Volume 27 (2004) / Issue 1
The right of individuals who have suffered loss from infringements of competition rules to bring private damages claims, long a mainstay of antitrust enforcement in the United States, is increasing in viability in the European Union as a result of judgments of the European Court of Justice, new legislation such as Regulation 1/2003, and numerous policy statements by the Commission and the European Parliament. Further remedies legislation may be forthcoming at EU or Member State level. However, some feel that private antitrust cases are undesirable from an economic and policy perspective and should be discouraged even as supplemental enforcement. This article argues that private enforcement has great value as a supplement to public enforcement and as the primary means of compensating victims of infringements whose interests are to be protected by national courts. Academic arguments against private enforcement based on misapplication of economic theory do not justify elimination or discouragement of private actions. The theoretical economic arguments presented in favour of such elimination or discouragement are weak, insufficient, and lack an observable basis in the real world.
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