Published online by Cambridge University Press: 11 August 2011
This paper examines the current European private antitrust enforcement policy. The European Commission's White Paper of 2008, the unofficial Draft Directive of 2009 and the collective redress consultation of 2011 consider a facilitated access to private actions for all types of antitrust violations under articles 101 and 102 TFEU in order to effectively compensate the victims of anticompetitive conduct. Assuming that changes are necessary, the paper argues that it might be worthwhile to limit this policy to damages claims against hardcore violations such as cartels. This suggestion is based on two main arguments. Firstly, the current European private antitrust policy probably underestimates the risks of more damages actions against all types of infringements neglecting insights from the economic analysis of law. Secondly, a revised approach is not only in line with the thinking that underpins the reform but also addresses an actual need as revealed by a comparison of litigation data from different jurisdictions. Refining the European private antitrust policy, it is argued that a focus on hard-core anticompetitive constraints such as price fixing would mitigate the potential for a strategic use of antitrust litigation and reduce the likelihood that the reform of European antitrust damages actions will lead to negative outcomes.
1 RA Posner, Antitrust Law (2nd edn, University of Chicago Press, Chicago, 2001) 266 (emphasis in original). Posner's statement was made with respect to US antitrust law but can certainly be generalized and applied to other jurisdictions, too.
2 European Commission, ‘Green Paper—Damages Actions for Breach of the EC Antitrust Rules’ (Brussels 2005) http://ec.europa.eu/comm/competition/antitrust/actionsdamages/documents.html#greenpaper, accessed 26 May 2011; European Commission, ‘White Paper on Damages Actions for Breach of the EC Antitrust Rules’ (Brussels 2008) http://ec.europa.eu/competition/antitrust/actionsdamages/documents.html#whitepaper, accessed 26 May 2011.
3 European Commission, ‘Commission Staff Working Document, Public Consultation: Towards a Coherent European Approach to Collective Redress’ (Brussels 2011) http://ec.europa.eu/justice/news/consulting_public/0054/ConsultationpaperCollectiveredress4February2011.pdf, accessed 26 May 2011. This consultation is not limited to antitrust actions.
4 Certain measures, such as the binding effect of final decisions of the competition authorities and the European Commission, have already been introduced in some Member States e.g. in Germany and the UK.
5 Those preliminary references lead to the landmark rulings in European Court of Justice, Case C-453/99 Courage Limited v Bernard Crehan  ECR I-06297; European Court of Justice, Case C-295/04 Manfredi v Lloyd Adriatico Assicurazioni SpA  ECR I-6619.
6 The varying conditions for damages claims are described in Denis Waelbroeck, Donald Slater and Gil Even-Shoshan, ‘Study on the Conditions for the Claims of Damages in Case of Infringement of EC Competition Rules, Comparative Report’ (Brussels 2004) http://ec.europa.eu/competition/antitrust/actionsdamages/comparative_report_clean_en.pdf, accessed 26 May 2011.
7 Courage Limited v Bernard Crehan (n 5); Manfredi v Lloyd Adriatico Assicurazioni SpA (n 5).
8 For more facts and the economic background of the case see M Waterson, ‘Beer—The Ties that Bind’ (2010) http://www2.warwick.ac.uk/fac/soc/economics/research/workingpapers/2010/twerp_930.pdf, accessed 27 May 2011.
9 For a description of private antitrust procedure in Italy, the actual problems and facts underpinning the Manfredi decision see Nebbia, P, ‘… So What Happened to Mr Manfredi? The Italien Decision Following the Ruling of the European Court of Justice’ (2007) 28 European Competition Law Review 591–596Google Scholar; Rosso, S, ‘Ways to Promote Workable Private Antitrust Enforcement in Italy’ (2009) 31 World Competition 305–325Google Scholar.
11 There are attempts to create a Community right to damages; AP Komninos, EC Private Antitrust Enforcement: Decentralised Application of EC Competition Law by National Courts (Hart, Oxford and Portland, Oregon, 2008).
