (CCH) § 70,600 (S.D.N.Y. 1962). United States v. Microsoft Corp., 84 F. Supp. 2d 9 (D.D.C. 1999) (findings of fact); 87 F. Supp. 2d 30 (D.D.C. 2000) (conclusions of law).

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On 1–2 June 2001 the European University Institute (EUI) hosted the sixth Annual EC Competition Law and Policy Workshop. This programme started in 1996 by professors Giuliano Amato and Claus-Dieter Ehlermann at the Robert Schuman Centre of the EUI and it brings together every year top-level policy-makers, academics and legal specialists to discuss critical issues of EC competition policy. The first Workshop (1996) focused on the problems of implementing competition policy in a federal context.1 The second (1997) debated the objectives of competition law and policy.2 The third (1998) analysed how to ensure effective competition in the rapidly evolving market of telecommunications.3 The fourth (1999) examined selected problems of state aid control.4 The fifth (2000) was devoted to the debate about the modernisation of EU antitrust law.5 The sixth edition of the Workshop dealt with the issue of effective private enforcement of EC antitrust law. This publication includes a transcript of the discussions and a collection of the written contributions presented by the participants at the Workshop. The timing of the event was significative. It took place two years after the European Commission published its groundbreaking White Paper containing its suggestions for the reform of EC competition law enforcement6 and eight months after the Commission’s official proposal for a regulation amending the monumental Regulation 17.7 1

Ehlermann C.-D. and Laudati L.I., eds. (1997), The Robert Schuman Centre Annual on European Competition Law 1996, The Hague, Kluwer Law International. 2 Ehlermann C.-D. and Laudati L.I., eds. (1998), European Competition Law Annual 1997 — Objectives of Competition Policy, Oxford, Hart Publishing. 3 Ehlermann C.-D. and Gosling L., eds. (2000), European Competition Law Annual 1998 — Regulating Communications, Oxford, Hart Publishing. 4 Ehlermann C.-D. and Everson M., eds. (2001), European Competition Law Annual 1999: State Aid Control in the European Union—Selected Problems, Oxford, Hart Publishing. 5 Ehlermann C.-D. and Atanasiu I., eds. (2001), European Competition Law Annual 2000: The Modernisation of EC Antitrust Policy, Oxford, Hart Publishing. 6 European Commission, White Paper of 28 April 1999 on Modernisation of the Rules Implementing Articles 85 and 86 of the EC Treaty, COM(1999) 101 final, OJ [1999] C 132/1. 7 Commission Proposal for a Council Regulation on the Implementation of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty and Amending Regulations (EEC) No 1017/68, (EEC) No 2988/74, (EEC) No 4056/86 and (EEC) No 3975/87 (“Regulation Implementing Articles 81 and 82 of the Treaty”), COM(2000) 582 final, OJ [2000] C 365E/284.

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The 2001 Workshop comes as a sequence to the 2000 one and it focuses on a very important parameter of the whole modernisation debate, private enforcement of EC competition law. It should be stressed that an effective private enforcement was stated to be one of the main objectives of the reform. Indeed, many pertinent points were raised throughout the 2000 Workshop proceedings and it was felt that a more detailed analysis of this fundamental issue was wanting. The proceedings of the 2001 Workshop were structured in four sessions. Panel 1 was devoted on the substantive remedies available for an effective private enforcement of EC antitrust, whereas Panel 2 examined the procedural issues involved. Panel 3 dealt with a very specific albeit extremely important aspect, that of private arbitration. Finally, Panel 4 debated a different issue of fundamental interest, the possibility to introduce also a system of criminal enforcement of EC competition law. The Workshop revealed first of all a general consciousness that the reforms envisaged by the Commission would very soon come to reality and that an entirely new system of enforcement would exist, where the Commission would still enjoy its central policy role, but other players would also be present at a decentralised level: national competition authorities and national courts.8 Secondly, there was a broad consensus that an effective private enforcement of EC competition rules at national courts would be a welcome development, bearing in mind the current reduced role of private actions in national courts. However, the best model for Europe would be a mixed system, where public and private enforcement will be complementary to each other. Thirdly, it was thought that although the proposed reform and the measures envisaged by the Commission as to the application of EC competition law by national courts were in the right direction, at the same time they were not sufficient to lead to an enhanced private enforcement. The whole issue of private enforcement had to be seen in an autonomous way, by introducing powerful incentives at the Community and national levels. Fourthly, the debate on criminal enforcement showed that, at least with reference to imprisonment, this was still a sensitive issue, notwithstanding that public enforcement could be made more effective by adding individual fines to existing corporate ones. Background. The decentralised system of competition enforcement that the Commission advocates in its White Paper and in its Draft Regulation will have profound consequences in the way EC competition law is enforced. Most commentators agree that certainly an impact will be felt in private antitrust enforcement, which is expected to grow from a rather meagre to a more complete and mature system. In the White Paper the Commission has in a very powerful way referred to this perspective by admitting that the current system is hardly encouraging for 8 This holds true for Article 81 EC, since in the new system the Commission’s exemption monopoly will be abolished and this provision will be enforced as a whole by the same authority or in the same forum. A parallel competence system, at least as far as national courts are concerned, has obviously existed for Article 82 EC.

