European Competition Law Annual 2001 Effective Private Enforcement of Ec Antitrust Law European Competition Law Annual

The Workshop revealed first of all a general consciousness that the reformsenvisaged by the Commission would very soon come to reality and that anentirely new system of enforcement would

EUROPEAN COMPETITION LAW ANNUAL 2001:

Effective Private Enforcement of EC Antitrust Law

EUROPEAN COMPETITION LAW ANNUAL:

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TABLE OF CASES

EC Cases

A Leur-Bloem v Inspecteur der Belastingdienst/Ondernemingen Amsterdam 2,

Case C–28/95 [1997] ECR I–4161

ACF Chemiefarma, Case 41/69 [1970] ECR 661.

Ahlström Osakeyhtiö v Commission (Woodpulp), Joined Cases C–89/85,

C–104/85, C–114/85, C–116/85, C–117/85 and C–125/85 to C–129/85 [1993]ECR I–1307

Alcan, Case C–24/95 [1997] ECR I–1591.

Amministrazione delle Finanze dello Stato v Simmenthal, Case 106/77 [1978]

ECR 629

Atlanta, Case C–465/93 [1995] ECR I–3761.

Austria v Commission, Case 99/98, [2001] ECR I–1197.

Automec v Commisssion (Automec II), Joined Cases T–24/90 and 28/90 [1992]

ECR II–2223

Bagnasco e altri v Banca Popolare di Novara e Cassa di Genova e Imperia, Joined

Cases C–215/96 and C–216/96 [1999] ECR I–135

Baustahlgewebe v Commission, Case C–185/95 P [1998] ECR I–8422.

Béguelin, Case 22/71 [1971] ECR 949.

BEMIM v Commission, Case T–114/92 [1995] ECR II–147.

Bergaderm, Case C–352/98 P [2000] ECR I–5291.

Bernd Giloy v Haupftzollamt Frankfurt am Main-Ost, Case C–130/95 [1997]

ECR I–4291

Bloos II, Case 59/77 [1977] ECR 2359.

Bosch, Case 13/61 [1962] ECR 97.

Brasserie de Haecht v Wilkin (de Haecht II), Case 48/72 [1973] ECR 77 Brasserie du Pêcheur and Factortame, Joined Cases C–46/93 and C–48/93 [1996]

ECR I–1029

BRT v SABAM, Case 127/73 [1974] ECR 51.

C Broekmeulen v Huisarts Registratie Commissie, Case 246/80 [1981] ECR 2311 Camera Care, Case 792/79 R [1980] ECR 119.

Casati, Case 203/80 [1981] ECR 2595.

Cascades v Commission, Case C–279/98 P, [2000] ECR I–9757.

Cementhandelaren, Case 8/72 [1972] ECR 977.

Cimenteries CBR a.o v Commission, Joined Cases T–25/95 a.o [2000] ECR

II–508

Commission Decision 1999/60/EC of 28 October 1998, Heating Pipes, OJ L 24/1 [1999].

Commission Decision 2000/400/EC of 10 May 2000, Eurovision, OJ L 151/18

[2000]

Commission Decision 85/206/EEC of 19 December 1984 Relating to a

Proceeding under Article 85 of the EEC Treaty (Aluminium Imports from

Commission Decision of 9 December 1998, Greek ferries, OJ L109/24 [1999].

Courage Ltd v Crehan, Case C–453/99, [2001] ECR I–6293.

Cowan v Trésor public, Case 186/87 [1989] ECR 195.

Criminal Proceedings against J.J Zwartveld et al., Case C–2/88 [1990] ECR

I–3365

De Geus v Bosch, Case 13/61 [1962] ECR 45.

Dekker, Case C–177/88 [1990] ECR I–3941.

Delimitis v Henninger Bräu AG, Case C–234/89 [1991] ECR I–935.

Dillenkofer, Joined Cases C–178–90 and 188–90 [1996] ECR I–4845.

Dirección General de Defensa de la Competencia v Asociación Espanola de Banca Privada (AEB) and Others, Case C–67/91 [1992] ECR I–4785 Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft Berlin, Case

C–54/96 [1997] ECR I–4961

Draehmpaehl v Urania, Case C–180/95 [1997] ECR I–2195.

DSR-Senator Lines v Commission, Case C–364/99 P(R) [1999] ECR I–8733 DSR-Senator Lines v Commission, Case T–191/98 R [1999] ECR II–2533 Dzodzi, Joined Cases C–297/88 and C–197/89 [1990] ECR I–3763.

Eco Swiss China Time Ltd v Benetton International NV, Case C–126/97 [1999]

ECR I–3055

Enichem Anic v Commission, Case T–6/89 [1991] ECR II–1695.

Estée Lauder, Case 37/79 [1980] ECR 2481.

Factortame II, Case C–213/89 [1990] ECR I–2433.

Factortime I, Case C–128/92 [1994] ECR I–1209.

Familiapress, Case C–368/95 [1997] ECR I–3689.

Fantask, Case C–188/95, [1997] ECR I–6783.

Ford, Joined Cases 228–229/82 [1984] ECR 1129.

Foto-Frost v Hauptzollamt Lübeck Ost, Case 314/85 [1987] ECR 4199 France v Commission, Case C–325/91 [1993] ECR I–3283.

Francovich v Italian Republic, Joined Cases C–6/90 and 9/90 [1991] ECR

I–5357

G Vaassen-Göbbels v Management of the Beambtenfonds voor het Mijnbedrijf,

ECJ [1966] ECR 258

Geigy v Commission, Case 52/69 [1972] ECR 787.

Germany v Commission, Case C–240/90 [1992] ECR I–5367.

Greenpeace, Case C–321/95 P [1998] ECR I–1651.

Greenpeace, Case T–585/93 [1995] ECR II–2205.

Grifoni, Case C–308/87 [1994] ECR I–341.

Guérin Automobiles v Commission, Case C–282/95 [1997] ECR I–1503 H.J Banks & Co Ltd v British Coal Corp., Case C–128/92 [1994] ECR I–1212.

Arbejdsgiverforening [1989] ECR 3199.

Hauptzollamt Bremen-Freihafen v Waren-Import-Gesellschaft Krohn & Co.,

Case 74/69 [1970] ECR 451

Erzeugnisse mbH, Case 107/76 [1977] ECR 957.

Höfner and Elser v Macrotron, Case C–41/90 [1991] ECR I–1979.

Hüls v Commission, Case C–199/92 P [1999] ECR I–4287.

Hydrotherm v Compact, Case 170/83 [1985] ECR 3016.

J.J.Wouters (a.o.) v Nederlandse Orde van Advocaten, Case C–309/99,

judg-ment of 19 February 2002

Kerpen & Kerpen, Case 319/82 [1983] ECR 4173.

Kingdom of the Netherlands and Gerard van der Wal v Commission, Joined

Cases C–174/98 P and C–189/98 P, [2002] ECR I–1577

La Cinq, Case T–44/90 [1992] ECR II–1.

Lemmerz-Werke GmbH v High Authority, Joined Cases 53 and 54/63 [1963]

ECR 239

Limburgse Vinyl Maatschappij a.o v Commission, Joined Cases T–305/94,

T–306/94, T–307/94, T–313/94, T–314/94, T–315/94, T–316/94, T–318/94,T–325/94, T–328/94, T–329/94 and T–335/94 [1999] ECR II–945

LTM v Maschinenbau Ulm, Case 56/65 [1966] ECR 235.

Marshall v Southhampton and South-West Area Health Authority (Marshall II),

Case C–271/91 [1993] ECR I–4367

Masterfoods v HB Ice Cream, Case C–344/98 [2000] ECR I–1214.

Mulder and Others v Council and Commission, Joined Cases C–104/89 and

Nordstern AG & Co KG, Case 102/81 [1982] ECR 1095.

Nungesser v Commission, Case 258/78 [1982] ECR 2015.

NV Algemene Transport- en Expeditie Onderneming Van Gend en Loos v Nederlandse Administratie der Belastigungen, Case 26/62 [1963] ECR 1.

Océano Grupo, Joined Cases C–240/98 to C–244/98 [2000] ECR I–4941 Orkem v Commission, Case 374/87 [1989] ECR 3283.

Oscar Bronner GmbH & Co KG v Mediaprint Zeitungs und Zeitschriften Verlag GmbH & Co KG et al., Case C–7/97 [1998] ECR I–7791.

Otto v Postbank, Case C–60/92 [1993] ECR I–5683.

Pasquale Foglia v Mariella Novello, Magliano Al fieri (II), Case 244/80 [1981]

ECR 3045

Peterbroeck, Van Campenhout & Cie SCS v Belgian State, Case C–312/93 [1995]

ECR I–4599

PreussenElektra AG, Case C–379/98, [2001] ECR I–2099.

Rechberger, Case C–140/97 [1999] ECR I–3499.

Remia v Commission, Case 42/84 [1985] ECR 2545.

Rewe v Hauptzollamt, Case C–158/80 [1981] ECR 1805.

Rhône – Poulenc v Commission, Case T–1/89 [1991] ECR II–867.

Sacchi, Case 155/73 [1974] ECR 409.

Sandoz v Commission, Case C–277/87 (Summary publication) [1990] ECR I–45 SCA Holding v Commission, Case T–327/94 [1998] ECR II–1373.

SFI v Belgium, Case C–85/97 [1998] ECR I–7447.

Srl CILFIT & Lani ficio di Gavardo SpA v Ministry of Health (I), Case 283/81

Tournier, Case 395/87 [1989] ECR 2521.

