The European Antitrust Review 2009

UK: Private Enforcement

Lesley Farrell and Sarah Ince

01 January 1900

Private enforcement in the UK1 Despite the fact that the House of Lords ruled over 20 years ago in Garden Cottage Foods v Milk Marketing Board2 that third parties are able to sue for damages for breach of articles 81 and 82 EC Treaty,3 enforcement of the competition rules in the UK has until relatively recently been primarily achieved through public enforcement. The introduction of the Modernisation Regulation,4 however, which decentralised the enforcement of articles 81 and 82 by giving power to both national competition authorities and national courts to apply articles 81 and 82 directly and in full, reflected the recognition on the part of the European Commission (the Commission) that a more effective system of competition enforcement could be achieved by enlisting greater assistance from national competition authorities and national courts. Increasingly, the role of private enforcement of the competition rules as a necessary complement to public enforcement is being recognised as an essential aspect of the competition law regime in the EU.5 In the UK, there have been a number of changes to the competition regime that have been designed to facilitate private enforcement of the competition rules. More changes are promised. The aim of the current and future changes is to bolster the position of claimants and put in place -most of the main structural and legal elements for effective private actions in competition law-.6 When considered in the context of recent judgments of the English courts, such as Provimi,7 English rules of disclosure (which are more extensive than in other European jurisdictions), the breadth of experience of the English courts in assessing damages in complex commercial disputes and the speed with which a case can be brought to trial,8 the UK is an attractive place in which to litigate antitrust disputes. Despite these changes, however, -the regime is not yet delivering the productivity and competitiveness benefits to the UK economy that were originally contemplated-.9 Although there has been a steady increase in the number of antitrust claims before the courts in England,10 in particular, in circumstances where there is an existing Office of Fair Trading (OFT) or Commission decision, there has not as yet been the flood of cases predicted by some. We consider below the most important features of the current regime in the UK together with some proposals for future change. We also review the most recent case law.

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