Robbing Peter to pay Paul: How effectiveness concerns about EU antitrust arbitration could harm effective enforcement

Click here to read the full article online

Tripartite model. Effective antitrust enforcement models are tripartite: (i) public enforcement aims to deter, (ii) private enforcement aims to compensate, and (iii) leniency programmes aim to obtain information in order to enhance the effectiveness of public deterrence. An effective model must suitably balance these elements, ensuring that one will not hinder the value of the other. Antitrust-specific meaning of effectiveness. As articulated by the European Court of Justice (“ECJ” or “Court”) in its seminal Courage ruling, effectiveness has a double facet in an EU competition law context: when private claimants pursue their own rights under EU law before national courts (as ordinary courts of EU law) they also indirectly contribute to proper functioning of the internal market thereby becoming a sort of “principal ‘guardians’ of the legal integrity of EU law in Europe” through their private actions. As a result, the Court has defined an antitrust-specific meaning of effectiveness by using the term “significant contribution” to refer to the role of damages claims for the efficiency of antitrust enforcement in Europe, with a view to maintaining effective competition.