12 European Commission, ‘White Paper’ (n 2).
13 See the changes to the UK Competition Act 1998 introduced by the Enterprise Act 2000. Section 47A of the Competition Act 1998 provides for monetary follow-on claims before the Competition Appeal Tribunal. Section 47B provides for consumer claims by specified bodies and section 58 and 58A declare findings of facts of the OFT and findings of an infringement by the OFT or Competition Appeal Tribunal binding in court proceedings. For further details see Rodger, BJ, ‘Private Enforcement and the Enterprise Act: An Exemplary System of Awarding Damages’ (2003) 24 European Competition Law Review 103–113Google Scholar; BJ Rodger, ‘The Competition Act and the Enterprise Act Reforms: Sanctions and Deterrence in UK Competition Law’ in G Dannecker and O Jansen (eds), Competition Law Sanctioning in the European Union: The EU-law Influence on the National Law System of Sanctions in the European Area (Kluwer Law International, The Hague, New York, 2004) 101. Italy recently introduced a class action device. A Martinazzi, ‘Developments in Private Enforcement of Italian Antitrust Law: The Introduction of ‘Class Action’ Legislation' (2010) Competition Policy International 1–7. In Spain, the LEY 15/2007 de Defensa de la Competencia paved the way for a private enforcement of national and EC antitrust rules. Ignacio Gargallo, Sancho, ‘Private Enforcement of EU and National Competition Law’ (2009) 1 InDret 1–35Google Scholar.
14 For a comparative view on indirect purchaser suits see F Cengiz, ‘Antitrust Damages Actions: Lessons from American Indirect Purchasers’ Litigation' (2010) 59 ICLQ 39–63.
15 The prospects of class actions in Europe are considered in Fairgrieve, D and Howells, G, ‘Collective Redress Procedure—European Debates’ (2009) 58 ICLQ 379–409CrossRefGoogle Scholar.
16 European Commission, ‘Commission Staff Working Paper accompanying the White Paper on Damages Actions for Breach of the EC Antitrust Rules’ (Brussels 2008) http://ec.europa.eu/competition/antitrust/actionsdamages/documents.html#link1, accessed 26 May 2011, para 16.
17 Segal and Whinston, in their response to the Green Paper, pointed out that the debate about private antitrust enforcement in Europe is not very well informed by economic theory. Segal, I and Whinston, M, ‘Public vs Private Enforcement of Antitrust Law: A Survey’ (2007) 28 European Competition Law Review 306–315Google Scholar.
18 Already Paracelsus observed that ‘all things are poison and nothing is without poison, only the dose permits something not to be poisonous.’ T von Hohenheim, Sämtliche Werke: 1. Abteilung Medizinsche naturwissenschaftliche und philosophische Schriften (R Oldenburg, München, Berlin, 1928) 138.
19 Lande regards enforcement costs as being part of the harm caused by the violation. Lande, RH, ‘Are Antitrust ‘Treble’ Damages Really Single Damages?' (1993) 54 Ohio State Law Journal 115–174Google Scholar, 122.
20 Posner, RA, ‘The Social Costs of Monopoly and Regulation’ (1975) 83 The Journal of Political Economy 807–827CrossRefGoogle Scholar; Lande, RH, ‘Wealth Transfer as the Original and Primary Concern of Antitrust: The Efficiency Interpretation Challenged’ (1982) 34 Hastings Law Journal 65–152Google Scholar; Posner (n 1). Compared with the wealth transfer from purchasers to sellers, the deadweight loss decreases allocative efficiency according to both consumer and total surplus standard. Interestingly, private antitrust litigation does not address inefficiencies caused by rent-seeking or foregone purchases although it is sometimes argued that the mandatory trebling of US antitrust damages addresses the deadweight loss. Easterbrook, FH, ‘Detrebling Antitrust Damages’ (1985) 28 Journal of Law & Economics 445–468CrossRefGoogle Scholar; Cavanagh, ED, ‘Detrebling Antitrust Damages: An Idea Whose Time Has Come?’ (1987) 61 Tulane Law Review 777–848Google Scholar.
21 Posner, RA, ‘An Economic Approach to Legal Procedure and Judicial Administration’ (1973) 2 Journal of Legal Studies 399–458CrossRefGoogle Scholar; WF Schwartz, Private Enforcement of the Antitrust Laws: An Economic Critique (American Enterprise Institute for Public Policy Research, Washington, 1981) 5; Lande (n 19). With an explanation of different types of enforcement cost see Schwartz, WF and Tullock, G, ‘The Costs of a Legal System’ (1975) 4 Journal of Legal Studies 75–82CrossRefGoogle Scholar; Wils, WP, ‘Should Private Enforcement Be Encouraged in Europe?’ (2003) 26 World Competition 472–488Google Scholar, 479.