Tré fileurope v Commission, Case T–141/89 [1995] ECR II–856.

VAG France, Case 10/86 [1986] ECR 4071.

Van Schijndel and Van Veen v SPF, Joined Cases C–430/93 and C–431/93 [1995]

ECR I–4705

Van Uden, Case C–391/95 [1998] ECR I–7122.

Walt Wilhelm et al., Case 14/68 [1969] ECR 1.

Zuckerfabrik Süderdithmarschen, Joined Cases C–143/88 and C–92/89 [1991]

ECR I–413

Zwartveld, Case C–2/88 [1990] ECR I–4405.

Cases from EC Member States:

France:

CA de Versailles, 5 Mai 1988, Gazette du Palais 1986, 876.

CA de Lyon, 13 June 1960, Dalloz 1961, 148 (note by Goré).

CA de Lyon, 2 June 1988, Gazette du Palais 1988, 1, juridique, 669, Quotidien

juridique, 2 March 1989, no 26, 15.

CA de Lyon, 2 June 1988, Petites a ffiches 27 June 1988, 6.

CA de Paris, 1st October 1980, Dalloz 1983 IR, 222 (observations by Gavalda and de Leyssac), Revue trimestrielle de droit commercial 1983, 791 (observa-

tions by Alfandari et Jeantin)

CA de Paris, 20 December 1971, Gazette du Palais 1972, 702.

CA de Paris, 23 March 1989, Gazette du Palais 1989, 551, Revue trimestrielle de

droit civil 1989, 537 (observations by J Mestre).

CA de Paris, 29 May 1986, Dalloz 1986, informations rapides, 308.

CA de Paris, 4 May 1961, Jurisclasseur édition générale 1962, II, n12517 (note

by Gendrel and Lafarge)

CA de Paris, 5ème chambre, 12 December 1996, Bulletin rapide de droit des

a ffaires 1997/3, 12, Revue juridique de droit des affaires 1997/5, no 665.

CA de Paris, 5ème chambre, 3 November 1982, Gazette du Palais 1984/1

juridique, 58 (note by Laurent), Dalloz 1985, Informations rapides, 219 (note

by Ch Gavalda an Cl Lucas de Leyssac)

CA Lyon, 19 October 2000, Juris-data no 138 087.

CA Nancy, 27 November 1987, Gazette du Palais 1988.1.251.

CA Paris, 13 May 1993, Europe, July 1993, comm no 300, Journal du droit

international, 1993, 957 (note by L Idot).

CA Paris, 13 October 2000, Juris-data no 126287.

CA Paris, 15 February 2001, Dalloz 2001, 1465.

CA Paris, 18 February 2000, Volkswagen – Dalloz a ffaires 2000, AJ, 195.

CA Paris, 2 December 1999, Dalloz a ffaires, 2000, AJ, 92.

CA Paris, 20 June 2000, Dalloz a ffaires, 2000, 382.

CA Paris, 23 September 1999, SA Fleury Michon v/Sté Aoste Holding –

Juris-data no 024258.

CA Paris, 29 September 1999, SARL Bourgogne Funéraire – Juris-data

no.118625

CA Paris, 30 September 1998, Europe, December 1998, comm no 410.

CA Pau, 11 May 1999, SARL Anais – Juris-data no 041680.

CA Toulouse, 1 March 1999, Cejibe – Juris-data no 040 352.

Cass Civ., 16 April 1985, n8315.527, Jurisclasseur édition générale 1985, IV, Cass Civ., 1ère chambre, 16 July 1959, Bull civ I, no 358, 298.

Cass Civ., 1ère chambre, 26 January 1983, Bull civ I, no 39, 34, Dalloz 1983,

317 (note by A Breton), Revue trimestrielle de droit civil 1983, 749

(observa-tions by F Chabas), 773 (observa(observa-tions by J Patarin)

Cass Civ., 1ère, 24 May 1989, Bull civ., I, no 212.

Cass Civ.1ère, 28 May 1984, Bull I, no 172

Cass Civ.1ère, 30 January 1985, Bull I, no 45.

Cass Civ.1ère, 30 June 1998, Juris-data no 003069.

Cass Com., 1 December 1998, Sté Sodifa – Europe February 1999, comm.

no.81

Cass Com., 1 March 1982, no.8015.834, Bull civ IV, 69.

Cass Com., 10 July 1989, Bodson – Bull civ IV, 145.

Cass Com., 10 July 1989, Bull IV, no 216.

Cass Com., 10 October 2000, SA Cachia Holding – Juris-data n° 006177, Les

Petites A ffiches, 20 April 2001, no 79.

Cass Com., 10 October 2000, Sté Catamini v/Sté Cofotex – Les Petites A ffiches,

20 April 2001, no 79, 5

Cass Com., 12 July 1993, Bonet – Europe, November 1993, no 446.

Cass Com., 13 January 1998, Sté Gift Shop – Europe, December 1998, comm.

no 410

Cass Com., 13 January 1998, Sté L’Oceane Automobiles – Europe, December

1998, comm no 410

Cass Com., 14 December 1999, Mme Sterczinski – Bull IV, no 227.

Cass Com., 14 December 1999, Zilliotto – Dalloz a ffaires, 2000, 79.

Cass Com., 14 February 1995, Bull IV, no 48, Europe, April 1995, comm no.

146

Cass Com., 14 February 1995, Bull IV, no 48.

Cass Com., 14 January 1992 (2 decisions), Bull IV, nos.12 and 13.

Cass Com., 14 January 1992, (2 decisions), Bull IV, nos 12, 13.

Cass Com., 15 July 1992, Bull IV, no 275.

Cass Com., 15 July 1992, Bull IV, no 92.

Cass Com., 15 October 1996, Europe, December 1996, comm no 471 Cass Com., 16 April 1991, no 915.340, Jurisclasseur édition G 1991, IV, 233 Cass Com., 17 July 1990, Dalloz 1991 Jur 471 (note by Reynés), Jurisclasseur

éd G, 1990.II.20436 (note by Virassamy).

Cass Com., 17 November 1998, Pluri-Publi – Bull IV, no 271, Europe, January

1999, comm no 32

Cass Com., 18 February 1992, Bull IV, no 78.

Cass Com., 18 February 1992, no 8712.844, Jurisclasseur édition générale 1992,

IV, 127, no 1161, Revue trimestrielle de droit civil 1992 (note by J Mestre) Cass Com., 2 December 1986, no.8510.547, Bull Civ IV, 197, Revue du droit

de la propriété industrielle 1987, 11, Jurisclasseur édition générale 1987, IV, 50.

Cass Com., 20 January 1987, Bull IV, no 21.

Cass Com., 20 March 1990 (2 decisions), Bull IV, no 85 et 86.

Cass Com., 20 March 1990, Bull IV, no 85 et 86, Dalloz 1991, somm 253 Cass Com., 21 June 1994, Bull IV, no 235.

Cass Com., 22 January 1991, no.8816.188, Revue juridique de droit des a ffaires

1991/3, 202

Cass Com., 23 February 1994, Bull IV, no 74.

Cass Com., 23 March 1999, Volkswagen – Revue trimestrielle de droit

commer-cial, 2000, 255.

Cass Com., 24 March 1991, Quantel, Jurisclasseur éd G, II 21887 (note by

Virassamy)

Cass Com., 24 October 2000, C.S.M v Caulet – Dalloz a ffaires 2000, 429

(observations by A Marmontel), Les Petites A ffiches, 20 April 2001, n° 79,

p 10–11

Cass Com., 25 March 1991, no 89–10.800, Dalloz 1991, 124.

Cass Com., 25 March 1991, nos 8910.800 and 8911.124

Cass Com., 26 January 1999, Soc Automobile J.Y Berthier – Les Petites

a ffiches, 1999, no 58.

Cass Com., 26 January 1999, Sté Automobiles J.Y Berthier – Bull IV, no 29,

Europe, June 1999, comm no 116.

Cass Com., 26 March 1979, no 7711.290, Bull civ IV, no 113, 88, Jurisclasseur

édition G 1979, II, n19249 (note by Jeantet).

Cass Com., 26 May 1992, no 9013.499

Cass Com., 27 April 1981 – Dalloz 1982, p 51.

Cass Com., 27 February 1996, Bull IV, no 63, Europe, May 1996, comm no.

209

Cass Com., 27 February 1996, Europe, April 1996, comm no.158.

Cass Com., 27 June 1989, Jurisclasseur éd G, 1990.II.21530.

Cass Com., 3 January 1996, no 9413.169

Cass Com., 4 January 1994, Bull IV, no 2.

Cass Com., 4 June 1991, Bull IV, no 202.

Cass Com., 4 June 1996, Europe, June 1996, comm no 256.

Cass Com., 6 April 1993, Bull IV, no 137.

Cass Com., 6 April 1999, Daubresse – Europe, January 2000, comm no 25 Cass Com., 6 April 1999, Phildar – Revue trimestrielle de droit commercial,

2000, 257

Cass Com., 6 May 1996, France Telecom – Europe, July 1996, comm no 287 Cass Com., 7 April 1998 (2 decisions), Bull IV, nos 125 et 126.

Cass Com., 7 December 1993, Bull IV, no 450.

Cass Com., 7 February 1995, Bull IV, no 35.

Cass Com., 7 February 1995, no.9311.378, Revue juridique de droit des a ffaires

1995/6, nos 733 et 797

Cass Com., 7 October 1997, Bull IV, no 245.

Cass Com., 9 April 1996, Europe, June 1996, comm no 256.

