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Thursday, November 20, 2014

The Second Decentralisation of Competition Law—A Must for an Orderly Administration of Justice in the EU - in Global Competition Litigation Review - November 2014

I published an article in Global Competition Litigation Review, together with Emanuela Matei, which suggests that a second de-centra(GCLR)lisation of the EU competition law is necessary soon, in order to ensure the end of tensions between the private and the public enforcement and, at the end of the day, an efficient and pro-business enforcement of the competition rules overall.

You may find below an abstract of the paper:

”The article pleads in favour of a more resolute departure from the paradigm of maximisation of the public enforcement to the detriment of private forms of enforcement. The superiority of one form over the other should not be accepted as a generally valid statement. It is argued that the actual constellation of possibly interested parties i.e. potentially injured persons and the facts of the case should determine which form of enforcement may be more appropriate to ensure an effective enforcement of the EU competition rules, a sufficiently high level of deterrence, proportionate punitive means and restorative justice. Thus the balance exercise should be left to the compensation for the harm caused by an infringement of competition rules.
The authors argue that the current tension between public and private enforcement of competition rules opposes the very purpose of these rules, therefore it is counter-productive. Hereafter, the article advocates for a comprehensive reform in the field of enforcement of competition law in the European Union, in order to reach a status-quo, where private enforcement will function on an equal footing with public enforcement and it will be able to support the achievement of the main objectives pursued by competition law. This approach
points to a different route than the one that has been chosen by the European Commission and the European Parliament so far, and the present article provides a germane starting point for a wider debate on improving the efficiency of the enforcement for the benefit of the consumer, the development of an internal market free of obstacles and the respect due to fundamental values, such as the right to obtain compensation for the harm caused by an infringement of competition rules.”