Community Competition Law Enforcement Deregulation and Re-Regulation: The Commission, National Authorities and Private Enforcement

4 Colum. J. Eur. L. 579 (1998)

Barry J. Rodger. Lecturer in Law, University of Strathclyde, Glasgow.

Angus MacCulloch. Lecturer in Law, University of Manchester.

This Article seeks to assess recent developments in the enforcement of competition law in the European Community. These developments, at both the Community and the Member State levels, seek generally to enhance the effectiveness of competition law and its deterrent effect.

Two general strands of this enforcement policy shift will be identified. First, there is the shift in enforcement of competition law away from the Commission and Community law toward national authorities and national law. This trend can be subdivided into the issues of administrative decision-making competence and substantive regulatory control. The former involves the recently formulated framework for the decentralization toward national competition authorities (NCAs) of decision-making competencies over Community competition law.’ The principal substantive law reform considered in this Article is the process of soft harmonization of national competition laws with Community law, a process meant to enhance the fabric of EU competition policy. This process is exemplified by the new U.K. Competition Bill.

The second principal strand of the enforcement policy shift is the attempted change in focus from decision making by administrative authorities to private enforcement in the national courts. This trend will also be discussed in two discrete sections. First, the Article will analyze the focus of Community competition policy on private enforcement in the national courts. Then, it will turn to reforms being introduced in the United Kingdom, one purpose of which is to complement the administrative enforcement of national competition rules with the initiative of private litigants.

Accordingly, this Article seeks to highlight the myriad complex and subtle processes in the development of competition law, processes which are interwoven and yet often in conflict with each other. Substantive regulatory reform of national laws has an impact on the required methods of Community law enforcement. The simplification of the legislative and administrative system at the national level interacts with the changes in the appropriate decision- making level for Community law. Both the national and Community systems are separately encouraging a further level of decentralization, away from administrative and regulatory bodies toward methods of private enforcement. This Article suggests that for both issues, and particularly for private enforcement, some lessons may be learned from the historical development of U.S. antitrust law.

The Article will focus on a number of issues: first, Community competition law enforcement difficulties as the reason for many of these recent developments; second, decentralization of Community competition law enforcement to national authorities; third, harmonization of national laws, with particular focus on the reforms to be introduced in 1998 by the U.K. Competition Bill; fourth, decentralization of Community competition law toward private enforcement in the national courts; and fifth, private enforcement of U.K. domestic competition law.