22 Becker, GS, ‘Crime and Punishment: An Economic Approach’ (1968) 76 The Journal of Political Economy 169–217CrossRefGoogle Scholar; Schwartz (n 21) 5. Error costs are made while assessing the allegedly anticompetitive conduct and are, thus, part of the enforcement expenses. Block and Sidak claim that his is the only real cost of private enforcement. Michael K Block and Joseph Sidak, G, ‘The Cost of Antitrust Deterrence: Why not Hang a Price Fixer Now and Then?’ (1980) 68 Georgetown Law Journal 1131–1140Google Scholar. Error costs could also be regarded as different from process or enforcement costs. Schwartz and Tullock (n 21).
23 Stigler, GJ, ‘The Optimum Enforcement of Laws’ (1970) 78 Journal of Political Economy 526–536CrossRefGoogle Scholar.
24 Although the typical antitrust case in the US seems to require more resources than the typical civil law case there is no major difference between these two types with respect to the funds needed. KG Elzinga and WC Wood, ‘The Costs of the Legal System in Private Antitrust Enforcement’ in Lawrence J White (ed), Private Antitrust Litigation: New Evidence, New Learning (MIT Press, Cambridge, 1988) 107, 143.
25 KG Elzinga and W Breit, The Antitrust Penalties: A Study in Law and Economics (Yale University Press, New Haven, 1977) 11.
26 R Stürner, ‘Duties of Disclosure and Burden of Proof in the Private Enforcement of European Competition Law’ in J Basedow (ed), Private Enforcement of EC Competition Law (Kluwer Law International, Alphen a. d. Rijn 2007) 163, 169.
27 Becker's theory is based on the economists' analysis of choice and assumes that a person commits an offense if the expected utility to him exceeds the utility he could get by using his time and other resources at other activities. Becker (n 22) 176.
28 ibid. For an adoption of this approach to the area of private antitrust enforcement see Elzinga and Breit (n 25); Schwartz, WF, ‘An Overview of the Economics of Antitrust Enforcement’ (1980) 68 Georgetown Law Journal 1075–1102Google Scholar, 1079; Block and Sidak (n 22) 1131; Posner (n 1). For a critical appraisal of some of Becker's assertions see Michael K Block and Robert Lind, C, ‘Crime and Punishment Reconsidered’ (1975) 4 Journal of Legal Studies 241–248Google Scholar; Polinsky, AM and Shavell, S, ‘The Optimal Tradeoff Between the Probability and Magnitude of Fines’ (1979) 69 American Economic Review 880–891Google Scholar.
29 Landes, WM and Posner, RA, ‘The Private Enforcement of Law’ (1975) 4 Journal of Legal Studies 1–46CrossRefGoogle Scholar.
30 Easterbrook characterised higher penalties as inefficient. ‘Excessive penalties reduce efficiency by inducing firms to back off, to avoid approaching the margin at which the costs of more competition and more cooperation are in equilibrium. They may produce harm, too, if they discourage ‘efficient violations,’ [...]'. Easterbrook (n 20) 447.
31 Salop, SC and White, LJ, ‘Economic Analysis of Private Antitrust Litigation’ (1986) 74 Georgetown Law Journal 1001–1064Google Scholar, 1020.
32 ibid 1030. Given that the defendant wants to avoid being held liable, he is likely to dedicate more resources to litigation offsetting the plaintiff's expenditure. Thus, spending more on enforcement does not, from a plaintiff's point of view, necessarily increases the chances of success.
36 RP McAfee, HM Mialon and SH Mialon, ‘Private Antitrust Litigation: Procompetitive or Anticompetitive’ (2005) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=784805, accessed 26 May 2011, 2.
37 Shavell, S, ‘The Fundamental Divergence Between the Private and the Social Motive to Use the Legal System’ (1997) 26 Journal of Legal Studies 575–612CrossRefGoogle Scholar.
