Private Incentive, Optimal Deterrence and Damage Claims for Abuses of Dominant Positions – The Interaction between the Economic Review of the Prohibition of Abuses of Dominant Positions and Private Enforcement

In 2008 the European Commission published a White paper1 and a staff working paper2 on damages actions for breach of the EC antitrust rules.3 The White paper was preceded by a Green Paper4 and a staff working paper5 on damage actions.6 The European Commission seeks to enhance private actions for breaches of European competition law in order to have more private enforcement of competition law. The intended reinforcement of private enforcement carries on the decentralisation of the application of European Competition law, a process that has been initiated by regulation 1/20038 which strengthened the role of the national competition authorities and of the courts of the Member States. With more private enforcement a higher number of competition law cases will be decided by the national courts instead of a competition authority. At the same time, competition authorities will be replaced by private parties when it comes to detecting possible infringements and selecting the cases that are brought to court.