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such a development. In its words, ‘since national competition authorities and courts have no power to apply Article 81 (3), companies have used this centralised authorisation system . . . to block private action before national courts and national competition authorities. This has undermined efforts to promote decentralised application of EC competition rules. As a result, the rigorous enforcement of competition law has suffered and efforts to decentralise the implementation of Community law have been thwarted’.9 Indeed, private enforcement of EC antitrust law as part of its effective decentralisation is considered by the Commission as one of the main objectives of the proposed reforms, those objectives being firstly the refocusing of the Commission’s activity towards combating the most serious restrictions of competition through the ending of the system of notification and authorisation while ensuring an intensified ex post control, secondly the decentralised application of the competition rules while maintaining consistency throughout the Community, and thirdly the easing of the administrative constraints on undertakings while providing them with sufficient legal certainty.10 The advantages of private antitrust enforcement have long been stressed in the United States, where studies estimate its ratio to public antitrust suits between 10 to 1 and 20 to 1. Invariably, two basic functions are attributed to private enforcement of public laws, and particularly of antitrust laws. One appertains to corrective justice. Private actions ensure that those who are harmed by anticompetitive conduct are compensated. The other, maybe more important, function of private enforcement is the deterrent effect of such action, particularly of civil actions for punitive damages. A further advantage is that in this way the weaknesses of public enforcement, most notably the ‘enforcement gap’ generated by the perceived inability of public enforcement to deal with all attention-worthy cases, are counter-balanced. Private enforcement, thus, acquires an instrumental role, which explains the private litigant’s status in the US as ‘private attorney-general’. However, the US system avails itself of a whole array of weapons that make private suits very efficient: treble damages, pre-trial discovery, class actions, contingency fees, not to mention a far more unitary legal and judicial system than the European one. The question, therefore, that dominated the Workshop proceedings was not whether to have (more) private enforcement of antitrust law in Europe but rather how. A preliminary question is to define private enforcement. If private enforcement were to be given a rather broad meaning, i.e., if it meant enforcement of EC antitrust rules through the initiative or intervention of private parties, then one could argue that such a definition seems to cover cases of private parties acting also as complainants to competition enforcement agencies. In the Workshop proceedings this was defined as ‘privately triggered public enforcement’. Indeed, if the criterion is so general, the conclusion is that already there is a sort of private enforcement at the central level, i.e. at the EC Commission 9 10

Para 6 of the White Paper. Paras 41, 42, 74 and 75 of the White Paper.

