Presentation on theme: "To draw a picture…. To draw a picture… Coordination of Public and Private Enforcement of Competition Law (Work in progress) Sebastian Peyer ESRC Centre."— Presentation transcript:
3 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
4 NCAs face new task because of strengthened private enforcement and decentralisation Decentralised application of EC lawStrengthening of private enforcementmight cause risks of divergence:Different application of EU law between national jurisdictionsInconsistency between EU and national lawDifferent application by different types of enforcersLikely that monitoring will become the primary task of competition authorities
5 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?
6 I will address these questions comparing similar provisions in the UK and Germany Reasons for a comparison of the UK and Germanyold Act Against Restraints of Competition (GWB) v new Competition Actcivil v common lawProvisions to be comparedSection 90 GWB (Germany)Practice Direction Competition Law – Claims relating to the application of Articles 81 and 82 of the Treaty (UK)
7 What do s. 90 GWB and Practice Direction Competition Law provide for? Notification of cases concerning EC and national competition lawRequest for relevant documentsCourts can be asked to transmit relevant documents to NCASubmission of written and oral observationslatter requires permission of the court
8 Notification duty provides useful data… Number of private enforcement cases in Germany:Year Notified cases thereof damagesTotal3 damages cases were so-called “shield cases” were damages were used as defence (Source: Bundeskartellamt)
9 … 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?
10 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/claimantInvestigation after plaintiff’s complaint possible if “initial suspicion” criteria is metCriticised as “fishing expedition”: Claimant complains to BKartA hoping that obtained information will be brought forward in private litigation
11 …and bring forward any type of information to be used by the court Legal opinions – no problemNew facts – problematicCivil 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 themOtherwise court is barred from taking them into considerationHowever, aliquid semper haeret – something always sticks!
12 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 caseThe complaint against this request was unsuccessfulThe 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
13 These problems do not only exist in Germany but in the UK as well Undue procedural helpDistortion of balance of powers/equal footing possibleIntervention 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
14 What I have concluded so far… NCAs have special role as “amicus curiae” due to their extensive investigative powersOFT and BKartA are provided with strong tools to monitor and intervene in private enforcement actionsSubmitting written or oral observations might distort the balance of powers between the parties in civil proceedings
15 … 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?