Private enforcement: An overview of EU and national case law

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2011 marked the ten year anniversary of the seminal Courage v. Crehan ruling of the Court of Justice, so it seems appropriate to take stock. In the last ten years there have been a lot of developments, indeed, a true revolution with regard to private antitrust enforcement in Europe. This statement does not imply a positive or negative stance vis-à-vis private actions for damages in the area of competition law but merely describes a reality. The Court of Justice has spoken three times in preliminary rulings. In 2001 and 2006, it set out the general principle and spelled out the constitutive conditions of individual liability for damages, in Courage and Manfredi, respectively, while in 2011, in Pfleiderer, it was called for the first time to make a balancing between the right to damages and the protection of leniency programmes.

In the legislative context, the last ten years have seen important developments. First, at the EU level, the European Commission published a Green and a White Paper in 2005 and 2008, respectively. In early 2011, the Commission also launched a public consultation aimed at achieving a coherent approach towards collective redress in the EU. In 2009, a leaked copy of a Directive proposal was widely circulated in Brussels but the Union has so far not proceeded to legislate in this area. Nevertheless, the recent Commission Work programme confirms that in 2012 there will be a legislative proposal for private enforcement.

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