Cass Com., 9 July 1996, Bull IV, no 204.

Cass Com., 9 Mai 1990, no 8815.625, Dalloz 1990, 509 (note by P Jourdain) Cass Com., 9 May 1990, Bull IV, no.136.

Cass Com., 9 November 1993, Bull IV, no 386.

Cass Com., 9 October 1999, Le Brasseur v/Sté Automobile des garages Sorin –

Revue trimestrielle de droit europeén, 2000.256, obs by S.P.P.

Cass Crim., 14 December 1995, R Lebourgeois – Bull crim., no 384, 1126 Cass Crim., 16 February 1991, Bull crim., no 210.

Cass Crim., 16 May 1991, Bull crim., no 210.

Cass Crim., 16 May 1991, Bull crim., no 211.

Cass Crim., 16 November 1999, Bull crim., no 263.

Cass Crim., 17 March 1992, Bull crim., no 114.

Cass Crim., 2 February 1994, Bull crim., no 48.

Cass Crim., 25 November 1992, Bull crim., no 389.

Cass Crim., 29 January 1997, Bull crim., no 40.

Cass Crim., 31 March 1992, Bull crim., no.138.

Cass Soc., 22 June 2000, Les Petites a ffiches, 20 April 2001, no 79.

Cass Soc., 25 January 1996, Europe, April 1996, no 158.

Cass., Crim., 16 November 1999, Bull crim., no 263.

CE, 12 February 1997, FFSA, Europe, May 1997, comm no 161.

CE, 8 November 1996, FFSA, Europe, December 1996, comm no 468.

Cour de cassation, 1ère chambre civile, 3 December 1985, n8412.295,

Jurisclasseur édition G 1986, IV, 63.

T com de Nanterre, 29 May 1998, Les Petites A ffiches, 1999, no.159 (note by

Fl Le Cohennec)

T Com Paris, 30 May 2000, Dalloz a ffaires, 2000, 349.

T Com., Paris, 10 October 2000, Sté OCP Repartition v/ Sté Laboratoires

Merck – Juris-data no.134562.

T com., Paris, 22 October 1996, Europe, December 1996, comm no 471 TGI, Paris, 31 January 1986, Magne v VAG – Gazette du Palais 1986/2, somm.

445

Germany

BGH 10.11.1987, Neue Juristische Wochenschrift 1988, 2175

BGH 19.6.1986 VersR 1986, 1019, 1020 f.; OLG Nürnberg 10.12.1992 TranspR

1993, 138, 139

BGH 23.10.1979, Neue Juristische Wochenschrift 1980, 1224

BGH 6.3.1980, Neue Juristiche Wochenschrift 1980, 2522

BGH Case KZR 23/96 Depotkosmetik, Wirtschaft und ungssammlung DE-R 206 (BGH 1998)

BGH Case KZR 3/68 Fruchtsäfte, Wirtschaft und ungssammlung BGH 1000 = 1969 Neue Juristische Wochenschrieft 978.

BGH Case KZR 43/71 Eiskonfekt I, Wirtschaft und ungssammlung BGH 1226, 1231 sq (BGH 1972); case KZR 18/84Schaumstoffplatten, Wirtschaft und Wettbewerb/EntscheidungssammlungBGH 2565, 2567 (BGH 1989)

BGH Case KZR 43/71 Eiskonfekt, Wirtschaft und ungssammlung BGH 1226, 1227 = 1972 Neue Juristische Wochenschrieft

Corte d’appello di Milano 12/07/1995, Ceit/Novamont-Ciu ffo Gatto.

Corte d’appello di Milano 15/05/1996, Auchan v Faid.

Corte d’appello di Milano 20/09/1995, Sanguinetti/Ania.

Corte d’appello di Milano 21/3/1993, BB Center Parabella.

Corte d’appello di Milano 29/09/1999, Inaz Paghe v Consiglio Nazionale Ordine

Consulenti del Lavoro.

Corte d’appello di Milano 31/01/1996, Comis/Ente Fiera Milano.

Corte d’appello di Milano, 18/06/1995, Telsystem v Sip.

Corte d’appello di Milano, of 30 May/3 June 1995, Ceit/Novamont-Ciu ffo Gatto

(final judgment of 5 June/12 July 1996)

Corte d’appello di Milano, Order 10/16 January 1996, SCAMM S.r.l./FAI

Komatsu Industries S.p.a.

Corte d’appello di Milano, Order 7/15 July 1992, A.V.I.R S.p.a./ENEL Corte d’appello di Napoli, Order 13/14 July 1993, V.E.A.R./R.S Components

Ltd.

Corte d’appello di Roma, Omnitel/Telecom.

Corte d’appello di Roma, Order 20/1/1993, Gruppo Sicurezza v Aeroporti di

Roma.

Corte d’appello di Roma, Order 20/28 December 1994, S.r.l Giovanni

Grassano/Consorzio obbligatorio degli olii usati.

Corte d’appello di Trieste, Order 12/16 May 1995, Duratorre-Del Rivo/Litoranea Editoriale s.r.l.

Corte di Cassazione, 14 May 2001, Istituto Biochimico Italiano Lorenzini/ Bayer

AG

Corte di Cassazione, Avir/ENEL, Telsystem/Sip and Comis/Ente Fiera di

Milano, Decisions of 15 July 1992, and 5 February 1996.

Pretura di Firenze, 16 September 1980, in G.A.D.I., 1980, 1334.

Pretura di Milano 19 July 1991, in Foro pad., 1992, 166.

Pretura di Milano, 15 February 1973, in G.A.D.I., 1973, 295.

Pretura di Monza, 20 December 1989, in G.A.D.I., 1990, 283.

Pretura di Monza, 26 July 1984, in G.A.D.I., 1985, 215.

Pretura di S Donà del Piave 9 November 1981, ivi , 1981, 1443.

Pretura di Venezia 29 October 1992, Foro italiano, 1994, I, 933.

Tribunale Benevento, 8 April 1999, in Giur mer., 1999, 703.

Tribunale di Firenze, 15 May 1993, 1994, 3215, e 22 marzo 1995, 1995, 3302

Tribunale di Firenze, Order 5 March 1998 in G.A.D.I., 1998, n 3798 e 7 maggio

1998, n 3809

Tribunale di Milano, 4 July 1985, in G.A.D.I., 1985, 1940 e 6 July 1989, 1989,

50

Tribunale di Monza 11 December 1993, 1994, 491; Trib Torino, Lego System

A.S e Lego S.p.a./Lima S.r.l., Orders 20 November 1998 e 22 December 1998, Rivista di diritto industriale, 1999, II, 3.

Tribunale di Roma, 16 March 1994, in G.A.D.I., 1994, 749.

Tribunale di Roma, 16 March 1995, 1995, 3302 e 8 June 1995, 1995, 3322 in

G.A.D.I.

United Kingdom

Apple Corps Ltd v Apple Computer Inc [1992] 1 Common Market Law Review

969 (High Court)

Askin v Borchard [2000] UK CLR 495 (High Court).

British Steel v Customs and Excise Commissioners [1997] 2 All ER 366.

De Cubber v Belgium A/86 (1984).

Findley v United Kingdom A/110 (1997).

Iberian UK v BPB Industries Ltd [1996] 2 Common Market Law Reports 601

March 2001 (High Court) reported in The Times, May 1 2001.

Tinsley v Milligan [1992] Ch 310 (CA) [1993] 3 Weekly Law Reports 126.

Arbitration Cases & Cases from Non-EU Jurisdictions

1994/95 Rep EFTA Ct., 113, Mattel/Lego E-Gr 14, 1996 Common Market Law

Review, 313.

1994/95 Rep EFTA Ct., 15, Restamark E-Gr 7-31, 1995 Common Market Law

Review, 161.

1994/95 Rep EFTA Ct., 59 ff Scottish Salmon Growers, 1995 Common Market

Law Review 851 et seq

1998 Rep EFTA Ct., 38 ff Husbanken I, 1998 Comon Market Law Review, 281

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EU antitrust law.5The sixth edition of the Workshop dealt with the issue of

effective private enforcement of EC antitrust law

This publication includes a transcript of the discussions and a collection ofthe written contributions presented by the participants at the Workshop Thetiming of the event was significative It took place two years after the EuropeanCommission published its groundbreaking White Paper containing its sugges-tions for the reform of EC competition law enforcement6and eight months afterthe Commission’s official proposal for a regulation amending the monumentalRegulation 17.7

1 Ehlermann C.-D and Laudati L.I., eds (1997), The Robert Schuman Centre Annual

on European Competition Law 1996, The Hague, Kluwer Law International.

2 Ehlermann C.-D and Laudati L.I., eds (1998), European Competition Law Annual

1997 — Objectives of Competition Policy, Oxford, Hart Publishing.

3 Ehlermann C.-D and Gosling L., eds (2000), European Competition Law Annual

1998 — Regulating Communications, Oxford, Hart Publishing.

4 Ehlermann C.-D and Everson M., eds (2001), European Competition Law Annual 1999: State Aid Control in the European Union — Selected Problems, Oxford, Hart

7 Commission Proposal for a Council Regulation on the Implementation of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty and Amending Regulations (EEC) No 1017/68, (EEC) No 2988/74, (EEC) No 4056/86 and (EEC) No 3975/87 (“Regulation Implementing Articles 81 and 82 of the Treaty”), COM(2000) 582 final, OJ [2000] C 365E/284.

