Revisiting the European Competition Reform: The Toll of Private Self-Enforcement

Contains fulltext : 137365.pdf (publisher's version ) (Open Access)The recent European competition law reform abolished the more than 40 year-old notification regime according to which companies routinely notified to the European Commission all kinds of envisaged commercial agreements and cooperative business practices other than mergers and acquisitions (e.g. production and R&D joint ventures, licensing and franchising contracts, marketing and sales agreements, information exchange and other collaborative activities with their competitors). A new system of private self-enforcement of European competition law will come in place, which hinges upon two dimensions: enhanced emphasis is given to private self-assessment and the facilitation of legal actions by private entities before the national and the European courts. The shift towards private enforcement reflects an incremental change of competition control. It represents a case of convergence towards the US competition law enforcement system. This paper puts the two dimensions of private self-enforcement in a context of a broader discursive shift in contemporary European economic governance and argues that the reliance on the "market intelligence" in spotting anti-competitive practices indicates a regulatory transformation from a clear-cut, formal and supervisory public control towards a more insecure and more laissez-faire market-based solution. Although it remains to be seen what future impacts the reform will cause, the paper somewhat tentatively contends that this is a rather risky endeavor with regard to regulatory stringency as it may stimulate a claimant's culture driven merely by profit motives. The ones to profit from private self-assessment and increased litigations are law companies providing advocacy services to other companies.23 p