39 Breit, W and Elzinga, KG, ‘Antitrust Enforcement and Economic Efficiency: The Uneasy Case for Treble Damages’ (1974) 17 Journal of Law & Economics 329–356CrossRefGoogle Scholar; Elzinga and Breit (n 25). Breit and Elzinga describe three inefficiencies linked with private antitrust enforcement in the US treble damages system.
40 JM Perloff and DL Rubinfeld, ‘Settlements in Private Antitrust Litigation’ in Lawrence J White (ed), Private Antitrust Litigation: New Evidence, New Learning (MIT Press, Cambridge, 1988) 149, 150.
41 For general effects of uncertainty on compliance with legal standards see RCraswell and Calfee, JE, ‘Deterrence and Uncertain Legal Standards’ (1986) 2 Journal of Law, Economics and Organization 279–314Google Scholar. Uncertainty and the incentives to sue are dealt with by Salop and White (n 31).
42 HL Buxbaum, ‘Private Enforcement of Competition Law in the United States—Of Optimal Deterrence and Social Costs’ in J Basedow (ed), Private Enforcement of EC Competition Law (Kluwer Law International, Alphen on the Rijn, 2007) 41, 48. The degree to which uncertainty influences the decision of a firm depends on whether or not firms are risk averse or risk neutral. In the former case they are likely to avoid any uncertainty. Perloff and Rubinfeld (n 40) 152.
44 Salop and White (n 31); Cavanagh (n 20) 810; McAfee, RP and Vakkur, NV, ‘The Strategic Abuse of Antitrust Laws’ (2004) 1 Journal of Strategic Management Education 1–18Google Scholar; Buxbaum (n 42).
45 In German antitrust litigation a considerable number of private actions stem from contract disputes rather than from ‘pure’ competition law infringements. Sebastian Peyer, ‘Myths and Untold Stories – Private Antitrust Enforcement in Germany’ (Centre for Competition Policy Working Paper No. 10–12 2010) http://ssrn.com/abstract=1672695, accessed 26 May 2011.
47 McAfee, Mialon and Mialon (n 36) 3. The incentives created by the US system are also described by Douglas Ginsburg, H, ‘Comparing Antitrust Enforcement in the United States and Europe’ (2005) 1 Journal of Competition Law and Economics 427–439CrossRefGoogle Scholar.
49 For example, the United States Supreme Court raised the barrier to private actions in Matsushita and Twombly in order to cut back on (excessive) litigation. Supreme Court of the United States, Matsushita Electric Industrial Co v Zenith Radio Corporation 475 US 574 (1986); Supreme Court of the United States, Bell Atlantic Corp v Twombly 550 US 544 (2007).
50 Calkins, S, ‘Summary Judgement, Motions to Dismiss, and Other Examples of Equilibrating Tendencies in the Antitrust System’ (1986) 74 Georgetown Law Journal 1065–1162Google Scholar.
51 The treble damages award is only one prominent feature of US private antitrust enforcement. For some of the related problems and discussion see Polinsky, AM, ‘Detrebling versus Decoupling Antitrust Damages: Lessons from the Theory of Enforcement’ (1986) 74 Georgetown Law Journal 1231–1236Google Scholar; AM Polinsky and Che Yeon-Koo, ‘Decoupling Liabiliy: Optimal Incentives for Care and Litigation’ (Cambridge, Massachusetts 1991); HC Briggs, III, Huryn, KD and McBride, ME, ‘Treble Damages and the Incentive to Sue and Settle’ (1996) 27 RAND Journal of Economics 770–786Google Scholar.
52 William Landes, M, ‘Optimal Sanctions for Antitrust Violations’ (1983) 50 University of Chicago Law Review 652–678CrossRefGoogle Scholar; Hovenkamp, Herbert, ‘Antitrust's Protected Classes’ (1989) 88 Michigan Law Review 1–48CrossRefGoogle Scholar. For purposes of multiple damages awards other than deterrence see Cavanagh (n 20).
54 Schwartz and Tullock stress that it is necessary to generally analyse the cost of a legal regime. Schwartz and Tullock (n 21).
55 Shavell (n 37) 594. He claims that an insurance system is better suited to efficiently distribute compensatory payments.
57 Schwartz (n 21) 3; Wils, WP, ‘The Relationship between Public Antitrust Enforcement and Private Actions for Damages’ (2009) 32 World Competition 3–26Google Scholar.
