School of Law

Access to Compensatory Justice in Antitrust Private Litigation

Planned Submission Date: 01 October 2013

Although the protection of consumer welfare constitutes one of the essential pillars of modern competition laws, consumers have played a secondary role in the enforcement of competition rules within the European Union. Nevertheless, private antitrust litigation may contribute to deter anticompetitive practices while providing judicial redress for the victims of antitrust infringements.

Aware of these benefits, the European Commission has actively promoted private enforcement of competition rules, by conferring to national courts and national competition authorities the power to apply art. 101 and 102 in all its entirety. Despite these efforts, damages actions on behalf of consumers have remained exceptional, being the landscape of private antitrust enforcement one of 'astonishing diversity and total underdevelopment'. The Commission has attributed the failure of private antitrust enforcement to the existence of several procedural hurdles arising from civil laws of Member States. In 2008 the White Paper on Damages Actions was published to overcome these legal obstacles through the harmonization of national procedural rules.

My research seeks to analyze the reasons why consumers are prevented from seeking compensation when they have been harmed as a consequence of antitrust practices. For this purpose, the different paths towards compensatory justice provided by different jurisdictions will be examined in order to identify the obstacles that consumers may encounter to access compensatory justice. These obstacles may involve procedural hurdles posed by the national rules on damages actions, but also the non-strictly legal barriers arising from the legal culture and social environment of Member States. Under this label, legal awareness of competition rules, information asymmetries, availability of qualified professionals and strategic behaviour will be analysed to give a good account of the causes leading to the underdevelopment of antitrust competition law in the EU.