For decades it seemed clear that EC competition law was enforceable
effectively at the national level, and ECJ case law has continued to bear this
out. In recent years, however, the Commission has been proposing harmonization
of national rules of procedure in competition cases, implying that procedural
autonomy is insufficient on its own to produce an effective enforcement system
in this area. As the authors of this book clearly demonstrate, this suggests a
binary system governing the enforcement of EC Articles 81 and 82: namely, that
led by the Commission through directives and eventual regulations, and that
built on ECJ principles in areas not dealt with by such Community instruments.
This book describes and analyzes not only the specific Commission
recommendations, but also the manner and extent to which these recommendations
are or may be implemented in civil procedure. In particular, the authors
consider changes which may be required if these recommendations are
incorporated into Dutch and English rules of civil procedure. Also addressed
are elements of procedure not mentioned by the Commission but which might
usefully be considered in the context of ECJ principles of effectiveness,
equivalence and effective judicial protection of rights. At the heart of the
study is a detailed analysis of the Commission White Paper on Damages Actions
and the Commission Staff Working Paper, both issued early in 2009.
The in-depth analysis ranges over procedural aspects of such elements as the
following:
• standing;
• disclosure and access to evidence;
• burden of proof;
• fault/no fault;
• costs of damages actions;
• injunctions;
• civil versus administrative enforcement;
• limitations;
• leniency programmes;
• collective actions;
• confidentiality; and
• forms of compensation.
Anticipating as it does a looming impasse in European competition law, this
remarkable book sheds defining light on the real implications of EC
competition law for parties to damages actions, not only in the national
systems studied but for all Member States. For practitioners and jurists it
offers a particularly useful approach to the handling of cases involving
European competition law, and also serves as a guide to current trends and as
a clarification of doctrine.
Preface. Introduction.
1. Analysis of the Principles of the White Paper
on Damages Actions.
2. The Recommendations Made by the Commission in
the White Paper.
3. Private Enforcement of the European Law of
Competition in Dutch Civil Procedure and Civil Law.
4. English Civil
Procedure and the White Paper Recommendations.
5. Conclusion.
Bibliography. Annex: White paper on Damages Actions for Breach of the EC
Antitrust Rules. Green Paper on Damages Actions for Breach of the EC Antitrust
Rules.
