The 'right to damages' in a 'system of parallel competences' : a fresh look at BRT v. SABAM and its subsequent interpretation

This paper is concerned with private enforcement of EU competition law. It revisits the old and (increasingly) established concepts of a 'system of parallel competences' and a 'community right to damages', as established by the European Court of Justice in BRT v. SABAM (1974) and Courage v. Crehan (2001) and through subsequent interpretation by academic commentators and the European Commission. The analysis reveals that the current understanding of these concepts is based on 'teleological retrodictions,' i.e. ex post rationalisations of judgments that are aimed at 'desirable' or 'logical' results. Such retrodictions lead to a path dependency, whereby the seemingly unstoppable 'strengthening' of private enforcement tends to create conflicts with public enforcement. These conflicts ultimately threaten to harm both public and private enforcement. It is only through a deconstruction of the twin concepts that one can clear the way for an internally coherent, functional interpretation of the relationship between 'public' and 'private' enforcement of the rules as a single, integrated system. The paper contains a postscript, with a first impression of the European Commission's proposal for a directive on damages claims, which was published in June 2013, shortly after the conclusion of the original paper