Recent Trends and Developments in Competition Law - Private Enforcement Panel Dave Anderson Berwin Leighton Paisner LLP, Brussels Czech Office for the Protection of Competition Conference Brno, Czech Republic 12 November, 2008

Introduction The Empagran opportunity worldwide Case study – amalgam Policy and procedural issues

Private action case study Awareness – brought the issue to legal team Initial interest… –Binding Commission decision –Commission policy encouraging private actions –Several Member States involved –Threat of suit to obtain quick settlement (key) –Message to suppliers

Private action case study Issues for harmed company –Passing-on –Damages – level –Calculation costs –Discovery – inter partes disclosure/Agency decision –Delay – Agency decision and appeals –Different rules in different jurisdictions Result: no one threatens or sues

Private action case study Key issue for plaintiff company –Settlement quickly/efficiently Requires credible threat of proceedings –Court action – procedural threat –Liability threat – defendant will have to pay and pay more if proceedings succeed against it Incentives are Key –For plaintiffs to threaten/bring suit –For defendants to settle/cooperate

Policy/procedure issues Passing-on defence –Direct purchasers are key players in civil suits – need to keep them strong procedurally – leverage/incentives –White Paper issues shield for defendants against direct purchasers conflict between defendant/indirect proof and presumption –Consider middle way – German example –Threat of suit is vital – shield problem –If settlements are main resolution tool, duplication limited Discovery –Development of inter partes –Agency decisions –Threat of discovery/disclosure

Policy/procedure issues Immunity/leniency programs - creativity –Applicant assists plaintiffs – discovery – US example –Settlement conditions - UK Schools case example –Fine rebates – EC, ECA, Dutch examples Courts –Consolidated cases – EU Don’t demote deterrence –Important compliance tool to promote deterrence –Where threat of suit is credible Incentives to settle – serious threat of civil suit and liability = quicker, efficient, negotiated settlements Awareness – public and private exposure for cartelists

Thank You Dave Anderson Partner, Berwin Leighton Paisner LLP Brussels