The 2001 Workshop comes as a sequence to the 2000 one and it focuses on avery important parameter of the whole modernisation debate, private enforce-ment of EC competition law It should be stressed that an effective privateenforcement was stated to be one of the main objectives of the reform Indeed,many pertinent points were raised throughout the 2000 Workshop proceedingsand it was felt that a more detailed analysis of this fundamental issue waswanting The proceedings of the 2001 Workshop were structured in four ses-

sions Panel 1 was devoted on the substantive remedies available for an effective

private enforcement of EC antitrust, whereas Panel 2 examined the procedural

issues involved Panel 3 dealt with a very specific albeit extremely important

aspect, that of private arbitration Finally, Panel 4 debated a different issue of

fundamental interest, the possibility to introduce also a system of criminal

enforcement of EC competition law.

The Workshop revealed first of all a general consciousness that the reformsenvisaged by the Commission would very soon come to reality and that anentirely new system of enforcement would exist, where the Commission wouldstill enjoy its central policy role, but other players would also be present at adecentralised level: national competition authorities and national courts.8Secondly, there was a broad consensus that an effective private enforcement of

EC competition rules at national courts would be a welcome development,bearing in mind the current reduced role of private actions in national courts.However, the best model for Europe would be a mixed system, where public andprivate enforcement will be complementary to each other Thirdly, it wasthought that although the proposed reform and the measures envisaged by theCommission as to the application of EC competition law by national courtswere in the right direction, at the same time they were not sufficient to lead to

an enhanced private enforcement The whole issue of private enforcement had

to be seen in an autonomous way, by introducing powerful incentives at theCommunity and national levels Fourthly, the debate on criminal enforcementshowed that, at least with reference to imprisonment, this was still a sensitiveissue, notwithstanding that public enforcement could be made more effective byadding individual fines to existing corporate ones

Background The decentralised system of competition enforcement that the

Commission advocates in its White Paper and in its Draft Regulation will haveprofound consequences in the way EC competition law is enforced Most com-mentators agree that certainly an impact will be felt in private antitrust enforce-ment, which is expected to grow from a rather meagre to a more complete andmature system

In the White Paper the Commission has in a very powerful way referred tothis perspective by admitting that the current system is hardly encouraging for

8 This holds true for Article 81 EC, since in the new system the Commission’s tion monopoly will be abolished and this provision will be enforced as a whole by the same authority or in the same forum A parallel competence system, at least as far as national courts are concerned, has obviously existed for Article 82 EC.

exemp-such a development In its words, ‘since national competition authorities andcourts have no power to apply Article 81 (3), companies have used this central-ised authorisation system to block private action before national courts andnational competition authorities This has undermined efforts to promotedecentralised application of EC competition rules As a result, the rigorousenforcement of competition law has suffered and efforts to decentralise theimplementation of Community law have been thwarted’.9 Indeed, privateenforcement of EC antitrust law as part of its effective decentralisation is con-sidered by the Commission as one of the main objectives of the proposedreforms, those objectives being firstly the refocusing of the Commission’s activ-ity towards combating the most serious restrictions of competition through theending of the system of notification and authorisation while ensuring an inten-

sified ex post control, secondly the decentralised application of the competition

rules while maintaining consistency throughout the Community, and thirdlythe easing of the administrative constraints on undertakings while providingthem with sufficient legal certainty.10

The advantages of private antitrust enforcement have long been stressed inthe United States, where studies estimate its ratio to public antitrust suitsbetween 10 to 1 and 20 to 1 Invariably, two basic functions are attributed toprivate enforcement of public laws, and particularly of antitrust laws Oneappertains to corrective justice Private actions ensure that those who areharmed by anticompetitive conduct are compensated The other, maybe moreimportant, function of private enforcement is the deterrent effect of suchaction, particularly of civil actions for punitive damages A further advantage

is that in this way the weaknesses of public enforcement, most notably the

‘enforcement gap’ generated by the perceived inability of public enforcement todeal with all attention-worthy cases, are counter-balanced Private enforcement,thus, acquires an instrumental role, which explains the private litigant’s status

in the US as ‘private attorney-general’ However, the US system avails itself of

a whole array of weapons that make private suits very efficient: treble damages,pre-trial discovery, class actions, contingency fees, not to mention a far moreunitary legal and judicial system than the European one The question, there-

fore, that dominated the Workshop proceedings was not whether to have (more) private enforcement of antitrust law in Europe but rather how.

A preliminary question is to de fine private enforcement If private

enforce-ment were to be given a rather broad meaning, i.e., if it meant enforceenforce-ment of

EC antitrust rules through the initiative or intervention of private parties, thenone could argue that such a definition seems to cover cases of private partiesacting also as complainants to competition enforcement agencies In theWorkshop proceedings this was defined as ‘privately triggered public enforce-ment’ Indeed, if the criterion is so general, the conclusion is that already there

is a sort of private enforcement at the central level, i.e at the EC Commission

9 Para 6 of the White Paper.

10 Paras 41, 42, 74 and 75 of the White Paper.

level Complainants in EC competition cases, more as a result of jurisprudencethan of EC legislation, enjoy a rather elaborately defined legal status, and arealso accepted as players in the antitrust enforcement However, this is not how

we conceive private antitrust enforcement

Therefore, we can delimit further that concept, by noting that any privateparties involved in the enforcement of antitrust rules must do so as litigants in

a litigation procedure as against the perceived offenders of those rules.However, even so, such delimitation would not avoid including cases, whereprivate parties participate in an already existing litigation, which is primarilybetween an administrative authority and a defendant In such cases privateparties may join such litigation as interveners, if they can prove a direct andlegitimate interest This could be the case at the Community level, e.g a thirdparty intervention at the Court of First Instance (CFI) level, or at the nationallevel depending on national procedural rules, e.g a third party intervention in

a litigation where the competition law offender appeals against a decision of anational antitrust authority However, such intervention cannot qualify this lit-igation as private antitrust enforcement The characteristic element of the latter

is that it leads to some sort of civil sanction as against the offender: damages,restitution, injunctions, voidness of a contractual relationship, non-invocability

of certain claims based for example on contract or on unfair competition law.Therefore, the mere intervention of a private party in a public enforcement lit-igation, does not turn the latter into a private enforcement one, although suchintervention may be beneficial to the effectiveness of public enforcement (for

example because of pooling of public and private resources in the detection of

a cartel).11

As a consequence, a more appropriate definition of private enforcement

would refer to a litigation, in which private parties advance independent civil

claims or counter-claims based on the EC competition provisions Such a detion would basically cover civil litigation, but it would be broad enough toencompass third party civil claims attached to civil/administrative proceedings,when courts exercise a judicial review of national competition authorities’ deci-sions, if this is permissible under national procedural law Finally, anotherversion of private enforcement is when a national antitrust authority, or,

fini-indeed, the EC Commission intervene as amici curiae in civil proceedings

between private parties The litigation in such cases will retain basically thecharacteristics of private enforcement, but with some additional elements ofadministrative enforcement

These categorisations prove that a clear-cut definition of private enforcement

is not always easy At the same time it becomes clear that an effective system ofprivate enforcement should by no means be thought of as antagonistic to the

11 Even such intervention in public enforcement cases may be relevant for private enforcement, when the latter follows in time and relies on the former, if for example facts established in a public enforcement litigation become binding on the parties of a subse- quent civil litigation, as is the case in English law.

public enforcement model Instead, the two models can ideally work in a plementary manner Indeed, such complementary function was advocated bythe majority of the participants and there are valid reasons to believe that such

com-a mixed model mcom-ay well be the system of tomorrow

The Workshop Proceedings The Annual EC Competition Law and Policy

Workshops hosted by the EUI in Florence provide an ideal forum for the mal debate of critical issues in EU competition policy among policy makers andactors involved in EU competition law implementation The sixth edition of theWorkshop brought together a group of 33 top-level participants, including:high-ranking Commission officials; very senior judges from the EU, EFTA andMember States courts; academics; and outstanding practitioners in the field ofantitrust, Community, and arbitration law The event was co-chaired by Claus-Dieter Ehlermann and Karel van Miert

infor-The proceedings of the Workshop were opened by Commissioner MarioMonti Professor Monti reiterated that a more effective private enforcement of

EC competition rules constituted an important objective of the whole reform

He went on to advocate the complementary functions of public and privateenforcement that would lead to a strengthening of the impact of EC competi-tion rules In this combined enforcement system the victims of anticompetitivepractices, including consumers, must have the opportunity to avail themselves

of effective remedies in the form of decentralised private enforcement, in order

to protect their rights and to obtain compensatory damages for losses

suffered.12That would also bring the implementation of EC antitrust law closer

to the citizen The Commission under the proposed system would retain itscentral position and function, especially in the legislative development of ECcompetition policy and in the implementation of the latter in specific cases thatcan serve as precedents Professor Monti was confident that the abolition of theCommission’s exemption monopoly would further private antitrust enforce-ment in Europe He thought that the Draft Regulation of September 2000 con-tained some important elements intended to facilitate the application of ECcompetition rules by national courts These were the rule on the burden of proof

of Article 2, the co-operation mechanism of Article 15 and the possibility of

the Commission or of national competition authorities to make amicus curiae

submissions before national courts Reference was also made to the Article 234

EC preliminary reference procedure However, in his view, the eventual sion by means of Community legislation for further incentives would raise del-icate questions that might endanger at the current stage the realisation of thealready revolutionary proposals of modernisation

provi-Finally Commissioner Monti welcomed academic discussions about the sibility of a criminal enforcement of EC competition law, but stressed that the

pos-12 It is interesting to note that Professor Monti did not stay only at the compensatory qualities of such damage awards, but also stressed their contribution to the deterrent

e ffect of the competition rules This reference echoes some elements of the ‘private ney-general’ function of the private litigant in US antitrust.