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level. Complainants in EC competition cases, more as a result of jurisprudence than of EC legislation, enjoy a rather elaborately defined legal status, and are also accepted as players in the antitrust enforcement. However, this is not how we conceive private antitrust enforcement. Therefore, we can delimit further that concept, by noting that any private parties involved in the enforcement of antitrust rules must do so as litigants in a litigation procedure as against the perceived offenders of those rules. However, even so, such delimitation would not avoid including cases, where private parties participate in an already existing litigation, which is primarily between an administrative authority and a defendant. In such cases private parties may join such litigation as interveners, if they can prove a direct and legitimate interest. This could be the case at the Community level, e.g. a third party intervention at the Court of First Instance (CFI) level, or at the national level depending on national procedural rules, e.g. a third party intervention in a litigation where the competition law offender appeals against a decision of a national antitrust authority. However, such intervention cannot qualify this litigation as private antitrust enforcement. The characteristic element of the latter is that it leads to some sort of civil sanction as against the offender: damages, restitution, injunctions, voidness of a contractual relationship, non-invocability of certain claims based for example on contract or on unfair competition law. Therefore, the mere intervention of a private party in a public enforcement litigation, does not turn the latter into a private enforcement one, although such intervention may be beneficial to the effectiveness of public enforcement (for example because of pooling of public and private resources in the detection of a cartel).11 As a consequence, a more appropriate definition of private enforcement would refer to a litigation, in which private parties advance independent civil claims or counter-claims based on the EC competition provisions. Such a definition would basically cover civil litigation, but it would be broad enough to encompass third party civil claims attached to civil/administrative proceedings, when courts exercise a judicial review of national competition authorities’ decisions, if this is permissible under national procedural law. Finally, another version of private enforcement is when a national antitrust authority, or, indeed, the EC Commission intervene as amici curiae in civil proceedings between private parties. The litigation in such cases will retain basically the characteristics of private enforcement, but with some additional elements of administrative enforcement. These categorisations prove that a clear-cut definition of private enforcement is not always easy. At the same time it becomes clear that an effective system of private enforcement should by no means be thought of as antagonistic to the 11 Even such intervention in public enforcement cases may be relevant for private enforcement, when the latter follows in time and relies on the former, if for example facts established in a public enforcement litigation become binding on the parties of a subsequent civil litigation, as is the case in English law.

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public enforcement model. Instead, the two models can ideally work in a complementary manner. Indeed, such complementary function was advocated by the majority of the participants and there are valid reasons to believe that such a mixed model may well be the system of tomorrow. The Workshop Proceedings. The Annual EC Competition Law and Policy Workshops hosted by the EUI in Florence provide an ideal forum for the informal debate of critical issues in EU competition policy among policy makers and actors involved in EU competition law implementation. The sixth edition of the Workshop brought together a group of 33 top-level participants, including: high-ranking Commission officials; very senior judges from the EU, EFTA and Member States courts; academics; and outstanding practitioners in the field of antitrust, Community, and arbitration law. The event was co-chaired by ClausDieter Ehlermann and Karel van Miert. The proceedings of the Workshop were opened by Commissioner Mario Monti. Professor Monti reiterated that a more effective private enforcement of EC competition rules constituted an important objective of the whole reform. He went on to advocate the complementary functions of public and private enforcement that would lead to a strengthening of the impact of EC competition rules. In this combined enforcement system the victims of anticompetitive practices, including consumers, must have the opportunity to avail themselves of effective remedies in the form of decentralised private enforcement, in order to protect their rights and to obtain compensatory damages for losses suffered.12 That would also bring the implementation of EC antitrust law closer to the citizen. The Commission under the proposed system would retain its central position and function, especially in the legislative development of EC competition policy and in the implementation of the latter in specific cases that can serve as precedents. Professor Monti was confident that the abolition of the Commission’s exemption monopoly would further private antitrust enforcement in Europe. He thought that the Draft Regulation of September 2000 contained some important elements intended to facilitate the application of EC competition rules by national courts. These were the rule on the burden of proof of Article 2, the co-operation mechanism of Article 15 and the possibility of the Commission or of national competition authorities to make amicus curiae submissions before national courts. Reference was also made to the Article 234 EC preliminary reference procedure. However, in his view, the eventual provision by means of Community legislation for further incentives would raise delicate questions that might endanger at the current stage the realisation of the already revolutionary proposals of modernisation. Finally Commissioner Monti welcomed academic discussions about the possibility of a criminal enforcement of EC competition law, but stressed that the 12 It is interesting to note that Professor Monti did not stay only at the compensatory qualities of such damage awards, but also stressed their contribution to the deterrent effect of the competition rules. This reference echoes some elements of the ‘private attorney-general’ function of the private litigant in US antitrust.

