The Rocky Path for Private Directors General: Procedure, Politics, and the Uncertain Future of EU Antitrust Damages Actions

For the better part of the past decade, the European Commission has engaged in a dialogue with European Union (EU) citizens and businesses in an attempt to strengthen an almost nonexistent private competition enforcement system. In the United States, where private antitrust lawsuits are most prevalent, litigation is justified on the grounds of both deterrence and compensation. While the Commission wants to make private damages actions the primary vehicle for the compensation of aggrieved parties, recent political pressure has made EU officials claim that government enforcement will remain the predominant means for the deterrence of EU antitrust violations. Furthermore, many EU policy makers have emphasized that they want to avoid what they perceive as shortcomings in the U.S. private enforcement system. In its 2008 White Paper on Damages Actions for Breach of the EC Antitrust Rules, the Commission proposed procedural reforms to incentivize antitrust litigation in member state courts, but it stopped short of offering the full range of rights granted to U.S. plaintiffs. Nonetheless, the Commission drafted a directive in late 2009 that effectively included U.S.-style antitrust class actions, but it quickly withdrew its proposal due to strong opposition in the member states. This Note argues that the EU needs to implement greater procedural reforms than suggested in the White Paper to make antitrust litigation practical and desirable for most parties. It also contends that the need for private enforcement would be more credible if the Commission once again embraced deterrence as one of its central goals. Finally, this Note challenges the notion, perpetuated by many critics and EU policy makers, that the U.S. system is wrought with unrestrained excesses and attorney mischief