In this seminar I want to discuss whether private enforcement is a regulatory tool that works within the antitrust context. You will recall that in the first seminar we discussed the meaning of regulation. I suggested that a narrow meaning would encompass sector-specific regulations (e.g. regulating advertising or regulating telecoms), but that a wider meaning is the ‘intentional use of authority to affect the behavior of a different party’. This would encompass private enforcement. Recall also that what we expect of regulation is: (1) setting the standard; (2) enforcement of the standard; (3) gathering of information. Private enforcement is (mostly, I think) about 2 and 3.
Some necessary background: in 2005 the Commission proposed harmonizing rules for private enforcement of competition law. This has now culminated in a Directive on certain aspects of private enforcement. The relevant documents can be obtained here. The Directive is quite narrow in scope, we can discuss certain aspects if you wish.
A few notes on the readings. You will notice that they are all American: Kelemen is a political scientist who has tried to see how far the notion of ‘adversarial legalism’ fits in the EU generally; Galanter’s is a seminal paper which some of you may well have seen already. Nether look specifically at antitrust law, so the question is whether the ideas they develop may map out onto competition law enforcement, or, conversely, whether a competition law angle might add something to their analyses. Dan Crane is one of the leading antitrust scholars of his generation & he interrogates the value of private enforcement.
Case C-557/12 Kone v ÖBB-Infrastruktur AG, judgment of 5 June 2014
R. D. Kelemen ‘Suing for Europe: Adversarial Legalism and European Governance’ (2006) 39(1) Comparative Political Studies 101
M. Galanter ‘Why the Haves Come Out Ahead‘(1974) 9(1) Law & Society Review
D. Crane ‘Optimizing Private Antitrust Enforcement'(2010) 63 Vanderbilt Law review 675
Frederick Schauer, Richard Zeckhauser ‘The Trouble with Cases‘ (in Kessler, ed Regulation v Litigation, 2010)
Richard A. Posner ‘ Regulation (Agencies) versus Litigation (Courts): An Analytical Framework‘ (in Kessler, ed Regulation v Litigation, 2010)