June 07
2020
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Private Enforcement of European Competition and State Aid Law: Current Challenges and the Way Forward

F. Wollenschläger, W. Wurmnest, T. M.J. Möllers (Eds.)

review by

Małgorzata Cyndecka

This book is a result of an international conference ‘Private Enforcement of European Competition and State Aid law’ that was held in Augsburg on 22 and 23 November 2018. The organisers of the conference, and subsequently editors of the present book, gathered a number of experts who explored both areas of law and contributed to this highly recommended compilation.

Private enforcement of Competition and State aid law is examined in sections I and II, respectively. Importantly, the examination is carried out from the perspective of the EU and the selected Member States. The third section of the book provides a valuable comparative analysis of the private enforcement of competition and State aid law and discusses the way forward.

While the emerging field of private enforcement of EU law is currently on the rise with respect to both Competition and State aid law, the former is undeniably far more advanced due to actions taken at the EU level. Indeed, the adoption and implementation of the Damages Directive 2014/104/EU, which was to be completed by 27 December 2016, was a major step in this regard. Even though the Damages Directive does not cover all areas of private enforcement of competition law, it harmonised many of the most relevant issues. In this respect, the present book is one of the first contributions that analyses the private enforcement of competition law following the transposition of the Damages Directive by the selected Member States.

This analysis is preceded by a thorough clarification of the European concept of private enforcement of competition law as it is understood in the Damages Directive and in older case law based on the EU primary law. Private enforcement is also discussed from the point of view of the Commission and in relation to public enforcement. Finally, the contributors have drawn attention to the most recent developments such as the draft guidelines on the passing-on of cartel overcharges and the cases pending before the Court of Justice that may influence private enforcement.

Regarding the national reports on private enforcement of competition law, they cover both Member States with a relatively long tradition of enforcement actions, that is Germany, the UK and the Netherlands and those where the number of such actions have increased only recently. Those are France and Italy. Given the limited scope of the book, the reports focused on the selected topics and questions such as the entity liable for competition law infringements, the binding effect of decisions of national competition authorities, limitations of actions and the possibility of having recourse to collective actions and pooling the claims. Moreover, all the reports address issues that are either particularly well dealt with by the relevant Member States or are particularly problematic, and thus specific to the Member States at stake. The report concerning the UK includes a discussion on the consequences of Brexit as it was anticipated in mid-November 2019. The available options were then a ‘no-deal Brexit’ or the revised Withdrawal Agreement.

Section II dealing with the private enforcement of State aid law is structured in a similar way. It presents the general EU framework, describes the Commission’s role and its cooperation with the national courts and analyses the concept of private enforcement in relation to public enforcement. In light of the absence of harmonisation, the national implementation of State aid rules is of particular relevance. Thus, the national reports cover the Member States where private enforcement is considerably developed. Those States are France, Germany, Italy, the Netherlands, Spain and the UK. The issues that all national reports address are the enforcement of the standstill obligation under Article 108(3) TFEU and of the Commission’s final decisions, including the available remedies and information deficits, which are potential obstacles to private enforcement, and the Commission’s cooperation with the national courts. In this regard, the issues raised by the cooperation and coordination between the Commission and the national courts are those that are particularly problematic, as the private and public enforcement may overlap. Likewise in section II, the national reports explore issues that are specific to the respective Member States. The report on the UK also mentions the implications of Brexit.

In the third section, which provides a comparative analysis and an outlook, given that the private enforcement of Competition law is far more advanced, the question of potential spillover effects on the area of State aid law is particularly interesting. Thus far, there has been a rather limited impact of developments concerning competition law on State aid law.

In conclusion, the book will certainly be useful to all those who are working with Competition and State aid law, both academics and practitioners. Not only does it provide a detailed analysis of the existing framework, it also attempts to anticipate the future developments and trends concerning the private enforcement of EU law in both areas.

 

Dr Małgorzata Cyndecka is Associate Professor the Faculty of Law at the University of Bergen. She is also Associate Editor of European State Aid Law Quarterly.

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