58 Consequently, many commentators argue in favour of a mixed public and private enforcement system. D Rosenberg and James Sullivan, P, ‘Coordinating Private Class Action and Public Agency Enforcement of Antitrust Law’ (2006) 2 Journal of Competition Law and Economics 159–187Google Scholar; Wils (n 57).
59 Also stressing efficient enforcement Sarra, A and Marra, A, ‘Are Monetary Incentives Enough to Boost Actions for Damages in the European Union? On the Relevance of Incompleteness of Laws and Evidentiary Requirements’ (2008) 31 World Competition 369–388Google Scholar.
60 This is the case in Germany and the UK; Peyer (n 45).
61 European Commission, ‘Commission Staff Working Document—Impact Assessment’. Accompanying Document to the White Paper on Damages Actions for Breach of the EC Antitrust Rules (Brussels 2008) http://ec.europa.eu/comm/competition/antitrust/actionsdamages/documents.html#link1 accessed 26 May 2011 para 60.
62 A Renda and others, ‘Making Antitrust Damages Actions More Effective in the EU: Welfare Impact and Potential Scenarios, Final Report’. Report for the European Commission Contract DG COMP/2006/A3/012 (Brussels, Rome, Rotterdam, 2008) http://ec.europa.eu/competition/antitrust/actionsdamages/documents.html, accessed 26 May 2011, 150.
65 Landes and Posner (n 29).
66 Efficiency is understood in the economic sense of maximising value
69 Some commentators even argue that there is no evidence that the social costs of private antitrust enforcement are justified by the latter's efficiency: Stürner (n 26) 169.
70 The consultation on collective redress has asked stakeholders about their views on strong safeguards against abusive litigation.
74 European Commission, ‘Commission Staff Working Paper’ (n 16) 10. See also questions Q 20 to 24 in European Commission, ‘Public Consultation Collective Redress’ (n 3).
75 That this is not just a mere theoretical concern has been shown in the US, McAfee and Vakkur (n 44). This author observed many contract related antitrust disputes in Germany despite the absence of plaintiff-favouring norms in antitrust proceedings such as damages multipliers or disclosure; Peyer (n 45).
76 Private antitrust enforcement may be generally ill-suited to master a wealth transfer at reasonable cost. DA Crane, ‘Optimizing Private Antitrust Enforcement’ (Michigan 2009) http://ssrn.com/abstract=1474956, accessed 26 May 2011, 8.
78 ‘Varying the offense according to the remedy sought makes the most sense when the conduct appears to have little social value but competitive harm is difficult and costly to prove. [...] When the effects of business practices are ambiguous and judicial fact finding imperfect, harsh penalties can deter procompetitive conduct.’ Herbert Hovenkamp, The Antitrust Enterprise: Principle and Execution (Harvard University Press, Cambridge, 2005) 65.
79 Cavanagh (n 20).
81 The division between agreements that have the object and those that have the effect of impeding competition could be an alternative method of separating hardcore violations from other infringements.
82 OECD, ‘Report on the Nature and Impact of Hard Core Cartels and Sanctions Against Cartels Under National Competition Laws’ (2002) http://www.oecd.org/dataoecd/16/20/2081831.pdf, accessed 26 May 2011.
84 Yeung, K, ‘Privatizing Competition Regulation’ (1998) 18 Oxford Journal of Legal Studies 581–616CrossRefGoogle Scholar, 584.
85 Spengler, JJ, ‘Vertical Integration and Antitrust Policy’ (1950) 58 The Journal of Political Economy 347–352CrossRefGoogle Scholar; Telser, LG, ‘Why Should Manufacturers Want Fair Trade?’ (1960) 3 Journal of Law and Economics 86–105CrossRefGoogle Scholar.
86 For a discussion of price discrimination in the EU law context see Geradin, D and Petit, N, ‘Price discrimination under EC Competition Law: Another Antitrust Doctrine in Search of Limiting Principles’ (2006) 2 Journal of Competition Law and Economics 479–531CrossRefGoogle Scholar.
87 Horizontal partnerships, joint ventures and strategic alliances among rivals may foster competition and contribute to product and service innovation. AI Gavil, WE Kovacic and JB Baker, Antitrust Law in Perspective: Cases, Concepts, and Problems in Competition Policy (2nd edn, Thomson/West, St Paul, 2008) 88. However, they do not belong to the hardcore constraints I have outlined above.
