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To draw a picture…. Coordination of Public and Private Enforcement of Competition Law (Work in progress) Sebastian Peyer ESRC Centre for Competition Policy and Norwich Law School University of East Anglia. NCAs face new task because of strengthened private enforcement and decentralisation.

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Coordination of Public and Private Enforcement of Competition Law(Work in progress)Sebastian PeyerESRC Centre for Competition Policyand Norwich Law SchoolUniversity of East Anglia

ncas face new task because of strengthened private enforcement and decentralisation
NCAs face new task because of strengthened private enforcement and decentralisation
  • Decentralised application of EC law
  • Strengthening of private enforcement

might cause risks of divergence:

  • Different application of EU law between national jurisdictions
  • Inconsistency between EU and national law
  • Different application by different types of enforcers

Likely that monitoring will become the primary task of competition authorities

my research asks how ncas coordinate private and public enforcement
My research asks how NCAs coordinate private and public enforcement

Question:

  • How do national competition authorities (NCAs) monitor and, if necessary, intervene in private actions?
  • What are (some of) the implications?
i will address these questions comparing similar provisions in the uk and germany
I will address these questions comparing similar provisions in the UK and Germany

Reasons for a comparison of the UK and Germany

  • old Act Against Restraints of Competition (GWB) v new Competition Act
  • civil v common law

Provisions to be compared

  • Section 90 GWB (Germany)
  • Practice Direction Competition Law – Claims relating to the application of Articles 81 and 82 of the Treaty (UK)
what do s 90 gwb and practice direction competition law provide for
What do s. 90 GWB and Practice Direction Competition Law provide for?
  • Notification of cases concerning EC and national competition law
  • Request for relevant documents

Courts can be asked to transmit relevant documents to NCA

  • Submission of written and oral observations

latter requires permission of the court

notification duty provides useful data
Notification duty provides useful data…

Number of private enforcement cases in Germany:

Year Notified cases thereof damages

2004 215 41

2005 235 34

2006 328 106

2007 279 123

Total 1057 304

3 damages cases were so-called “shield cases” were damages were used as defence (Source: Bundeskartellamt)

but submission of written and oral observations raises a number of questions
… but submission of written and oral observations raises a number of questions!

Questions that have been discussed in Germany but not been addressed in the UK:

  • Can the BKartA commence a parallel investigation to obtain information?
  • Can the BKartA introduce new facts or only issue a legal opinion?
  • How do courts deal with new facts and legal opinions submitted by the BKartA?
the bkarta can commence a parallel investigation to gather information
The BKartA can commence a parallel investigation to gather information…
  • BKartA can commence investigations and request information based on an “initial suspicion” at any time (discretionary decision) from a defendant/claimant
  • Investigation after plaintiff’s complaint possible if “initial suspicion” criteria is met
  • Criticised as “fishing expedition”: Claimant complains to BKartA hoping that obtained information will be brought forward in private litigation
and bring forward any type of information to be used by the court
…and bring forward any type of information to be used by the court
  • Legal opinions – no problem
  • New facts – problematic
  • Civil litigation is determined by the parties – they decide what facts or evidence they want to bring forward (principle of presentation or adversarial principle)
  • In order to use new facts introduced by BKartA to their advantage parties must generally adopt them
  • Otherwise court is barred from taking them into consideration
  • However, aliquid semper haeret – something always sticks!
a german case illustrating some of the abovementioned problems
A German case illustrating some of the abovementioned problems

Kammergericht of 27 March 1981:

  • The BKartA formally requested information from the party of a parallel pending private antitrust case
  • The complaint against this request was unsuccessful
  • The Kammergericht stated that:

- No considerateness on part of the BKartA is required

- Gathering information is no undue procedural help

- The BKartA acts in public interest and does not support a certain party

these problems do not only exist in germany but in the uk as well
These problems do not only exist in Germany but in the UK as well
  • Undue procedural help
  • Distortion of balance of powers/equal footing possible
  • Intervention powers of NCAs are special - normally, “friends of the court” do not have the power to investigate and request information!
  • By-passing UK discovery rules?

UK law provides discovery to obtain information, however, complaint and (written) observation might be a cheaper alternative to gather additional information and avoid costly discovery

what i have concluded so far
What I have concluded so far…
  • NCAs have special role as “amicus curiae” due to their extensive investigative powers
  • OFT and BKartA are provided with strong tools to monitor and intervene in private enforcement actions
  • Submitting written or oral observations might distort the balance of powers between the parties in civil proceedings
and what i am still wondering about
… and what I am still wondering about.
  • Do NCAs act as expert witnesses rather than amicus curiae?
  • What about the overall costs of coherence?
  • If competition authorities are still needed to investigate a case and request information what is the benefit of private enforcement as to cost savings?
  • Are there any safeguards to avoid strategic (mis)use of notifications in the UK (“Settle to my conditions or I will notify the OFT”) or complaints to the BKartA while private claims are pending?