attor-introduction of criminal sanctions might risk creating some problems, ably of institutional-political nature, and that in any case this was not the onlyway to attain efficiency of enforcement, at least at this stage.

presum-Panels 1 and 2 during the first day of the Workshop were entirely devoted to

the various substantive and procedural law parameters of EC private antitrust

enforcement The contributions for each of these two panels are preceded by asynthesis report written from a Community law point of view A preliminarypoint to be made is that it quickly emerged out of the written contributions andthe discussion that the two issues were in effect inseparable In addition, there

is often not a clear-cut distinction between substance and procedure among the

different legal systems in Europe Indeed, most participants in their tions and interventions felt free to address both the substantive and the proced-ural aspects of the application of EC competition rules by national courts.The majority of participants thought that the modernisation of EC compe-tition law enforcement and the direct effect of Article 81(3) will have a certainimpact on civil litigation before national courts at least in theory In particular,

contribu-as far contribu-as time is concerned, the abolition of Commission’s exemption oly would on the balance be positive for national litigation, since the courtswould be able ‘to address the full range of competition law for the first time’ inthe words of one participant In addition, it is noteworthy that the ‘old’ ques-tion regarding the judges’ suitability to deal with the highly complex economicissues that the application of Article 81(3) entails was answered in the positive

monop-by the overwhelming majority of participants

However, a substantial number of participants thought that the tion project and the forthcoming direct effect of Article 81(3) EC, though in theright direction, would not nevertheless contribute significantly towards thedevelopment of a system of effective private enforcement The argument wasthat Article 81(3) and the possibility of an exemption rarely come into play incases, where there may be a substantial liability of a person that has committed

modernisa-a serious violmodernisa-ation of the competition rules modernisa-and hmodernisa-as inflicted harm uponanother This is more likely to happen either with very serious anticompetitivepractices that are not usually notified and would not in any case benefit fromthe third paragraph of Article 81 or with abuses of dominant position underArticle 82, whose enforcement is not affected by the proposed reforms andwhich has long been recognised as directly effective With the possible exception

of some minor cases, where civil liability might have arisen, but the likelihood

of a Commission exemption may have blocked the civil litigation, not much hasreally changed as to the possibilities of more private enforcement

Most participants thought that if a real objective of the reform was toincrease private enforcement of EC antitrust, then many follow-up problemsremained that had not been sufficiently addressed by the Commission neither

in the White Paper nor in the Draft Regulation These problems had to do withthe fact that the framework of civil litigation in the EU (substantive and pro-cedural) was up to a great extent governed by national and not Community law.Therefore, most would welcome more harmonisation measures

In order to proceed to the specifics of private antitrust enforcement one hasfirst to examine the modalities of the application of EC competition law bynational courts The first instance is as a shield This might be so in contractual

liability cases, where the plaintiff claims specific performance of the contract oralleges its breach by the defendant and claims damages, while the latter raisesthe nullity of the contract or of parts thereof.13Another instance is unfair com-petition actions against ‘free riders’, when EC competition law is pleaded indefence Most participants thought that this kind of civil litigation (‘shield-litigation’) can hardly account for private enforcement of competition law.Cases where competition law, in particular Article 81(2), has been raised as ashield by defendants have been numerous before national courts, but their con-tribution towards the development of a more effective system of privateenforcement was considered minimal The authors of the synthesis report onthe procedural aspects stressed that in such cases the competition rules are oftennot invoked by the victim of a restraint but by participants therein, they arepleaded not because and whenever competition is endangered but only inciden-tally, they are often applied when competition has already been harmed, andtheir compensatory and deterrent effect is minimal

On the other hand, from a private enforcement perspective, more significant

are the cases, where competition law is pleaded as a sword Usually one party

puts forward a claim for injunction, damages, restitution or interim measuresthat intends to compensate and/or to put an end to the harm caused by theinfringement of the EC competition rules.14While injunctions (usually of aninterlocutory nature) are often granted by Member State courts, damagesclaims are very rare in Europe as opposed to the US Damages in particular arethought of as the most important limb of private antitrust enforcement Most

of the participants deplored the scarcity of such cases and thought that it is cisely this kind of private enforcement that should be encouraged

pre-A central issue that emerged in the synthesis report on substantive remedieswas whether the legal basis for the remedies in private antitrust enforcementwere to be found in national or in Community law While nullity of anti-competitive agreements was prescribed in the Treaty itself (Article 81 (2) EC),15the same was not true for damages and other remedies The author of theCommunity report on substantive remedies, Former Advocate General Waltervan Gerven, argued that these remedies were in principle prescribed by

13 In reality the situation will be a bit more complicated, since the plainti ff will most likely counter-plead the compensating qualities of the agreement that make it lawful under Article 81(3) It should be noted that according to Article 2 of the Draft Regulation

in such a case the plainti ff will still bear the burden to prove these prevailing qualities.

14 Another possibility is to file an action for the declaration of the nullity of

anticom-petitive agreement (action en nullité) This type of actions is rare in practice.

15 Contractual relations that prepare, accompany or implement concerted practices

or abuses of dominant position, notwithstanding the Treaty’s silence, will also be void National laws contain speci fic rules that consider null contracts that are illicit or against public policy.

Community law itself, while national laws defined the more detailed proceduralrules that give effect to these remedies In particular , the right to damages ofthe victim of an anticompetitive practice had its basis in Community law itself,

exactly as was the case with the principle of state liability under the Francovich

case law.16This view was shared by other participants as well, though somethought that a Community right to damages would not add much, since it wasclear that national laws provided for sufficiently clear legal bases upon whichone could bring forward damages claims Others, however, stressed the sym-bolic importance of the recognition of such a right, which would eliminate astate of ‘mass uncertainty’ of lawyers and clients

Indeed, the ECJ in its judgment in Courage that was rendered a few months

after the Workshop did in fact answer this question of principle in the positive.17

In a ruling that indirectly gives support to the Commission’s modernisationplans and may prove a significant boost for private antitrust enforcement inEurope it stressed the Community law basis of the right to damages In a

Francovich-like language the Court underlined the task of national courts to

ensure the full effect of Community rules and the protection of individuals’rights conferred by those rules The full effectiveness of the Treaty competitionrules and, in particular the practical effect of the prohibition laid down inArticle 81(1) would be put at risk, if individuals could not claim damages forlosses caused by the infringement of those rules.18

Courage is now a reality and it seems that it goes further than certain national

laws in encouraging in principle damages claims even between co-contractingparties.19 Leaving this discussion on the Community or national legal basisaside, the conclusion was that damages represented the strongest remedy inantitrust civil litigation, but unfortunately the cases where courts had renderedsuch awards were extremely rare Civil suits for damages did not proliferate even

in the most obvious cases, where the Commission had already unearthed andseverely punished a repugnant cartel or other anticompetitive behaviour thathad caused serious financial damages to competitors, customers and consu-mers.20According to a participant the psychological factor was the most impor-

16 Cases C-6/90 and C-9/90, Andrea Francovich et al v Italy, [1991] ECR I–5357.

17 Case C–453/99, Courage Ltd v Bernard Crehan, judgment of 20 September 2001,

[2001] ECR I–6297.

18 Courage, para 26 According to the Court, ‘indeed, the existence of such a right

strengthens the working of the Community competition rules and discourages agreements

or practices, which are frequently covert, which are liable to restrict or distort competition From that point of view, actions for damages before the national courts can make a signi fi- cant contribution to the maintenance of e ffective competition in the Community’ (para 34).

19 The situation until Courage was that at least German and English law did not allow

damages claims of co-contractors based on Article 81 EC Under the current law national

legislation may pose an obstacle to such a Community law right only when the party

advancing this claim bears a signi ficant responsibility for the distortion of competition.

20 In France it seems that there are cases where a decision of the Conseil de la rence or of the Commission was followed by settlements on civil liabilities between the

concur-parties involved.

tant In his words ‘the single most useful event might be for some boldCommunity plaintiff to win a significant damages judgment which really

“bangs the bell”.’

Most participants thought that the sole compensatory character of damageswould not constitute a sufficient incentive for the victim of the breach to bring

a private action and a sufficient deterrent for the tortfeasor not to engage inanticompetitive practices For a considerable number of participants the USmodel of ‘private attorney-general’ and the possibility to recover trebledamages was the only alternative for Europe The problem with punitivedamages is that they are viewed rather unfavourably by the European legalsystems, particularly by those of continental countries On the other hand anAmerican participant thought that while treble damages are, indeed, a power-ful incentive for private enforcement in US law, their non-availability inEuropean law might have been overstated by European lawyers According tohim European legal systems provided for a very useful alternative that US lawlacked: prejudgment interest Prejudgment interest could in many cases reachthe level of trebled damages Another participant drew attention to the fact thatthere is already Community legislation21that has introduced the element ofpunitive damages and that this was also feasible for the field of EC competitionlaw Indeed, the discussion draft of a Regulation drawn up by Former AdvocateGeneral van Gerven and annexed to his synthesis report on substantive reme-dies contains a rule on exemplary damages, according to which damages recov-erable could exceed the payable compensation to the harmed person, though fornot more than half of it

The reasons for the scarcity of civil antitrust suits in Europe were extensivelydebated throughout the Workshop proceedings These were of legal-institutional and psychological-sociological nature As far as substantive reme-dies were concerned, all participants confirmed that in principle national lawsdid not pose any problem to the development of a stronger private enforcementsystem National causes of action were more or less satisfactory.22Proceduralrules were more likely to cause some problems, which were not, however, insur-mountable Most of the participants contrasted the absence in the Europeanlegal systems of legal incentives for an effective private enforcement of the ECantitrust rules to the situation in the US, where a whole panoply of trebledamages, contingency fees, class actions and pre-trial discovery procedurescould be relied upon by prospective private litigants Others thought that thesespecific incentives apart, the whole institutional system of antitrust enforce-ment in Europe was fundamentally different because of the overwhelminglycentral role of public enforcement In the words of one participant the existing

21 Reference was made to the late payments Directive (Dir 2000/35/EC of 29 June

2000 on Combating Late Payment in Commercial Transactions, OJ [2000] L 200/35),

which establishes a legal interest rate of a punitive character.