89 For instance, ‘budget meetings’ in the Vitamin cartel, European Commission, Case COMP/E-1/37.512 Vitamins  OJ L6/1.
90 European Commission, Case COMP/F/38.899 Gas Insulated Switchgear  OJ C 75/19.
91 European Commission, Case COMP/38354 Industrial Bags  OJ L 282/41.
92 Of course, plaintiffs may rely on information from competition authorities that have investigated a hard-cartel infringement before (follow-on actions) but the binding effect of those decisions, if existing, only refers to the infringement. The plaintiff still needs to establish the actual damage and causation between damage and antitrust breach.
94 Courage Limited v Bernard Crehan (n 5).
95 This could be an argument against the strengthening of private enforcement of the cartel prohibition. Detection difficulties increase cost as more has to be spent. However, alleviating the burden that is on cartel plaintiffs could reduce the expenditure for detection and increases the compensation or deterrence effect.
96 For an overview see E Elhauge and D Geradin, Global Competition Law and Economics (Hart, Oxford, 2007); Gavil, Kovacic and Baker (n 87).
97 United States v Socony-Vacuum Oil Co 310 US 150 (1940).
98 NCAA v Bd of Regents 468 US 85, 98, 99 (1984).
99 Norther Pacific R Co v United States, 356 US 1, 5 (1958); United States v TOPCO Associates Inc, 405 US 96 (1972).
100 Court of First Instance, Joined cases T-374/94, T-375/94, T-384/94 and T-388/94 European Night Services v Commission  ECR II-3141.
101 Richard Whish, Competition Law (6th edn Oxford University Press, Oxford 2009) 189. Hovenkamp has pointed out the intrinsic difficulties of determining abusive conduct observing that ‘…[w]e have nothing resembling the police officer's radar gun for detecting anticompetitive exclusionary practices.’ Hovenkamp (n 78) 67.
102 European Commission, Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (Brussels, 09 February 2008) C(2009) 864 final, available at http://ec.europa.eu/competition/antitrust/art82/guidance_en.pdf, accessed 26 May 2011.
103 Renda and others (n 62).
105 Peyer (n 45).
106 Barry Rodger, J, ‘Competition Law Litigation in the UK Courts, A Study of All Cases to 2004: Part 1’ (2006) 27 European Competition Law Review 241–248Google Scholar; Rodger, BJ, ‘Competition Law Litigation in the UK Courts, A Study of All Cases to 2004: Part 2’ (2006) 27 European Competition Law Review 279–292Google Scholar; Barry Rodger, J, ‘Competition Law Litigation in the UK Courts, A Study of All Cases to 2004: Part 3’ (2006) 27 European Competition Law Review 341–350Google Scholar; Rodger, BJ, ‘Competition Law Litigation in the UK Courts: A Study of all Cases 2005–2008, Part I’ (2009) 2 Global Competition Litigation Review 93–114Google Scholar; Rodger, BJ, ‘Competition Law Litigation in the UK Courts: A Study of all Cases 2005–2008, Part II’ (2009) 2 Global Competition Litigation Review 136–147Google Scholar.
107 TE Kauper and EA Snyder, ‘Private Antitrust Cases that Follow on Government Cases’ in LJ White (ed), Private Antitrust Litigation: New Evidence, New Learning (MIT Press, Cambridge, 1988) 329; Lawrence J White (ed), Private Antitrust Litigation: New Evidence, New Learning (MIT Press, Cambridge, 1988); RH Lande and Joshua P Davis, ‘Benefits From Private Antitrust Enforcement: An Analysis of Forty Cases, Report of the American Antitrust Institute's Private Enforcement Project’ (2007) http://www.antitrustinstitute.org/files/AAI%20Benefits%20from%20Private%20AT%20Enforcement%20-%20Lande%20Davis%20Report%20-%2012.10.07_121220072254.pdf, accessed 26 May 2011.
108 White (ed) (n 107).
109 Kauper and Snyder (n 107).
110 Perloff and Rubinfeld (n 40).
111 Lande and Davis (n 107); Lande, RH and Davis, JP, ‘Benefits From Private Antitrust Enforcement: An Analysis of Forty Cases’ (2008) 42 USF L Rev 879–918Google Scholar.
