Private Enforcement – Is Article 82 EC special?

After Courage there should be little doubt in our minds that damages can be awarded for breach of the European competition rules in private action cases. Moreover, with the publication of the Commission’s Green Paper on “Damages actions for breach of the EC antitrust rules” (hereafter the Green Paper) the Commission has taken a great step to increase the use of private enforcement. However, as this paper will demonstrate, the suggestions in the Green Paper will not sufficiently accommodate all the relevant issues that arise when promoting private enforcement.

Issues such as the standard of proof and how to establish causation are still left unresolved. Furthermore, although the Green Paper seeks to provide for private actions under both Article 81 and 82 EC, the paper seems in many ways to be more targeted towards Article 81 EC, leaving important aspects for private litigation under Article 82 EC untouched. This paper seeks to bring to light these aspects and highlights certain requirements that need to be fulfilled to obtain effective private enforcement of Article 82 EC, which to a certain degree has been neglected by the Commission in its Green Paper.