According to a widely held view the legal nature of unfair competition law is more that of private law whereas antitrust law involves primarily public law enforcement mechanisms. The country reports have shown that, while this is an understandable starting point, it inadequately describes the wide variety of regulatory models in Europe. Regarding unfair competition law there is a rich body of private law experience. In the northern states, however, public law enforcement methods are preferred even in the field of unfair competition law. In many other countries there is a mixture of private law, public law and even criminal law enforcement. In antitrust law a pronounced dominance of administrative law enforcement is to be observed in practice. Nevertheless, the at least theoretical possibility of private enforcement is found everywhere, and this potential requires only to be given life. The question arises of the extent to which the rich body of private law experience in unfair competition can be usefully tapped for the field of antitrust law. Before concrete proposals can be made, it is necessary to explore the reasons, that is the question of why private law enforcement works so well for unfair competition in many European countries but by contrast almost not at all for antitrust law.
Reasons for the different weight of private enforcement in unfair competition and antitrust law
The following reasons are often cited: Cartels are mostly operated covertly, while unfair competition practices have direct and visible effects on the market.