As Georg Jellinek once noted: “All public norms are here in general interest which is identical with the state interest and not identical with the sum of individual interests, though the general interest often spills over into the individual one.” Competition law is one of such public norms that were adopted in the general interest but spill over into the individual interests. It is, above all, an administrative criminal law aiming at the protection of efficient competition.

PRIVATE ENFORCEMENT OF COMPETITION LAW

The enforcement of competition law stands on three pillars. These are: (i) public enforcement of competition law by specialised administrative enforcement authorities (administrative sanctioning by competition authorities); (ii) criminal prosecution of competition law infringements; and (iii) private enforcement by victims of competition law infringements and/or by bodies organising them (damages claims and injunctions). The particular States may decide to apply all of the pillars in parallel or suppress some and endorse others. In any case, the States should ensure that, with any option decided on, they do not undermine the effective enforcement of competition law in general, which probably means the necessity to give priority to one of the pillars.

The enforcement of competition law in Continental law is primarily built on public enforcement by competition authorities; while the enforcement of competition (antitrust) law in the United States is built on the combination of severe criminal law and patronised private enforcement via damages claims.

Seeing the deterrent effect of the US damages claims and given the notorious Courage judgment of the Court of Justice of the European Union (“CJEU”), the European Commission (“EC”) has embarked on the rather long journey (taking almost a decade from the Green Paper to the directive) to adopt a legislative tool with the aim to ensure that private enforcement of competition law is effective.

In principle, private enforcement of competition law has three offensive “swords” and one defensive “shield”. The shield, used against claims for performance, is the objection of nullity of the agreement due to the breach of competition law. Two swords are rather small court swords (injunction and unjust enrichment); the third sword (damages claim), however, is a rapier.