Injunctions at the Request of Third Parties in EU Competition Law
| Date | 01 March 2010 |
| Author | Caroline Cauffman |
| Published date | 01 March 2010 |
| DOI | 10.1177/1023263X1001700105 |
| Subject Matter | Article |
58 17 MJ 1 (2010)
INJUNCTIONS AT THE REQUEST OF THIRD
PARTIES IN EU COMPETITION LAW
C C*
AB STRAC T
e European Commission recently made signicant e orts to encourage the private
enforcement of EU competition law, by inducing natural and legal persons who suered
damage as a result of competition law infringe ments, to bring actions for monetary
damages before national courts. An important obstacle to the success of this type of
actions is the dic ulty to prove and assess the amount of dam ages. is problem could be
evaded by bringing actions for injunctions instea d of actio ns for dam ages. Surprising ly,
however, actions for injunctions have received les s attention in the debate as to the private
enforcement of competition law. is ar ticle investigates the current possibilities to bring
actions for such injunctions either in the course of administrative procedures or in the
course of civil procedures and suggests proceeding to the introduction of a ha rmonized
action for the cessation of compe tition law infringements.
Keywords: Compet ition law; injunctions; interim measu res; tort law; unfair commercial
practic es
§1. INTRODUCTION
In recent ye ars, the Europea n Commission has made signicant eorts to increase the
private enforcement of EU competition law, by inducing natura l and legal persons w ho
suered loss as a result of c ompetition law infringements, to bring act ions for monetary
damages before n ational courts. ese eorts have led to a certain increase i n damages
actions, especially in member state s that have introduced new legislation facilitating
such damages actions and al lowing collective act ion by groups of victi ms who suered
similar losses . A steep increase of damages actions, however, did not take place.
* Assistant profes sor at the Universities of Maa stricht and Antwer p, Attorney.
Injunctions at t he Request of ird Part ies in EU Competition Law
17 MJ 1 (2010) 59
Some of the main obstacles for d amages actions appear to be the dic ulties of
proving and as sessing the loss and provi ng the causal lin k between the alleged loss and
the a lleged infri ngement of competition law. Moreover, as regards the loss suered by
consumers, there will remain practica l problems, even if collective action by or in the
name of groups of victi ms is possible. I n the case of opt-in actions, the costs of opting
in and organizing the procedure may remain high compared to the dama ges that may
be recovered. In the case of opt-out actions costs and practica l diculties of the opt-in
procedure are avoided, and the total amount of dam ages to be recovered will be higher,
but pract ical problems a nd relatively (too) h igh costs may arise at the time the global
amount of damages needs to be divided amongst the actual victims . Underta kings
on the other ha nd seem less concerned to obtain damages for loss suered by past
competition inf ringements, than to bring an end to current ones and to rega in as soon
as possible their abil ity to compete, to develop their business without bei ng hindered by
anticompetitive conduct of competitors, suppliers and purchasers. A nd indeed, given
the pract ical problems in obtaining compensation by consumers, t he best ‘remedy’ for
loss caused by anticompetitive conduct to consumers might also for them consist in
preventing the fur ther occurrence of it!1
Finally, the attempts of the Commission to (further) harmonize the rules relating
to dama ges for competition law infringements may cause resistance from the member
states t hat are opposed to a ‘Europea n intrusion’ in their liabil ity and procedura l laws
and the creation of a ‘specia l law of antitr ust damages’ sep arated from general liability
law. 2 A lthough cease and desist orders are a lso considered as elements of tor t law in
some legal systems, t heir harmonization or ‘forced’ introduction in competition cases
might encounter less resistance, albeit only because member states are used to the
idea of having to implement them on the ba sis of consumer law direct ives. Moreover,
having a mainly preventive character, they t very well in the Commission’s private
enforcement program w hich aim s, to a signicant extent, at preventing competition
law i nfringements, e ven though this aim has become les s visible in the White Paper,
which focuses on ‘compensation’, than in the Green Paper.3 It is therefore a bit surprising
1 Joint Working Pa rty of t he Bars an d Law Societ ies of the United Kingdom, Comments on the White
paper on Damages Acti ons for Breach of the EC Competition Ru les (July 2008), no.14, electron ically
available at http://ec.europa.eu/compe tition/antitrus t/actionsdamages /white_paper_comm ents/jwpuk
_en.pdf, (la st visited 05.04.2010).
2 See e.g. Ministry of Economic and Business Aairs Denmark, Comments on the White Paper on
Damages Actions for Breach of the EC Ant itrust Rules (29 October 2008) electronically available at
http://ec.europa.eu/competition/antitrust/actionsdamages/white_paper_comments/danem_en.pdf . (last
visited 05.04.2010) See also Bundesministerium für Wirtscha und Technologie, Bundesministerium der
Justiz, Bundesm inisterium für Ernährung, Landwirtscha und Verbraucherschutz, Bundeskar tellamt,
Comments on the White Paper on Damages Actions for Breach of the EC Antitrust Rules, electronic ally
available at http://ec.europa.eu/competition/antitrust/actionsdamages/white_paper_comments/bund _
de.pdf. (last visited 05.04.2010).
3 See Kort mann a nd Swaak , ‘e EC Wh ite Paper on A ntitrust Damages Actions: W hy the Member
States are (Rig ht to be) Less than Enthusi astic’, 30 ECLR 7 (2009) p. 341.
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