Competition law enforcement under informational asymmetry
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Competition law enforcement under informational asymmetry Rainer Kulms1
Published online: 15 December 2016 The Author(s) 2016. This article is published with open access at Springerlink.com
Abstract Competition law enforcement, whether by public officials, private parties and consumers or the courts, has to resolve informational and resource asymmetries. Current EU competition law establishes an interface between government enforcement action and private litigation. For the EU Commission, informational asymmetries will be primarily addressed under positive comity agreements with other countries and its leniency programme. For private parties, the success of a stand-alone or follow-on action for damages critically depends on disclosure of documents. The Court of Justice of the European Union attempts to strike a balance between disclosure and the Commission’s preference for confidentiality. Nonetheless, the EU law concept of effectiveness and equivalence of competition law enforcement does not supersede national law rules on procedure or liability of private parties. The Court of Justice applies a negative harmonisation strategy towards national laws. Where appropriate, the paper will assess enforcement practice under U.S. law. Keywords Competition law Public and private enforcement Law of procedure Discovery and comity
This article is based on a presentation given at the 3rd China-EU Legal Forum (CELF) which took place at the Supreme Court of Cassation in Rome on 8./9.9.2015. The 3rd CELF was co-organised by the China Law Society, the Bar Association of Rome, the International Institute for the Unification of Private Law (UNIDROIT), the China-EU School of Law at the China University of Political Science and Law and the College of Comparative Law at the China University of Political Science and Law). & Rainer Kulms [email protected] 1
Max Planck Institute for Comparative and International Private Law, Hamburg, Germany
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1 Competition enforcement policy: the scenario 1.1 The players EU competition policy enforcement has become a multi-player game between Union and Member State officials, private businesses, consumers1 and national courts.2 Regulation (EC) No. 1/2003 replaced Commission-centred enforcement by a system of parallel competences between Member State and EU authorities. A European Competition Network has been set up to address informational and resource asymmetries between national enforcement authorities and the Commission: Cases are allocated and information on ongoing investigations is exchanged.3 The activities within the European Competition Network demonstrate that the current focus on public v. private enforcement of competition law needs to be supplemented by an analysis of intergovernmental arrangements for cross-border coordination of investigation and enforcement activities.4 International cooperation is motivated by a concern for efficient competition law enforcement.5 It is also driven by the quest for judge-proof evidence in the face of information and resource as
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