22 Notwithstanding occasional deficiencies like for example the pre-Courage tive rule on co-contractors, whether an obligation to contract (Kontrahierungszwang)

restric-can be a remedy in Article 81 cases, etc.

administrative enforcement model in Europe ‘is proving to be very effective and

to some extent alternative to judicial enforcement; and while the protection ofprivate complainants is not the objective of the administrative intervention, theoutcome of an antitrust case conducted by the [c]ompetition [a]uthority can belargely equivalent to a judge ruling’ To these one should add the fact thatadministrative authorities and certainly the Commission have extensive investi-gatory powers and the procedure before them entails no costs for a complai-nant

One of the most important problems that was many times mentioned is thatcivil litigation follows the adversarial system, unlike administrative authoritiesthat follow the investigatory one This means that civil courts rely on the infor-mation provided by the parties Competition law presupposes an extensivedegree of market information This is particularly true of Article 81(3) but also

of Article 82 In this respect the Workshop participants considered the problem

of proof as the most serious obstacle towards an effective private enforcement.23One solution would be to have the Commission fill this gap through the co-operation mechanism of Article 15 of the Draft Regulation, whereby nationalcourts request from the former information in its possession or its opinion.However, many participants thought that such an option would in essenceresult in overburdening the Commission and, thus, in cancelling the basic statedaim of the reform, which is to enable the Commission to use its limitedresources for the persecution of the most flagrant violations of the Treaty com-petition rules In addition, it was clear by the interventions of Commission offi-cials that the mechanism of co-operation could not transform the Commissioninto an investigator for the benefit of national litigation at the request ofnational courts A radical solution to address the problem of proof beforenational courts would be simply to follow the US model and introduce a system

of pre-trial discovery Indeed, some participants adopted such a view at leastwith regard to pre-trial oral testimony However, it was counter-argued thatsuch an option was not realistic in view of the particular features of civil pro-cedure, especially in continental countries, where proceedings do not terminate

in one trial that has to be prepared in advance, and in any case such a noveltycould not be sector-specific for practical reasons, but it would have to apply tothe whole of civil procedure Another solution that gained widespread support

by the Workshop participants was to introduce by means of Community lation under Article 83 EC a procedural duty on the defendant (in a case where

legis-EC competition law is pleaded as sword) to bear the burden of proof for certainfacts that have occurred in his sphere of influence Thus, if the plaintiff

advanced prima facie evidence of an anticompetitive practice, it would be upon

the defendant to prove the lawfulness of the practice in question by providingprecise information

23 In Article 81 cases this is particularly true when a third party attacks a concerted practice or even an agreement, about which he has no information, since he did not par- ticipate in it and possesses no pertinent documents or other evidence.

A similar problem for the private litigant in EC competition cases is the proof

of the loss sustained as a result of the breach of the antitrust rules In thisregard, one may distinguish between proving the extent of the damage itself andproving the causal link between the latter and the anticompetitive practice Aninteresting proposal was to follow the example of industrial property or unfaircompetition law in some legal systems,24where the loss is usually identified byreference to some criteria that have as one of their objectives to make it easierfor the plaintiff to prove his loss while aiming at stripping the wrongdoer of anyprofit derived from the infringement Restitutionary damages, which are known

in some legal systems, also gained support as a useful remedy especially in caseswhere large groups of consumers claim damages from a producer Proving thecausal link appears more problematic It is worth noting that in those few caseswhere damages actions were brought before national courts the plaintiff veryrarely succeeded in proving the causality between damage and unlawfulconduct The most acute problem lies in determining profit losses, i.e inwhether such losses are due to the anticompetitive practise of a competitor or

to external conjectural economic factors An interesting proposal that againgained support was to ease this specific burden of proof According to this pro-posal a drop in the plaintiff’s turnover in the relevant market and a simultane-ous rise of the defendant’s turnover should be rebuttable evidence that the lossesincurred were caused by the anticompetitive practice in question Anotherinteresting suggestion was for the Commission to provide some guidance tonational courts by publishing guidelines on damages that would define forexample the core violations of EC antitrust rules and the types of loss incurred

by third parties and consumers, and that would also include model-casesdealing with the causality problem

Another consequence of the adversarial system governing civil litigation isthat judges can only exceptionally take up issues that the parties have not

pleaded themselves As for the ex o fficio application of EC competition law by

national courts, one may note a certain divergence between continental legalsystems, where judges at least in theory are more likely to raise such issues even

ex proprio motu, and English law, where such a possibility appears exceptional,

notwithstanding the Court of Justice’s case law, which seems to lead to such aduty of national judges under certain conditions.25

Collective claims was another point of debate The absence of class actions

in Europe as opposed to the US was one of the reasons advanced by some ticipants as to the failure of private enforcement in EC competition law

par-Consumer claims and parens patriae actions to supplement administrative

enforcement were among the choices One proposal was to introduce a Directivethat would grant such rights to certain collective interests, similar to the one

24 This is the case in French and German law.

25 See cases C–312/93, Peterbroeck, Van Campenhout et Cie SCS v Belgium, [1995] ECR I–4599 and C–430/93 and C–431/93, Jeroen Van Schijndel and Johannes Nicolaas Cornelis Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten, [1995] ECR I–4705.

adopted in the area of consumer protection.26 Interestingly enough, newnational laws have in the meantime proved revolutionary in introducing suchcollective claims Thus, the UK Enterprise Bill that has just been introduced tothe House of Commons makes it possible for representative bodies to bringdamages actions on behalf of groups of named and identified consumers.Finally, some participants drew attention to the fact that specific attitudes orcharacteristics of national legal systems might not be in concordance with thestated aim to encourage more private enforcement of EC antitrust rules To givesome examples, in a number of jurisdictions one could detect a certain degree

of reticence to the idea of granting more rights to consumers and a certainadversity towards the litigiousness and ‘compensation culture’ of the US Insome judicial systems, especially in those that are seriously overloaded, prospec-tive litigants are encouraged to pursue their case through other non-judicialchannels or through administrative independent authorities, which in competi-tion law would mean through national competition authorities and theCommission! This would be a sort of ‘renvoi’ that could in effect neutralise thewhole decentralisation initiative (at least as far as national courts are con-cerned)

The majority of the participants were of the opinion that the best choice to

achieve these objectives was through secondary Community legislation rather

than to leave to the European Courts to gradually construct the law TheCourt’s case law has introduced two very important Community law limits tonational remedial and procedural rules These are the principle of equivalenceand of effectiveness, meaning that national remedial and procedural rules mustnot discriminate against Community law rights and must not obstruct the effec-tive exercise of those rights It was thought, however, that this ‘negative inte-gration’ process could not further substantially the effectiveness of privateenforcement, since more ‘positive’ measures were due in order to provide for thesuitable incentives Therefore, a piece of legislation, most likely a Regulation,based on Article 83(2) EC would have to lay down specific rules on remedialrelief, so that individuals can enforce their rights in the field of competition,thus promoting a system of undistorted competition in the internal market.Such legislative measures must be sufficiently precise to satisfy the principle oflegal certainty and the requirement of uniform application of Community law

in the Member States Nevertheless, it was accepted by certain participants thatlegislative interference by the Community might be politically sensitive Thiswas particularly true more for procedural rules than for substantive ones.According to this view complete procedural harmonisation seemed outside thecompetencies of the Community Any initiative in this respect would most likelyaim at sector-specific measures, i.e at rules applicable only to the enforcement

of EC competition law But doubts remained Indeed, it was not obviouswhether the sufficient legal basis for the adoption of secondary legislation (of a

26 Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998

on Injunctions for the Protection of Consumers’ Interests, OJ [1998] L 166/51.

Regulation or of a Directive) in those matters could surely be Article 83, orwhether Articles 95 and 308 EC could also be useful in this regard.

A proposal that at first look seemed not very supportive of private antitrustenforcement as such was made by one participant who was of the opinion thatprivate actions could only operate as an adjunct, but no more than an adjunct

to public enforcement According to this view private law can be no substitutefor public law in the field of antitrust enforcement Its primary function is tocompensate persons injured by infringements of competition law established bythe administrative authorities This view seems to contradict the US model of

‘private attorney-general’, but at second look such a verdict calls for a qualication One has to admit that the current level of private enforcement in Europe

fi-is rather meagre It has many times been noted with regret that no privateactions have been brought in Europe not even in the most appropriate casewhen a practice has already been condemned by the Commission To encour-age the compensatory role of private action and to view private enforcement as

a complement to public enforcement would be a good start In addition, the tinction between the compensatory and the deterrent role of private action isnot really meaningful If damages awards that compensate the victims ofanticompetitive practices were to grow, this undoubtedly would be seriouslytaken into account by future wrongdoers, who would have to consider the pos-sibility of their exposure not only to administrative fines but also to civildamages

dis-That is why this proposal gained considerable support by the other pants who thought that private and public enforcement should ideally be com-plementary to each other In the words of a participant ‘an optimalcombination of private and public enforcement would be when plaintiffs go tocourt for interim relief — which might be obtained faster in court than from anadministrative authority, then go to the administrative authority with the actualcomplaint — so that the administrative authority investigates the facts of thecase, and conclude the process with a damages lawsuit once the facts of the casewere established by the public enforcer’

partici-A similar proposal that was advanced in the Workshop proceedings was toconsider giving injured private parties the opportunity to join public law pro-ceedings preferably before a specialised court reviewing an administrative

authority’s decision and attach thereto private law claims (a sort of partie civile).

