Competition Law Enforcement in Europe (LAWS0065)

This module will deal with the practical side of enforcement of European Competition Law.

The module deals with two sets of questions. The first set of questions concerns the investigation stage. What are your options when your client rings you early in the morning and tells you that the competition authority wants to search the company (or private) premises? Does your client have to answer questions in a request for information even if the answers would incriminate your client? The second set of questions concerns the remedy stage. What level of fines will your client have to expect? Are there criminal sanctions for competition law infringements? Can your client avoid fines and/or criminal sanctions by applying for leniency or settling the case? Will your client be liable for damages? What does the new European Damages Directive mean for the future of private actions? While the questions above have been framed from the perspective of infringers and their legal adviser, the issues dealt with are equally relevant for enforcers: What is the optimal mix of remedies? Should there be more private actions? Should there be more criminal enforcement? How should leniency programmes be designed? All these questions will be analysed not only with regard to the European legislation (in particular Regulation 1/2003), but also from a comparative perspective. Please note that this module deals with the enforcement of competition law and does not (directly) deal with issues of substantive competition law. Basic knowledge of substantive competition law is strongly recommended – either acquired previous to the LLM or by taking one of the two substantive competition courses (LAWS0049: EU Competition Law or LAWS0097: US Antitrust Law and EU Competition Law: A Comparative Perspective).

Module syllabus

This module is subject to change.

• Introduction to EU Public Enforcement: Regulation 1/2003 and the question of future procedural harmonisation
• Investigations and Procedural Rights
• Fines and Settlement Procedure
• Leniency programmes in the EU and Member States
• Private enforcement I: Right to damages, direct/indirect purchasers and pass on
• Private enforcement II: Quantification of Damages
• Competition Law Enforcement, Compliance and Corporate Governance
• Remedies and due process in the enforcement of competition law
• Criminal enforcement
• Optimal Enforcement – What is the best mix of public and private enforcement?

Recommended materials

Module reading lists and other module materials will be provided via online module pages, available at the beginning of term once students have enrolled.

Preliminary reading

For those who want to prepare the module in advance, go to the SSRN author page of the current Hearing Officer of the European Commission Wouter Wils (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=456087) and start reading the articles you find interesting; all of them deal with issues highly pertinent to the course (and most of them will be required or highly recommended reading anyway). A good starting point would be:

• Wils, Wouter P. J., Ten Years of Regulation 1/2003 – A Retrospective (June 4, 2013). Journal of European Competition Law and Practice (2013 Forthcoming); presentation at the conference ’10 Years of Regulation 1/2003′ (Mannheim Centre for Competition and Innovation, 7 June 2013). Available at SSRN: http://ssrn.com/abstract=2274013
• Wils, Wouter P. J., Powers of Investigation and Procedural Rights and Guarantees in EU Antitrust Enforcement: The Interplay between European and National Legislation and Case-Law (November 3, 2005). World Competition: Law and Economics Review, Vol. 29, No. 1, 2006. Available at SSRN: http://ssrn.com/abstract=1319243

For those who want to do some relatively light summer reading related to the module, there are two “true antitrust crime” novels/documentaries related to the module content:

• Christopher Mason, The Art of the Steal – Inside the Sotheby’s-Christie’s Auction House Scandal – Penguin Group USA (2005) – Paperback – 416 pages – ISBN 0425202410 (please note: the film “The Art of the Steal” is unrelated to this book)
• Kurt Eichenwald, The Informant – Broadway Books (2001) – Paperback – 656 pages – ISBN 0767903277

Both these books are well researched and easy reading. The second book has been adapted into a comedy film by Steven Sonderbergh (featuring Matt Damon). The focus of the film is not quite as much on the antitrust aspects that are relevant to the module, but is good entertainment and mildly informative as well.

Key information