Kroes geeft toelichting bij Groenboek over nieuwe EU-regels voor schadevergoedingen na concurrentievervalsing (en)

SPEECH/06/158

Neelie Kroes

Member of the European Commission in charge of Competition Policy

Opening speech at the conference `Private enforcement in EC competition law: the Green Paper on damages actions'

Brussels, 9 March 2006

Ladies and gentlemen,

I am delighted by the huge turnout for this conference. The European Law Academy has done a great job in choosing the right topic, designing the right sort of event and targeting the right audience. I would particularly like to thank them for having organised this conference now. It could not have been more timely.

Private enforcement of EC competition rules in general, and actions for antitrust damages in particular, have sparked quite some debate over the past months. That was the case even before the Commission launched its Green Paper at the end of 2005.

When I proposed including this work in the Commission work programme, I was quickly confronted with the sceptics. With people who thought I was naïve about just how sensitive the issues in this area can be. With accusations that I was set on imposing ideas imported from the other side of the Atlantic, at the expense of longstanding European legal traditions and values. With pessimists who said it would be impossible even to have a rational debate on these issues.

As for importing ideas, well, I've left my cowboy hat at home. But as for the rest, I can only say that I'm glad I stuck to my guns. The Green Paper is a clear indication that as Competition Commissioner, I am ready to consider all possible options to help ensure that the right to a free competitive environment is upheld. To ensure that European businesses really can compete on merit alone. To ensure that European consumers really can benefit from the lower prices and better products that a competitive environment promotes.

Your attendance here confirms that there are other people out there who are ready to think, free of prejudices and free of negative assumptions. The Green Paper has increased awareness of the importance of enforcement of the EC competition rules via private actions. It has increased awareness of a long standing principle of Community law: the diligent work of the Commission and Member States in applying the Treaty is no substitute for the vigilance of individuals in protecting their rights.

Where the Green Paper will lead, it is too early to say. That is why I want this consultation to be genuinely open. That is why I would even be disappointed if it did not create just a little controversy on the way.

A joint responsibility of Member States and the Commission

The Commission is not alone in looking at these issues. In recent years a few Member States have already taken some legislative steps to adapt their national rules to make antitrust damages claims easier. Others are considering similar action. These national initiatives aim amongst other things to help victims to prove antitrust infringements.

Member States are showing they are ready to do something about the current situation. One might then ask whether the European Union needs to do something in addition to those ongoing national activities.

I can assure you that I know my basics - the fundamental principles of subsidiarity and proportionality - and will apply them. I will only recommend European actions if they add demonstrable value and deliver something which Member States alone cannot. We will look carefully at all the possible options and their impact.

We have already taken some steps to involve national courts more in antitrust enforcement. Regulation 1/2003 was instrumental in giving more room for national courts to apply the EC competition rules. It did so by abolishing the Commission exemption monopoly. It empowered national courts to apply Articles 81 and 82 of the Treaty in full.

It is in the context of an increased role for claims brought before national courts that I situate the Green Paper on damages actions. The Green Paper is thus not preaching revolution. But it is recommending that the rights of European business and European citizens should not be protected solely by public enforcement. Anyone harmed by unlawful action should not have to wait for a public body to intervene. They should be able to defend and assert their rights themselves.

Where are the cases?

The powers for national courts are therefore in place. But where are the cases? Unlike competition authorities, courts cannot enforce the competition rules on their own initiative. Cases first need to be brought before them. In contractual disputes, parties often turn to a national court to ask for injunctive relief or a declaration that a contractual clause is null and void.

But injured third parties are far less likely to go to court to ask for damages following an antitrust infringement. We wondered why. Why are there so few cases started in Europe alleging infringements of the competition rules? Sadly, I don't think it's because there are so few infringements around.

And even when a cartel is revealed by a competition authority, why do the victims still not seek any recovery of the losses caused? Why don't victims of abusive behaviour by dominant firms look for redress for the damage arising from such behaviour?

Rights Must Be Enforceable

These questions matter and I believe they require an answer. We all have a right not to be harmed by anticompetitive behaviour. But that right is close to meaningless if it is not accompanied by an effective way to get the infringer to pay damages.

