A Turning of the Tide: Victim Redress Through Private Antitrust Litigation

We address the differences between the U.S. and EU regimes and how the EU is implementing a new litigation landscape.

INTRODUCTION

Access to the courts is necessary to seek redress for anticompetitive activity, but the costs of litigation can deter victims of anticompetitive conduct from filing suits, particularly where individual claims are small and the procedural tool of collective actions is not available. Additionally, access to evidence is necessary to prove an antitrust violation, but pre-trial disclosure is not available everywhere. Indeed, until collective actions and pre-trial discovery are part of the legal landscape, victims of anticompetitive conduct will not be properly compensated.

In the United States, there is a robust class action procedure, just as there is wide-ranging pre-trial discovery. In the European Union, on the other hand, until recently there has been little of either. This paper explores the differences between the U.S. and EU regimes and the fact that the tide is turning in the European Union with the issuance of new legislation.

Both historically and currently, there appears to be an intersection of the availability of group litigation, in one form or another, and the availability of pre-trial discovery or disclosure. In general, the availability to a party of potential evidence in the possession of its opponent helps that party makes its case in court. This is all the more true in antitrust litigation where, oftentimes, the defendants' wrongdoing is secret. The potential evidence is only relevant if the victim is able to bring a case in the first place—something that, due to the expense of litigation, is only feasible through some sort of group action.

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This article is reprinted with permission and was first published in the July 2016 issue of Competition Policy International.