COPRICOMP · Improving coherence between private law and competition law

Improving coherence between private law and competition law

The project started from the finding that there are two important developments going on which may lead to new community legislation in the short to medium term and that there is little coordination between both: on the one hand there is an on-going process to stimulate private enforcement of European Union (EU) competition law, particularly through damages actions, in which competition lawyers play an important role; on the other hand, there is an on-going process to create a common European private law, in which private lawyers play an important role. The project aimed to raise awareness for this problem, to point out similarities and differences between the two approaches, to evaluate the need for a diverging regime of liability where issues of competition law are concerned and to increase if possible, coherency between the two approaches, especially where the adoption of new legislation is concerned. One of the main achievements of the project is a comparison between the competition law approach to damages actions for infringements of the competition rules and the non-contractual liability rules of the DCFR, developed by private lawyers. The differences between the two approaches range from issues of a rather quantitative nature, such as the duration of the limitation period, to fundamental aspects such as the basic structure of non-contractual liability and the functions of this type of liability (purely compensatory or also aiming at enforcement and deterrence) and the need to compensate dispersed losses. However, as is often the case in law, the differences between the two views are not (always) a matter of black and white. Although starting from opposing positions, the combination of certain rules, the specifications given in the Comments on certain rules of the DCFR or the concessions made by DG Comp after discussion of draft rules sometimes mitigate initial differences. Yet, they cannot simply be neglected. A coherent system of EU law requires that not only more or less the same results are reached in comparable cases, but also that these results reflect the same basic values and are reached on the basis of the same methodological framework. Therefore, before EU legislation is adopted in this field, further research is required as to what are the basic values of an EU system of non-contractual liability, and more consensus is required as to the functions and methodological framework of an EU system of non-contractual liability. The Commission's decision to open a new public consultation on collective redress and on the quantification of loss in cases of liability for infringements of competition law is therefore to be applauded. Furthermore, the project drew attention to the fact that the competition law approach to date focused too much on pecuniary damages for infringements of competition law, which leads to inevitable problems of quantification of loss, while it is in many cases more consistent with the prevailing ideas on non-contractual remedies and with the needs of practice to claim injunctive relief. In the course of the project, it also became apparent that certain characteristics of competition law enforcement may justify that the rules of (non-contractual) liability for infringements of competition law at certain points from the general rules on non-contractual liability. This is in particular the case because otherwise actions for damages could undermine the efficiency and effectiveness of leniency programmes which are of utmost importance for the detection and punishment of cartels. To increase the successful co-existence of leniency programmes and damages actions it has been suggested to improve the procedural position of the leniency applicant in civil proceedings for damages, building on the model of Article 88D Hungarian competition act.

Data: CORDIS, © European Union