If we are serious about protecting the rights of European citizens then we must be serious about removing the obstacles to damages actions. Every citizen has the right to share the benefits of an economic environment based on effective competition. When those rules are not respected, citizens and businesses should be able to claim damages.

That is what it should mean to live and do business in a European Union based on law and justice.

And of course there is a wider public policy benefit as well. The more European citizens and undertakings stand up for their right to damages, the more the potential perpetrators of illegal actions will think twice. Public enforcement alone is not enough.

Full respect of the competition rules will only be a realistic goal if victims of antitrust infringements know they are able to fight - and win - their case in court. Even without a prior finding of an infringement by a competition authority. Victims need appropriate procedural tools to put them in a position to pursue and prove cases in their own right.

The key messages of the Green Paper

The Green Paper describes the hurdles placed in front of damages actions. It then suggests options which could help bring them down. Many are closely related to national procedural rules.

Further European action will largely depend on the outcome of the public consultation. You will appreciate that I consider it far too premature to even start speculating about it already today.

Still, I would like to underline what I consider to be the central messages of the Green Paper.

First, it's unacceptable that victims of an antitrust infringement decide not to bring a damages claim or lose such a case in court simply because they do not have access to evidence which is in the hands of the defendant. It must be possible to find reasonable ways to bring that evidence to the attention of the court.

Cases that follow public enforcement decisions should be able to rely on those decisions as proof of the fact of the infringement. Of course this will not prove quantum of damages, which is not the area of expertise of competition authorities. But again, private actions should not be dependent on public enforcement. We need a system that allows private actions to stand on their own two feet.

Second, if we want to motivate victims of antitrust infringements to bring damages claims, the potential benefits of such an action must clearly outweigh the possible costs. We can achieve that by reducing the costs involved, for example by spreading them in case of a collective action. Or by reducing the risk by guaranteeing a reasonable claimant that he will not have to bear the bill. Or by increasing the benefits of a damages action.

It is with this last point in mind that the Green Paper considers the option of double damages for horizontal cartels, those most serious antitrust infringements that bring the greatest harm to consumers and industry alike.

I would also like to say a word on what some portray as a tension between a well functioning leniency programme and enhanced private enforcement of the European competition rules.

I am convinced that the two objectives are compatible. Although we must make sure that damages actions are possible whether or not there has been public enforcement, we must also be realistic. Cartels are by their nature hard to detect. Damages actions for victims of a cartel will remain largely theoretical if we don't also have a well devised leniency programme that destabilises and uncovers them. And conversely, the options in the Green Paper show how the leniency programmes of the European competition authorities could actually benefit from some well devised measures to facilitate actions for damages.

And finally, I should respond to those who allege that we are importing alien American concepts into our pristine European system. First, I can say unashamedly that we have learnt some lessons from the US system. I've myself listened carefully to the arguments in the debate which is currently running there. I do not want to cut-and-paste an American-style system here. Europeans are great innovators. I have the feeling that we can find our own way on this too, for example by enhancing the possibility of collective actions by consumer organisations. I am not naïve about the bear-traps we need to avoid. We must avoid excessive levels of litigation. We must avoid speculative lawsuits prompted by ambulance-chasing lawyers. We must avoid an avalanche of unmeritorious claims.

But I don't think that simple fact that these potential risks are out there should stop us taking any action to make things better in Europe. To put our heads in the sand would not protect the rights of European consumers, and it would not help strengthen the European economy.

Conclusions

Ladies and Gentlemen, the issues and options covered by the Green Paper are numerous. I hope that they are stimulating and challenging too - as I said at the start, these are controversial issues and they deserve a full and objective debate. Today's conference provides the opportunity to look beyond the concrete options of the Green Paper; to look at the wider picture. What really matters today is whether there is a consensus on the underlying rationale of the Green Paper. Do you agree with me about the need to empower and encourage victims of antitrust infringements to stand up for their rights?

And if you do, what would be your vision for an ideal private enforcement system? What might work? What would not? Where should the priorities - if any - be? Do you have ideas and proposals we have not even dreamt of yet?

The Commission's Green Paper is an open invitation. Thank you for being here to help us see how we can hold up victim's rights, ensure more enforcement of European competition rules, and so make a truly fair European competition culture a reality.

Thank you for your attention.