Content area
Full Text
I. Introduction
On 20 September 2001, the Court of Justice of the European Union (the Court) in the landmark ruling of Courage v Crehan1 established the right to damages for the breach of EU competition law. This right allows victims of anti-competitive infringements to sue the responsible undertakings for the harm incurred caused by their anti-competitive conduct before Member State courts. After the recognition of this right, the foundation for more private enforcement was laid with the adoption of the Regulation 1/2003 that gave more enforcement powers to national competition authorites (NCAs) and national courts. Following the Ashurst Report2 in 2004, which found that private enforcement in the EU was in a state of ‘total underdevelopment’ and ‘astonishing diversity’, the European Commission increased its efforts to facilitate the bringing of damages actions before national courts and to harmonise the approaches of the EU Member States. The long-awaited Damages Directive3 was finally adopted in November 2014. It needed to be implemented by the Member States by 27 December 2016.
This article analyses the main objective of the right to damages under EU competition law and sheds light on its evolution over the past 15 years since the decision in Courage. It also aims to explore what this main objective entails for the co-existence between public and private enforcement. As an example of the interaction between these two enforcement mechanisms this article looks at the relationship between private enforcement and leniency. In the Pfleiderer4 case the issue arose whether private claimants should be granted access to leniency documents that could facilitate bringing follow-on actions for damages. In the context of competition law, private enforcement refers to a range of actions under private law where the rules are relied upon before a national court.5 In this article private enforcement is confined to the right to damages in cartel infringements.6
The structure of this article is as follows. The second section deals with the objectives of the right to damages and how it interacts with public enforcement. It is argued that the right to damages can fulfil both a compensatory and a deterrent function. To what extent deterrence is advanced through private actions for damages also depends on the interaction between public...