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introduction of criminal sanctions might risk creating some problems, presumably of institutional-political nature, and that in any case this was not the only way to attain efficiency of enforcement, at least at this stage. Panels 1 and 2 during the first day of the Workshop were entirely devoted to the various substantive and procedural law parameters of EC private antitrust enforcement. The contributions for each of these two panels are preceded by a synthesis report written from a Community law point of view. A preliminary point to be made is that it quickly emerged out of the written contributions and the discussion that the two issues were in effect inseparable. In addition, there is often not a clear-cut distinction between substance and procedure among the different legal systems in Europe. Indeed, most participants in their contributions and interventions felt free to address both the substantive and the procedural aspects of the application of EC competition rules by national courts. The majority of participants thought that the modernisation of EC competition law enforcement and the direct effect of Article 81(3) will have a certain impact on civil litigation before national courts at least in theory. In particular, as far as time is concerned, the abolition of Commission’s exemption monopoly would on the balance be positive for national litigation, since the courts would be able ‘to address the full range of competition law for the first time’ in the words of one participant. In addition, it is noteworthy that the ‘old’ question regarding the judges’ suitability to deal with the highly complex economic issues that the application of Article 81(3) entails was answered in the positive by the overwhelming majority of participants. However, a substantial number of participants thought that the modernisation project and the forthcoming direct effect of Article 81(3) EC, though in the right direction, would not nevertheless contribute significantly towards the development of a system of effective private enforcement. The argument was that Article 81(3) and the possibility of an exemption rarely come into play in cases, where there may be a substantial liability of a person that has committed a serious violation of the competition rules and has inflicted harm upon another. This is more likely to happen either with very serious anticompetitive practices that are not usually notified and would not in any case benefit from the third paragraph of Article 81 or with abuses of dominant position under Article 82, whose enforcement is not affected by the proposed reforms and which has long been recognised as directly effective. With the possible exception of some minor cases, where civil liability might have arisen, but the likelihood of a Commission exemption may have blocked the civil litigation, not much has really changed as to the possibilities of more private enforcement. Most participants thought that if a real objective of the reform was to increase private enforcement of EC antitrust, then many follow-up problems remained that had not been sufficiently addressed by the Commission neither in the White Paper nor in the Draft Regulation. These problems had to do with the fact that the framework of civil litigation in the EU (substantive and procedural) was up to a great extent governed by national and not Community law. Therefore, most would welcome more harmonisation measures.

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In order to proceed to the specifics of private antitrust enforcement one has first to examine the modalities of the application of EC competition law by national courts. The first instance is as a shield. This might be so in contractual liability cases, where the plaintiff claims specific performance of the contract or alleges its breach by the defendant and claims damages, while the latter raises the nullity of the contract or of parts thereof.13 Another instance is unfair competition actions against ‘free riders’, when EC competition law is pleaded in defence. Most participants thought that this kind of civil litigation (‘shieldlitigation’) can hardly account for private enforcement of competition law. Cases where competition law, in particular Article 81(2), has been raised as a shield by defendants have been numerous before national courts, but their contribution towards the development of a more effective system of private enforcement was considered minimal. The authors of the synthesis report on the procedural aspects stressed that in such cases the competition rules are often not invoked by the victim of a restraint but by participants therein, they are pleaded not because and whenever competition is endangered but only incidentally, they are often applied when competition has already been harmed, and their compensatory and deterrent effect is minimal. On the other hand, from a private enforcement perspective, more significant are the cases, where competition law is pleaded as a sword. Usually one party puts forward a claim for injunction, damages, restitution or interim measures that intends to compensate and/or to put an end to the harm caused by the infringement of the EC competition rules.14 While injunctions (usually of an interlocutory nature) are often granted by Member State courts, damages claims are very rare in Europe as opposed to the US. Damages in particular are thought of as the most important limb of private antitrust enforcement. Most of the participants deplored the scarcity of such cases and thought that it is precisely this kind of private enforcement that should be encouraged. A central issue that emerged in the synthesis report on substantive remedies was whether the legal basis for the remedies in private antitrust enforcement were to be found in national or in Community law. While nullity of anticompetitive agreements was prescribed in the Treaty itself (Article 81 (2) EC),15 the same was not true for damages and other remedies. The author of the Community report on substantive remedies, Former Advocate General Walter van Gerven, argued that these remedies were in principle prescribed by 13 In reality the situation will be a bit more complicated, since the plaintiff will most likely counter-plead the compensating qualities of the agreement that make it lawful under Article 81(3). It should be noted that according to Article 2 of the Draft Regulation in such a case the plaintiff will still bear the burden to prove these prevailing qualities. 14 Another possibility is to file an action for the declaration of the nullity of anticompetitive agreement (action en nullité). This type of actions is rare in practice. 15 Contractual relations that prepare, accompany or implement concerted practices or abuses of dominant position, notwithstanding the Treaty’s silence, will also be void. National laws contain specific rules that consider null contracts that are illicit or against public policy.

