The Research On Private Enforcement Of EU Competition Law

The enforcement system of antitrust law contains two different enforcement means which are public enforcement and private enforcement. The public enforcement refers to the administrative activities including legal investigation and dealing with anti-competitive behaviors, which are conducted by the antitrust authorities. While the private enforcement initiated by private parties (enterprises, consumers, etc.) aims at ascertaining the civil liabilities caused by the antitrust infringements. The United States is the first country to establish the private enforcement system in antitrust law, and is also the country in which the private enforcement develops very well. The principles in America such as antitrust Standing, triple damages and disclosure of evidence are of great reference value to other countries and regions in the world. Under the influence of the successful experience of the United States, a growing number of countries have established the private enforcement system of antitrust Law. In EC enforcement system, the administrative procedure plays a leading role. On the level of EU enforcement system, there is no space for private enforcement and also no institutions on damage systems relative to competition law. Comparative to the United States, the EU private enforcement still appears to be totally undeveloped. This failure is largely due to the great hurdles in EU competition rules and procedural requirements of Member States. The traditional model of administrative regulation in EU antitrust law is the origin of its undeveloped private enforcement. The development of private enforcement is objectively inhibited by the obstacles resulted in private legal proceedings as well as Lawsuit-Weariness Culture in antitrust litigation. In order to achieve effective minimum protection of the victims’right to damages under Articles 81 and 82, EU has issued a series of legal documents such as Regulation No 1/2003, Green Paper, White Paper, Directive of rules governing actions for damages under national law for infringements of the competition law and so on. These documents aim at removing the obstacles of private enforcement and prompting the private enforcement of EU antitrust law.Among the measures to promote the private enforcement of EU antitrust law, the most important one is the antitrust standing that could have the effect of triggering the antitrust litigation. The antitrust standing in EU antitrust law derives from the United States, and the rules developed from American antitrust law including indirect purchasers, the exclusion of the passing-on defense and antitrust damages are of great value to the antitrust standing theory in EU antitrust law. The EU antitrust statue law does not have the provisions on the antitrust standing for indirect purchasers and the passing-on defense. However, European Court of Justice has determined that indirect purchasers could claim for the damages arising from over-charge according to Courage case and other judicial precedents. Therefore, indirect purchasers have been essentially entitled to the plaintiff qualification of antitrust civil litigation. White Paper made clear that any individual who has suffered harm caused by an antitrust infringement must be allowed to claim damages before national courts. This principle also applies to indirect purchasers. With respect to individual consumers, especially for those who have suffered scattered and relatively low-value damage, the Commission considers that there is a clear need for mechanisms allowing aggregation of the individual claims of victims of antitrust infringements. The Commission therefore suggests a combination of two complementary mechanisms (i.e. representative actions and opt-in collective actions) of collective redress to address those issues in the field of antitrust.There are two core problems in antitrust civil litigation:the one is the quantification of the damages, the other is the access to evidence. Generally, the countries which have provided compensation system for antitrust damages have provided the requirements of compensation for damage; usually they would require the special requirements for compensation for antitrust damage. The principal components of compensation for damages are:(1) plaintiff standing; (2) antitrust infringements; (3) antitrust damages; (4) the casual link between the infringements and antitrust damages; and about the fault requirement were provided differently in different Member nations. How to quantify the damage amount is a very important issue in EU antitrust compensation system for damages. The claimant should precisely calculate the exact amount of the harm before litigating an antitrust action. And the court should also confirm the damages amount when they make a decision. In order to calculate the damage amount, the types of harm should be confirmed firstly. The victims must, as a minimum, receive full compensation of the real value of the loss suffered, including the actual loss, loss of profit and also the right to interest. Once the scope of damages is clear, the quantum of these damages should be calculated by the economic analysis method. And the method for establishing a non-infringement scenario, regression analysis, simulation models and cost-based method are the most widely used methods in EU judicial practice. Lastly, if the damages amount could not be quantified or the quantification result is controversial, the judges will exercise its discretion.Due to no provisions on triple damages in EU competition law, in order to help the claimant to win the lawsuit, the Commission therefore suggests improving the evidence system. The Commission considers the disclosure of evidence as an important access to evidence for antitrust civil litigation. And then the Commission suggests that across the EU a minimum level of disclosure of evidence for EC antitrust damages cases should be ensured. With regard to the distribution of burden of proof, the Commission distributes the burden of proof of a breach of articles 81 and 82 to the party who alleges the infringements. While the other party asserts his infringements are consistent with the exemption criteria in Article 81(3), the burden of proof will be shifted to him. With respect to the standard of proof for antitrust civil litigation, there is no specific legislation or guidelines on the EU level, and it is provided by national law under the principles of equivalence and effectiveness.China has established antitrust civil litigation system according to the article.50 of Antitrust Law. However, the private enforcement of antitrust law in China is also as undeveloped as EU. According to the experience of EU, we could learn that we should remove a series of legal obstacles and take the full facilitated measures to prompt the private enforcement of antitrust law. Firstly, we should overcome the idea obstacles of private enforcement. The private enforcement could not only fill in the gaps left by the public enforcement, but also could be helpful to achieve the corrective justice by entitling the victims to full compensation. In addition, we should improve the related system of private enforcement. The scope of the qualification of the claimant should be further specified, and the consumer should be entitled to a right to bring antitrust actions; the evidence rule should be specially arranged to facilitate the antitrust civil litigation for individuals; we also should introduce the institutions of class action and representative action, which could fully prompt the private enforcement.