Welcome to the fifteenth issue of Bird & Bird's International Dispute Resolution Newsletter

In this edition we focus on private enforcement actions under EC competition law.

The encouragement of private enforcement has been a key European competition policy objective since the beginning of Commissioner Neelie Kroes's mandate. The development of private enforcement and of antitrust damages claims increases the risk exposure of infringing businesses and creates opportunities for companies affected by infringements.

The European Commission sees vigorous competition within the Community as a vital driver of trade and innovation. To date, EC competition law has been enforced almost exclusively by competition agencies, but it is widely perceived that an increase in the number of private actions would strengthen the deterrent effect of Articles 81 and 82 of the EC Treaty, while also providing direct compensation to the victims of anti-competitive practices.

The Commission has an avowed aim of increasing the proportion of private anti-trust actions and has recently completed a period of public consultation on a range of proposals to effect this change while striking a balance between a healthy 'competition culture' and an unwanted 'litigation culture'. Its is also reviewing a number of potentially radical reforms to make damages actions more attractive to claimants and is considering ways to harmonise procedural rules across Europe. These proposals are set out in more detail in the Commission's Green Paper "Damages actions for breach of the EC Antitrust Rules" dated 19 December 2005.

At Bird & Bird we draw on our expertise in competition law and dispute resolution across our European offices to advise clients on the potential impact of the Commission's proposed strategy.
 

Jane Player
International Dispute Resolution Group

The ECJ reiterates essential principles applicable to private enforcement of EU competition law in its recent Manfredi Judgment
Wilko Van Weert, Brussels

In its judgment of 13 July 2006 in the Vincenzo Manfredi case (“Manfredi Judgment”), the ECJ has taken the opportunity to confirm a number of principles, already generally established in earlier case law, to safeguard the rights of civil parties claiming damages incurred as a result of infringements of EU competition law.

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Brief comments on related issues arising from cross-border private enforcement claims
Orion Berg, Paris

Through publication of the Green Paper (GREEN PAPER, Damages actions for breach of the EC antitrust rules {SEC(2005) 1732}), the Commission intends to make it easier to claim damages for breach of Community competition law. Due to economic trends, violations of competition law, such as abuse of dominant position and the use of restrictive business practices, and therefore the resultant damages, frequently occur across more than one Member State.

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Reform of Section 33 of the Act against Restraints of Competition and the Court ruling of the District Court of Dortmund of 19 May 2004
Christian Schwedler, Frankfurt

In 2005, the German Act against Restraints of Competition (“ARC”) was comprehensively reformed, in particular, the requisites for claims for injunctions or damages by private persons in the case of infringement of competition law. The German reform has followed the European trend of decentralisation in alignment with a reduction of public enforcement activities. As a result, the ARC amendment is intended to foster private claims.

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The violation of a regulatory provision as an act of unfair competition
Antonio Danile, Milan

The market in directory assistance services in Italy is undergoing liberalisation. However, as a result of the behaviours of some established providers, certain new entrants have been obliged to issue private enforcement claims before the Ordinary Courts on the grounds of unfair competition.

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Private enforcement by Bird & Bird in The Netherlands
Eggo Jan Rietema, The Hague

In 2005, KPN, the Dutch incumbent for fixed telephony services and leased lines, was subject to an investigation by the supervisory authority, OPTA, for having offered unlawful discounts to existing and potential business customers. In parallel, KPN made a press release stating that independent investigation had shown that the total amount of illegally offered discounts in the previous two years was approximately €20 million.

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Private enforcement of antitrust rules in Spain: further clarification needed
Ana Berenguer, Madrid

Historically the Spanish Supreme Court has been reluctant to enforce EU and Spanish Antitrust rules in private enforcement actions. However, in June 2000 and March 2001, in the cases of DISA and Petronor, the Supreme Court altered its position to support private enforcement of breaches of the EU competition law (dated 2 June 2000 and 15 March 2001, respectively).

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Important ruling from the Swedish Court of Appeal in private enforcement case
Hanna Larsson, Stockholm

This autumn one of the largest Swedish competition law cases is up for trial. The Swedish Competition Authority alleges that two of the largest construction companies in Sweden have participated in a cartel, fixing the prices of asphalt in a number of public procurements initiated by Swedish municipalities.

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Decision to award damages for a breach of Article 81 of the European Treaty overturned
Jonathan Speed, London

In July 2006, the House of Lords overturned the Court of Appeal's decision in Inntrepreneur Pub Company v Crehan in relation to the applicability of EU Competition Law to UK cases. The case is of interest as it is the first time that a decision to award damages for a breach of Article 81 of the European Treaty has been overturned.

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