112 Renda and others (n 62).
113 Rodger (n 106); Rodger (n 106).
114 Peyer (n 45).
115 Bundeskartellamt, ‘Private Kartellrechtsdurchsetzung – Stand, Probleme, Perspektiven, Diskussionspapier für die Sitzung des Arbeitskreises Kartellrecht am 26. September 2005’ (Bonn 2005) http://www.bundeskartellamt.de/wDeutsch/download/pdf/Diskussionsbeitraege/05_Proftag.pdf, accessed 26 May 2011, 2.
116 Salop, SC and White, LJ, ‘Treble Damages Reform: Implications of the Georgetown Project’ (1986) 55 Antitrust Law Journal 73–94Google Scholar.
117 Kauper, TE and Snyder, EA, ‘An Inquiry into the Efficiency of Private Antitrust Enforcement: Follow-on and Independently Initiated Cases Compared’ (1986) 74 Georgetown Law Journal 1163–1230Google Scholar.
118 Rodger (n 106); Rodger (n 106).
119 The author observed more cases against cartels in Germany which fell outside the observation period. The infamous Vitamins cartel triggered a number of proceedings that were concluded before 2005 and not included in the dataset.
120 This, however, is not supported by Rodger's study on antitrust settlements in the UK where very few cases against cartelists were settled. Barry Rodger, J, ‘Private Enforcement of Competition Law, the Hidden Story: Competition Litigation Settlements in the United Kingdom, 2000–2005’ (2008) 29 European Competition Law Review 96–116Google Scholar.
121 White (ed) (n 107); Rodger (n 106); Renda and others (n 62).
122 Even competition agencies need to set up bonus programmes granting leniency to cartel whistle-blowers in order to break the silence and detect cartels.
127 Plaintiffs also sought declarations of voidness of their agreements with cartel members and/or injunctions.
128 Veljanovski, CG, ‘Cartel Fines in Europe—Law, Practice and Deterrence’ (2007) 30 World Competition 65–86Google Scholar; JM Connor and GC Helmers, ‘Statistics on Modern Private International Cartels, 1990–2005’ (2007) http://ssrn.com/abstract=944039 accessed 26 May 2010; E Combe and C Monnier, ‘Fine Against Hardcore Cartels in Europe: The Myth of Overenforcement’ (Paris 2009) http://ssrn.com/abstract=1431644 accessed 26 May 2011.
129 See Veljanovski (n 128).
130 Gould, JP, ‘The Economics of Legal Conflicts’ (1973) 2 Journal of Legal Studies 279–300CrossRefGoogle Scholar; George L and BKlein, Priest, ‘The Selection of Disputes for Litigation’ (1984) 13 Journal of Legal Studies 1–55Google Scholar; Perloff and Rubinfeld (n 40); Fournier, GM and Zuehlke, TW, ‘Litigation and Settlement: An Empirical Approach’ (1989) 71 The Review of Economics and Statistics 189–195CrossRefGoogle Scholar; Bourjade, S, Rey, P and Seabright, P, ‘Private Antitrust Enforcement in the Presence of Pre-trial Bargaining’ (2009) 57 Journal of Industrial Economics 372–409CrossRefGoogle Scholar. Dealing with the deterrent effect of settlements: Polinsky, AM and Rubinfeld, DL, ‘The Deterrent Effects of Settlements and Trials’ (1988) 8 International Review of Law and Economics 109–116CrossRefGoogle Scholar.
131 Gould (n 130).
132 Priest and Klein (n 130).
134 One argument against a high rate of settlements is the legal uncertainty in cases with new factual or legal constellations. One could think of a transitional period in which courts need to solve contentious issues and clarify the law. This would mean that despite an infringement decision numerous follow-on actions reach the trial stage. Consequently, the number of undetected settlements could be relatively low.
135 For example, the German Concrete cartel and the world-wide Vitamins cartel triggered a number of civil law proceedings.
138 Perloff and Rubinfeld (n 40) 165. Price fixing cases were settled in 81.23 per cent of all proceedings with known outcome. This is still a very high settlement rate but must be read against a generally high settlement rate in the US.
139 European Commission, ‘Public Consultation Collective Redress’ (n 3).