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Community law itself, while national laws defined the more detailed procedural rules that give effect to these remedies. In particular , the right to damages of the victim of an anticompetitive practice had its basis in Community law itself, exactly as was the case with the principle of state liability under the Francovich case law.16 This view was shared by other participants as well, though some thought that a Community right to damages would not add much, since it was clear that national laws provided for sufficiently clear legal bases upon which one could bring forward damages claims. Others, however, stressed the symbolic importance of the recognition of such a right, which would eliminate a state of ‘mass uncertainty’ of lawyers and clients. Indeed, the ECJ in its judgment in Courage that was rendered a few months after the Workshop did in fact answer this question of principle in the positive.17 In a ruling that indirectly gives support to the Commission’s modernisation plans and may prove a significant boost for private antitrust enforcement in Europe it stressed the Community law basis of the right to damages. In a Francovich-like language the Court underlined the task of national courts to ensure the full effect of Community rules and the protection of individuals’ rights conferred by those rules. The full effectiveness of the Treaty competition rules and, in particular the practical effect of the prohibition laid down in Article 81(1) would be put at risk, if individuals could not claim damages for losses caused by the infringement of those rules.18 Courage is now a reality and it seems that it goes further than certain national laws in encouraging in principle damages claims even between co-contracting parties.19 Leaving this discussion on the Community or national legal basis aside, the conclusion was that damages represented the strongest remedy in antitrust civil litigation, but unfortunately the cases where courts had rendered such awards were extremely rare. Civil suits for damages did not proliferate even in the most obvious cases, where the Commission had already unearthed and severely punished a repugnant cartel or other anticompetitive behaviour that had caused serious financial damages to competitors, customers and consumers.20 According to a participant the psychological factor was the most impor16

Cases C-6/90 and C-9/90, Andrea Francovich et al. v. Italy, [1991] ECR I–5357. Case C–453/99, Courage Ltd. v. Bernard Crehan, judgment of 20 September 2001, [2001] ECR I–6297. 18 Courage, para 26. According to the Court, ‘indeed, the existence of such a right strengthens the working of the Community competition rules and discourages agreements or practices, which are frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the Community’ (para 34). 19 The situation until Courage was that at least German and English law did not allow damages claims of co-contractors based on Article 81 EC. Under the current law national legislation may pose an obstacle to such a Community law right only when the party advancing this claim bears a significant responsibility for the distortion of competition. 20 In France it seems that there are cases where a decision of the Conseil de la concurrence or of the Commission was followed by settlements on civil liabilities between the parties involved. 17

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tant. In his words ‘the single most useful event might be for some bold Community plaintiff to win a significant damages judgment which really “bangs the bell”.’ Most participants thought that the sole compensatory character of damages would not constitute a sufficient incentive for the victim of the breach to bring a private action and a sufficient deterrent for the tortfeasor not to engage in anticompetitive practices. For a considerable number of participants the US model of ‘private attorney-general’ and the possibility to recover treble damages was the only alternative for Europe. The problem with punitive damages is that they are viewed rather unfavourably by the European legal systems, particularly by those of continental countries. On the other hand an American participant thought that while treble damages are, indeed, a powerful incentive for private enforcement in US law, their non-availability in European law might have been overstated by European lawyers. According to him European legal systems provided for a very useful alternative that US law lacked: prejudgment interest. Prejudgment interest could in many cases reach the level of trebled damages. Another participant drew attention to the fact that there is already Community legislation21 that has introduced the element of punitive damages and that this was also feasible for the field of EC competition law. Indeed, the discussion draft of a Regulation drawn up by Former Advocate General van Gerven and annexed to his synthesis report on substantive remedies contains a rule on exemplary damages, according to which damages recoverable could exceed the payable compensation to the harmed person, though for not more than half of it. The reasons for the scarcity of civil antitrust suits in Europe were extensively debated throughout the Workshop proceedings. These were of legalinstitutional and psychological-sociological nature. As far as substantive remedies were concerned, all participants confirmed that in principle national laws did not pose any problem to the development of a stronger private enforcement system. National causes of action were more or less satisfactory.22 Procedural rules were more likely to cause some problems, which were not, however, insurmountable. Most of the participants contrasted the absence in the European legal systems of legal incentives for an effective private enforcement of the EC antitrust rules to the situation in the US, where a whole panoply of treble damages, contingency fees, class actions and pre-trial discovery procedures could be relied upon by prospective private litigants. Others thought that these specific incentives apart, the whole institutional system of antitrust enforcement in Europe was fundamentally different because of the overwhelmingly central role of public enforcement. In the words of one participant the existing 21 Reference was made to the late payments Directive (Dir. 2000/35/EC of 29 June 2000 on Combating Late Payment in Commercial Transactions, OJ [2000] L 200/35), which establishes a legal interest rate of a punitive character. 22 Notwithstanding occasional deficiencies like for example the pre-Courage restrictive rule on co-contractors, whether an obligation to contract (Kontrahierungszwang) can be a remedy in Article 81 cases, etc.

