Beyond Delimitis: Pluralism, Illusions, and Narrow Constructionism in Community Antitrust Litigation

3 Colum. J. Eur. L. 85 (1996)

Clifford Jones. J.D. University of Oklahoma; M.Phil., Ph.D. candidate (law), University of Cambridge.

Eleanor Sharpston. M.A. University of Cambridge; Barrister and University Lecturer in European Law, University of Cambridge.

Jean Monnet, one of the founding fathers of the European Community, referred to the competition (antitrust) principles of the Treaty of Rome as a “fundamental innovation” for Europe. Although the Treaty took effect in 1958, it was not until 1962 that the Council enacted Regulation 17, laying down specific measures for implementing the competition rules which had been provided for in the Treaty itself. Regulation 17 established a “notification” system whereby parties to an arrangement could make application to the Commission for a decision that their conduct or agreements either did not infringe the competition rules, or in the case of Article 85,4 that the conduct or agreements were exempt. This system immediately resulted in a flood of approximately 40,000 notifications. While the initial tide of notifications has since receded, the Commission’s resources since the beginning have been overstretched, with the result that enforcement efforts have been insufficient. The noncompliance problem has been linked to the difficulty of bringing private actions in national courts,’ and Commission staff have conceded the necessity of decentralizing enforcement to national courts in order to obtain compliance.

The Commission has long sought to encourage private damage actions in the national courts in order to assist in enforcement. The Treaty itself contains no express private damage remedies for infringement of the competition rules, and no legislation creating express private rights of action for infringement of the competition rules has been enacted. Nonetheless, the European Court of Justice has repeatedly stated that Article 85(1-2) and Article 86 of the EC Treaty are directly effective and produce rights among individuals which are enforceable in and must be protected by national courts. While limited studies have shownthat a certain degree of private EC competition litigation is taking place in the national courts, the amount has been disappointing. There have been settlements, but no court has yet awarded damages for breach of Articles 85 or 86, and “there is a consensus that such a judgment must one day occur.”

Whether such judgments will occur frequently enough to promote greater levels of compliance is not yet clear. A plaintiff may use the competition rules as a sword or shield in the national courts, but the quasi-federal Community legal order places constraints which derive from Community law on the enforcement of Article 85 by national courts. The “constitutional” constraints on Article 85 enforcement arise from the existence of partial concurrent jurisdiction of national courts and the Commission, the supremacy of Community law, and the exacerbating effect of the Commission’s exclusive jurisdiction under Regulation 17 to “declare inapplicable” the prohibition of Article 85(1) pursuant to Article 85(3).

If Article 85 is to be effectively enforced in national courts, ways must be found to avoid or resolve potential conflicts between national court judgments of infringement and Commission decisions granting exemptions without violating the principle of supremacy of Community law. This article reviews the nature and origin of potential conflicting decisions and suggests an analytical approach, narrow constructionism, which permits most Article 8518 private litigation to go forward without creating intolerable conflicts within the Community’s legal order.