Robert O’Donoghue, Aug 10, 2010
Somewhat fitful attempts at promoting antitrust damages litigation have taken place in the EU in the last several years. These attempts have been stymied to a certain extent by a coalition of disparate, but cumulatively powerful, factors. For one thing, the EU Commission (and also, to an extent, certain national competition authorities) has sought to strike a delicate balance between competing considerations. A paramount consideration has been the jealous guarding of the Commission’s leniency/amnesty policy in cartels-a policy that has been the major source of the very large majority of Commission cartel cases in the last 15 years. Fostering a private antitrust damages litigation culture is seen by some within the Commission as potentially undermining its leniency policy; in particular, if private litigation were to lead to a risk of discovery of corporate leniency statements by plaintiffs. Allied to this is a real fear on the part of many national legal systems of importing the perceived excesses of U.S. style class action lawsuits, coupled with (a somewhat surprising) resistance in many countries to EU harmonization of national civil procedure laws (perhaps reflecting the fact that the EU law has, with very, very limited exceptions, not sought to harmonize national legal procedural laws).
On the other hand, there is also recognition that administrative fines by the Commission do not, directly anyway, benefit EU consumers, and that the po