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administrative enforcement model in Europe ‘is proving to be very effective and to some extent alternative to judicial enforcement; and while the protection of private complainants is not the objective of the administrative intervention, the outcome of an antitrust case conducted by the [c]ompetition [a]uthority can be largely equivalent to a judge ruling’. To these one should add the fact that administrative authorities and certainly the Commission have extensive investigatory powers and the procedure before them entails no costs for a complainant. One of the most important problems that was many times mentioned is that civil litigation follows the adversarial system, unlike administrative authorities that follow the investigatory one. This means that civil courts rely on the information provided by the parties. Competition law presupposes an extensive degree of market information. This is particularly true of Article 81(3) but also of Article 82. In this respect the Workshop participants considered the problem of proof as the most serious obstacle towards an effective private enforcement.23 One solution would be to have the Commission fill this gap through the cooperation mechanism of Article 15 of the Draft Regulation, whereby national courts request from the former information in its possession or its opinion. However, many participants thought that such an option would in essence result in overburdening the Commission and, thus, in cancelling the basic stated aim of the reform, which is to enable the Commission to use its limited resources for the persecution of the most flagrant violations of the Treaty competition rules. In addition, it was clear by the interventions of Commission officials that the mechanism of co-operation could not transform the Commission into an investigator for the benefit of national litigation at the request of national courts. A radical solution to address the problem of proof before national courts would be simply to follow the US model and introduce a system of pre-trial discovery. Indeed, some participants adopted such a view at least with regard to pre-trial oral testimony. However, it was counter-argued that such an option was not realistic in view of the particular features of civil procedure, especially in continental countries, where proceedings do not terminate in one trial that has to be prepared in advance, and in any case such a novelty could not be sector-specific for practical reasons, but it would have to apply to the whole of civil procedure. Another solution that gained widespread support by the Workshop participants was to introduce by means of Community legislation under Article 83 EC a procedural duty on the defendant (in a case where EC competition law is pleaded as sword) to bear the burden of proof for certain facts that have occurred in his sphere of influence. Thus, if the plaintiff advanced prima facie evidence of an anticompetitive practice, it would be upon the defendant to prove the lawfulness of the practice in question by providing precise information. 23

In Article 81 cases this is particularly true when a third party attacks a concerted practice or even an agreement, about which he has no information, since he did not participate in it and possesses no pertinent documents or other evidence.