Again this novel suggestion found substantial support This proposal relied onthe view of some participants that specialised administrative tribunals exercis-ing a judicial review of national competition authorities’ decisions should bepreferred from generalist civil courts.27It is interesting again to note that thissystem was proposed in a White Paper of the Department of Trade and

27 Alternatively, a di fferent proposal was to introduce specialised competition nals or panels as parts of civil-commercial courts There were, of course, some views expressed against any specialisation, because it was considered unworkable to separate the competition law issue from other legal issues.

tribu-Industry (DTI) in the UK that was published shortly after the Workshop.28Inthis document it was proposed to widen the remit of the CompetitionCommission Appeal Tribunals in order to enable them to hear civil claims fordamages in competition cases This would make better use of existing judicialresources reducing the costs for the parties Another proposal was to makebinding on the courts determinations of competition infringements by deci-sions of the competition authorities The current Enterprise Bill has adoptedthese proposals and extends these possibilities to EC competition law infringe-ments Under the new system it will be possible to bring a damages claim in thefuture Competition Appeal Tribunal, where it has been established by either the

Office of Fair Trading or the European Commission that an Infringement ofcompetition law has occurred.29

On the institutional side of the future decentralised system of enforcement,

one of the most significant issues was coherence Some participants stressedthat even in the new system the Commission would retain its primary role AnAmerican participant noted that the existing and future powers of theCommission as to national courts and authorities are by far greater than thosethat the US federal authorities ever had as against the States According to aCommission official the Masterfoods judgment30by stressing the special roleplayed by the Commission in the application of EC competition law based

directly on the Treaty dissipated the fear that the Delimitis31principles on theduty of national courts to avoid conflicting decisions might have been moti-vated by the Commission’s traditional exemption monopoly

A point of debate during the Workshop proceedings was whether Article15(1) of the Draft Regulation introduced an obligation of the Commission toentertain national courts’ requests for information or for opinions Some par-ticipants argued that the letter of the proposed provision was rather discretion-ary Commission officials, however, stressed that the Commission was indeedunder such an obligation as existing case law and Article 10 EC made clear.Some participants noted that the co-operation procedure of Article 15(1) hadnot been very successful in the past and that, particularly in some countries,there was a certain reluctance of courts to seize an administrative authority likethe Commission According to one Commission official the inclusion of the co-operation mechanism in the new Regulation would overcome such obstacles atthe national level Another reservation was that this procedure raised concerns

of due process, since the Commission’s opinion might be followed in a paste manner by the judge, without the parties having the opportunity to effec-tively contradict it Finally, there was some debate as to whether these opinionscould go as far as interpreting Community law, which only the European Court

copy-28 Department of Trade and Industry, Productivity and Enterprise, A World Class Competition Regime, July 2001.

29 The right to bring such a claim will be without prejudice to the existing right to bring damages claims in the courts.

30 Case C–344/98, Masterfoods Ltd v HB Ice Cream Ltd., [2000] ECR I–11369.

31 Case C–234/89, Stergios Delimitis v Henninger Bräu AG, [1991] ECR I–935.

of Justice had the competence to do The prevailing view was that theCommission could act as legal or economic advisor and in effect could performessentially the same work as the ECJ in preliminary ruling proceedings with oneimportant limitation being that its views are not binding upon national courts.The duty of national courts under Article 15(2) of the Draft Regulation totransmit to the Commission copies of judgments that have applied EC compe-tition rules was not considered problematic by the majority of participants,though some voices of concern were also heard based on the fear that somenational judges might view this as an encroachment on their independence.According to a Commission official this specific provision had to be read in con-

junction with paragraph 3 of Article 15 on the amicus curiae intervention of the

Commission before national courts This meant that in the majority of cases theCommission would intervene only at the stage of appeal, after it would haveaccordingly been alerted through the mechanism of paragraph 2.32

The possibility of the Commission’s intervention as amicus curiae in national

litigation drew considerable attention The Commission officials, responding tofears that the Commission might be overburdened with filing amicus briefs,

stated clearly that this was to take place in exceptional circumstances and only

in the Commission’s initiative, when important EC antitrust policy questionswere at stake Some participants, however, thought that it would be more appro-priate if the court had the final word as to the admission of the Commission tothe process Due process concerns were heard in this specific case, too

Arbitration Panel 3 dealt with an issue that some years ago would not have

easily been addressed at a competition law conference Arbitration had arisen

as a concern for the first time already during the 2000 Workshop proceedingsand many questions had remained outstanding

The relationship between EC competition law and arbitration had an esting development The latter in the past was seen rather suspiciously by theCommission This suspicion, not to say hostility, was due to the fear that privateparties may resort to arbitration in order to evade the application of EC com-petition law Such a possibility was basically correlated with certain anecdotalevidence that international arbitrators sitting in non-EU jurisdictions, whichwere important arbitration centres, were not paying due deference to EC com-petition rules However, this stance has certainly changed in the last decade or

inter-so The Commission no longer obligates the parties to an exempted agreement

to notify any future arbitral awards, and current block exemption regulations

do not contain provisions on the withdrawal of the block exemption’s tion in the event of an offending arbitral award Indeed, of late one may even

protec-32 A pertinent question that arose in the Workshop proceedings was whether any information transmitted to the Commission through Article 15 could be used for pur-

poses other than preparing its amicus intervention, for example for opening an

investi-gation or for prosecuting another infringement One participant thought that the Commission should not be constrained to act as if it had never come across such evi- dence, but that it would have to summon a new investigation and obtain the same evi- dence over again.

speak of an embracement of arbitration by the Commission as an alternativedispute resolution method that can work in some cases as a complement tocompetition law enforcement Thus, quite surprisingly, there has been a wholeseries of recent merger Decisions clearing concentrations subject to some con-ditions or obligations, one of which is recourse to arbitration for certaincompetition-related disputes In those cases arbitration is used as a proceduralremedy that ensures that parties comply by their behavioural commitments.The basic conclusion of Panel 3 was that arbitrators, in their capacity ofprivate judges, are affected by the reform of EC competition law enforcement,just like ordinary judges are Notwithstanding the absence of any mention ofarbitration either in the White Paper or in the Commission’s Draft Regulation,something that was deplored by some participants, the arbitrators would also becalled upon to apply Article 81(3) EC in the future Some participants stressedthat in this respect arbitration had in fact more advantages than litigation, sinceparties may select arbitrators This means that if a party perceives the likelihood

of a competition law issue arising during the arbitral proceedings, he could ignate an expert as arbitrator In addition, arbitration is devoid of the problemsthat judges may face with their limited discovery powers33and arbitrators havemore time to devote to a single case than most judges do

des-Arbitrators usually come across competition law issues in an incidental way

In most cases there will be a contractual dispute and the competition law tion will be raised as a defence by the defendant The contract — typically a dis-tribution, licensing or cooperation agreement — will contain an arbitrationclause and the plaintiff will advance claims based on breach of contract, whilethe defendant will raise the nullity of the contract or of certain parts of it.34Onthe other hand, it is practically impossible to see a non-contractual liability case

ques-be decided by arbitrators, since it would ques-be extremely rare for the involved

persons to conclude a post litem arbitration agreement This is undoubtedly a

serious limitation of arbitration as a forum for private antitrust enforcement.Notwithstanding this limitation, all participants noted the dominant andalmost exclusive role of arbitration in international business relations The factthat most international commercial contracts of some significance contain arbi-tration clauses should not go unnoticed by the Commission in its modernisa-tion initiative While some participants thought that the Commission’signorance of arbitration in the White Paper and in the Draft Regulation was amissed opportunity, others argued that this was the correct manner to deal with

33 A certain weakness of arbitration exists as to third-party evidence The latter can

be usually obtained through the intervention of state courts.