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A similar problem for the private litigant in EC competition cases is the proof of the loss sustained as a result of the breach of the antitrust rules. In this regard, one may distinguish between proving the extent of the damage itself and proving the causal link between the latter and the anticompetitive practice. An interesting proposal was to follow the example of industrial property or unfair competition law in some legal systems,24 where the loss is usually identified by reference to some criteria that have as one of their objectives to make it easier for the plaintiff to prove his loss while aiming at stripping the wrongdoer of any profit derived from the infringement. Restitutionary damages, which are known in some legal systems, also gained support as a useful remedy especially in cases where large groups of consumers claim damages from a producer. Proving the causal link appears more problematic. It is worth noting that in those few cases where damages actions were brought before national courts the plaintiff very rarely succeeded in proving the causality between damage and unlawful conduct. The most acute problem lies in determining profit losses, i.e. in whether such losses are due to the anticompetitive practise of a competitor or to external conjectural economic factors. An interesting proposal that again gained support was to ease this specific burden of proof. According to this proposal a drop in the plaintiff’s turnover in the relevant market and a simultaneous rise of the defendant’s turnover should be rebuttable evidence that the losses incurred were caused by the anticompetitive practice in question. Another interesting suggestion was for the Commission to provide some guidance to national courts by publishing guidelines on damages that would define for example the core violations of EC antitrust rules and the types of loss incurred by third parties and consumers, and that would also include model-cases dealing with the causality problem. Another consequence of the adversarial system governing civil litigation is that judges can only exceptionally take up issues that the parties have not pleaded themselves. As for the ex officio application of EC competition law by national courts, one may note a certain divergence between continental legal systems, where judges at least in theory are more likely to raise such issues even ex proprio motu, and English law, where such a possibility appears exceptional, notwithstanding the Court of Justice’s case law, which seems to lead to such a duty of national judges under certain conditions.25 Collective claims was another point of debate. The absence of class actions in Europe as opposed to the US was one of the reasons advanced by some participants as to the failure of private enforcement in EC competition law. Consumer claims and parens patriae actions to supplement administrative enforcement were among the choices. One proposal was to introduce a Directive that would grant such rights to certain collective interests, similar to the one 24

This is the case in French and German law. See cases C–312/93, Peterbroeck, Van Campenhout et Cie. SCS v. Belgium, [1995] ECR I–4599 and C–430/93 and C–431/93, Jeroen Van Schijndel and Johannes Nicolaas Cornelis Van Veen v. Stichting Pensioenfonds voor Fysiotherapeuten, [1995] ECR I–4705. 25

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adopted in the area of consumer protection.26 Interestingly enough, new national laws have in the meantime proved revolutionary in introducing such collective claims. Thus, the UK Enterprise Bill that has just been introduced to the House of Commons makes it possible for representative bodies to bring damages actions on behalf of groups of named and identified consumers. Finally, some participants drew attention to the fact that specific attitudes or characteristics of national legal systems might not be in concordance with the stated aim to encourage more private enforcement of EC antitrust rules. To give some examples, in a number of jurisdictions one could detect a certain degree of reticence to the idea of granting more rights to consumers and a certain adversity towards the litigiousness and ‘compensation culture’ of the US. In some judicial systems, especially in those that are seriously overloaded, prospective litigants are encouraged to pursue their case through other non-judicial channels or through administrative independent authorities, which in competition law would mean through national competition authorities and the Commission! This would be a sort of ‘renvoi’ that could in effect neutralise the whole decentralisation initiative (at least as far as national courts are concerned). The majority of the participants were of the opinion that the best choice to achieve these objectives was through secondary Community legislation rather than to leave to the European Courts to gradually construct the law. The Court’s case law has introduced two very important Community law limits to national remedial and procedural rules. These are the principle of equivalence and of effectiveness, meaning that national remedial and procedural rules must not discriminate against Community law rights and must not obstruct the effective exercise of those rights. It was thought, however, that this ‘negative integration’ process could not further substantially the effectiveness of private enforcement, since more ‘positive’ measures were due in order to provide for the suitable incentives. Therefore, a piece of legislation, most likely a Regulation, based on Article 83(2) EC would have to lay down specific rules on remedial relief, so that individuals can enforce their rights in the field of competition, thus promoting a system of undistorted competition in the internal market. Such legislative measures must be sufficiently precise to satisfy the principle of legal certainty and the requirement of uniform application of Community law in the Member States. Nevertheless, it was accepted by certain participants that legislative interference by the Community might be politically sensitive. This was particularly true more for procedural rules than for substantive ones. According to this view complete procedural harmonisation seemed outside the competencies of the Community. Any initiative in this respect would most likely aim at sector-specific measures, i.e. at rules applicable only to the enforcement of EC competition law. But doubts remained. Indeed, it was not obvious whether the sufficient legal basis for the adoption of secondary legislation (of a 26 Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on Injunctions for the Protection of Consumers’ Interests, OJ [1998] L 166/51.

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Regulation or of a Directive) in those matters could surely be Article 83, or whether Articles 95 and 308 EC could also be useful in this regard. A proposal that at first look seemed not very supportive of private antitrust enforcement as such was made by one participant who was of the opinion that private actions could only operate as an adjunct, but no more than an adjunct to public