34 Theoretically one cannot exclude the possibility that EC competition law could also

be pleaded as sword before arbitrators in a contractual law dispute This could happen

in case of a co-contractor’s damages claim because of harm incurred through his counter-party’s violation of the competition rules In all cases, even if the contract were

to fail because of Article 81(2), still the arbitration clause, because of the doctrine of arability, would be valid and the arbitrators would have to decide the issue, subject to the arbitration clause being broad enough to cover the dispute.

sep-the question, since sep-the contact between arbitration and Community institutionsand law would rather be indirect and the latter should only come forward at theenforcement stage Consistently with this view, the proposed preventive meas-ures of the Draft Regulation that aim at ensuring the consistency of enforce-ment of EC competition law by national courts were not applicable toarbitration On the other hand, corrective measures were more appropriate toensure the due respect of EC competition law by arbitrators The answer to this

problem was given by the Court’s Eco Swiss ruling,35which considered that theviolation of EC competition rules by arbitrators leads to a duty of nationalcourts to set aside or to refuse to enforce the final arbitral award in question.The possibility of an arbitral award’s being set aside or being refused recogni-

tion and enforcement in case of a violation of ordre public was considered by

far the most effective corrective mechanism

During the Workshop proceedings some participants questioned whetherevery violation or non-application of EC competition rules had to be consid-ered an offence against public policy The majority view was that a certaindegree of seriousness of the infraction of EC competition law was necessary, inorder for an arbitral award to be considered offensive to ordre public and to be

set aside or refused enforcement A complete disregard or unawareness of thatlaw by the arbitrators would certainly be objectionable, even if non-deliberate

A fortiori so, when the agreement or practice in question is particularly

repug-nant, such as price-fixing, market-sharing or bid-rigging On the other hand, asimple misapplication or incomplete application of EC competition law might

not qualify as a violation of ordre public, at least if arbitrators have acted in an

honest and diligent way, unless a gross mistake has been committed by them

There was some discussion about the real impact of the Eco Swiss judgment

on arbitration Most participants thought that this judgment did not introduce

a legal obligation as such of arbitrators to apply EC competition law This was

so, because arbitrators do not fall under Article 10 EC, which can only bindnational state courts However, it was also noted that the ECJ had sent a pow-erful message to arbitrators that they should apply Community law provisions

of a public policy character, such as the Treaty competition rules are, even ex

o fficio, otherwise their awards would be liable to annulment or

non-enforce-ability.36Indeed, this result was the indirect consequence of a Community lawduty imposed upon national courts to exercise an appropriate review over arbi-tral proceedings and awards

Another issue that — one could say — somewhat unexpectedly came to the forewas the inadmissibility of Article 234 EC preliminary references by arbitrators as

35 Case C–126/97, Eco Swiss China Time Ltd v Benetton International NV, [1999]

exequa-a result of the old Nordsee cexequa-ase lexequa-aw.37A majority of participants objected to thisjurisprudence of the Court of Justice and considered that arbitrators weredeprived of a very important mechanism, thus being at a comparative disadvan-tage in comparison with courts This was particularly regrettable under the futuresystem of decentralised enforcement of EC competition law Some participantsthought that the ECJ jurisprudence was self-contradictory, because on the onehand it was imposing upon arbitrators to apply EC competition law, while on theother hand it was preventing them from addressing requests for preliminaryrulings on the interpretation of this law One participant thought in this regard

that it was exactly the ordre public communautaire principle established in Eco

Swiss that should be the criterion for determining which arbitration tribunals are

entitled to seize the Court of Justice through Article 234 According to this posal, where an arbitration tribunal must apply EC competition law as part ofthe Community public policy, the same arbitration tribunal should also availitself of the preliminary reference procedure Another proposal to address thisproblem was to make full use of the possibility provided for by the Nice Treaty(Article 225(3)) to transfer to the Court of First Instance the competence to hearpreliminary references in specific areas Competition law could be a first candi-date and in such a case the CFI should also entertain requests coming from arbi-trators In contrast to these views, some other participants stressed the fact thatarbitrators, not being judicial organs of the Member States, could not be boundeither by Article 10 or by Article 234 EC It was only national courts exercising areview over arbitral proceedings and awards that could be so bound According

pro-to one participant there was a balance of indirectness between Articles 10 and

234 as far as arbitration was concerned: Arbitral tribunals are not directly bound

by Article 10 EC to apply Community law and vice versa they cannot base rights

on that provision that national courts may enjoy It is only indirectly that Article

10 EC comes into play, through the intervention of state courts By the sametoken arbitrators cannot directly seize the European Court of Justice by virtue ofArticle 234 EC and, again, a question of EC law arising in arbitration can reachthe Court only indirectly through the state courts, while the latter exercise theirfunctions of assistance and supervision

The inability of arbitrators to address preliminary questions of EC tion law to the ECJ does not mean that the former would be left entirely help-less Most Workshop participants stressed the fact that the Commission couldprovide very useful support to arbitration in the context of the application of

competi-EC competition law In that regard, arbitrators could seize the Commissionwith questions of fact or law, which should be in the interest of the latter toanswer While there was no Community law duty of the Commission to co-operate with arbitrators and while arbitrators themselves were not bound asagainst the former, since Article 10 EC and Articles 15 and 16 of the Draft

37 Case 102/81, Nordsee Deutsche Hochsee fischerei GmbH v Reederei Mond Hochsee fischerei Nordstern AG & Co KG and Reederei Friedrich Busse Hochseefischerei Nordstern AG & Co KG, [1982] ECR 1095.

Regulation do not apply to arbitration, nevertheless, on an informal basis, theyshould be able to seek the Commission’s assistance Any disrespectful attitude

of the Commission towards arbitration in this regard would run counter to thehistorically long-established recognition of arbitration in all Member States as

an alternative judicial forum At the same time, it would not serve its purpose

to further the private enforcement of EC antitrust law and it might alienatearbitrators, with the possible repercussion that the latter would rather suppress

a difficult competition law issue, instead of running the risk to decide it wronglythemselves and, thus, of exposing their award to an annulment action Suchassistance, according to some participants, should equally be given even to non-

EU based arbitral tribunals In addition, a certain proposal that gained somesupport was for the Commission to publish a soft law instrument in the future(a Communication or a Notice) that would deal with arbitration and with themodalities of a possible co-operation practice with arbitrators Such an instru-ment’s usefulness would basically be to raise the EC competition law awareness

of arbitrators and of the parties to arbitration proceedings

During the Panel 3 proceedings particular emphasis was given on tional arbitration as opposed to the rather marginal role of domestic arbitra-tion (as far as EC competition law disputes were concerned) The issue thatarose and that was extensively treated was how EC competition law comes intothe dispute in an international arbitration In private international law EC com-

interna-petition rules are considered mandatory rules (lois de police) From the

stand-point of EU national courts, they are integrated in the national legal order andare classified as mandatory rules of the forum However, in international arbi-

tration the arbitrator has no lex fori and for this reason the distinction between

mandatory rules of the forum and foreign mandatory rules is no longer ingful The question of the application of such mandatory rules by interna-tional arbitrators has been thoroughly debated in theory Some writtencontributions described in detail how arbitration theory and practice has dealtwith it, but for the sake of simplicity we can omit this very interesting analysis.The general conclusion that was reached by the Workshop participants was that

mean-in practice mean-international arbitrators would apply EC competition law even ex

o fficio and even in cases where the applicable law of the contract is not one of

an EU Member State This is so, less as consequence of a clear obligation borne

by them and more as the expression of the arbitrators’ will firstly to adhere tothe perceived legitimate expectations of the parties that the arbitration tribunaldoes not ignore mandatory rules applicable to their contract, and secondly toproduce an award that will be enforceable

Criminal Sanctions Panel 4 dealt with an issue not falling under the private

enforcement heading: criminal enforcement of EC competition law As such, this

theme had a priori a sort of ‘futuristic’ touch However, the substantial and very

interesting — even spirited at times — discussion during the Workshop ings proved that criminal sanctions were not such a temporally distant theme.The general rationale behind the proposals to introduce individual criminalsanctions in EC competition law is that undertakings or companies do not

proceed-really ‘decide’ to violate the law Rather, it is natural persons within the firm—entrepreneurs, managers and employees — that commit the acts that are legallyattributed to undertakings under the Treaty competition rules At present,public enforcement of EC competition law relies basically on corporate sanc-tions, i.e.fines applicable to undertakings.38While nobody doubts the signifi-cance of such fines, there are, however, doubts as to their effectiveness The basicarguments against sole corporate sanctions are that an effective deterrent effect

of antitrust enforcement can only be achieved with very high fines and thatusually the fines applicable to companies do not guarantee adequate incentivesfor their managers to respect the law As to the level offines a presentation made

at the Workshop proceedings argued persuasively that these, in order to have an

effective deterrent function, they would have to extremely high, even to exceed

150 per cent of a company’s annual turnover related to the products concerned.However, the imposition of so high fines was impossible, not only because ofthe limits set by current law, but also because companies would not simply havethe ability to pay them In addition, imposing high fines has undesirable side

effects Companies might reach the bankruptcy point and in any case there will

be social costs for their creditors and workers, as well as for the taxpayers.Therefore, a proposal, welcomed by some participants but strongly opposed

by others, was to introduce criminal sanctions including imprisonment for viduals responsible for the anticompetitive behaviour of companies According

indi-to this view these sanctions should complement the already existing corporatefines Imprisonment, in particular, should be introduced only for the mostserious infringements of EC competition law, such as horizontal price-fixing,bid-rigging and market-sharing These criminal sanctions would eliminate theproblem of companies’ inability on the one hand to pay excessively high finesand on the other hand to fully control their managers Finally, company man-agers would be able to resist pressure coming from their employers to break ECantitrust law and in the aggregate people’s moral commitment to the rule of lawwould be strengthened

The most important advantage of the introduction of individual criminalsanctions would certainly be their deterrent effect Indeed, many practitionersduring the Workshop proceedings referred to their experience of having to reply

to their clients whether in Europe an antitrust violation would send individuals

to prison This surely meant that criminal sanctions — and imprisonment inparticular — had an immense effect on the attitudes and behaviour of companyexecutives

The same proposal, however, met considerable opposition during the Panel 4proceedings Some of the arguments against criminal sanctions that were putforward were of principle A serious argument was that high standards for the pro-

38 Whether these could be categorised as administrative, criminal or criminal in nature was a question that was debated during the Panel 4 proceedings However, the nature of the current fines was not the issue The real question was whether

administrative-to introduce individual fines and/or imprisonment in addition to such corporate fines.