Private antitrust litigation | China, Europe, USA

As well defined, competition law is a law that promotes or seeks to broaden market competition by regulating anti-competitive conduct by companies .

Competition law is implemented through public and private enforcement. Competition law is known as anti-trust law in the United States and the European Union, and as anti-monopoly law in China and Russia. 

Since the 20th century competition law has become global.

We will show here below a short review on the anti-trust status in some main jurisdictions from a comparative perspective.

 

China | Is China  heading to the right path?

In China, it is the Anti-Monopoly Law (AML)  that provides for private right of action. With intent to spur private enforcement, the Chinese Supreme People’s Court (SPC) issued interesting Rules on the application of the AML in civil litigation in 2012. 

The antitrust authorities who were not yet really active started since then to increase the application of the antimonopoly law showing a sudden switch in China antitrust regime. 

The defendants seem yet to be more favoured by the Chinese courts which leads to huge contrast with the landscape of the USA antitrust ligation where the applicants have big chance to get their requested compensation.

The Shanghai High Court made a very interesting judgement in August 2013 from which it appears that the court is in favour of agreeing to conduct a comprehensive examination of all related aspects in particular of the pro-and anti -competitive effects in accordance with the  American doctrine of the "rule of reason"...

 

Europe | The Directive of 2014 to ease parties "burdens" ?

The European Commission worked for years to improve the private antitrust enforcement rules.

The recognition of the importance of this sector resulted in the Directive of November 2014,concerning certain rules that govern  actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. 

The changes imposed by the Directive are significant, as it is designed to use national courts to help victims of anticompetitive conduct and cartel behaviour to obtain damages for losses suffered.  The aim of the Directive is to standardise the EU approach across a number of policy areas including the burden of proof. 

Under art 5 and 6 of this Directive, the final decision of a national competition authority will be binding evidence of infringement before the national courts. Following the implementation of this Directive the private damages actions will have more chance to attend their request and get the full compensation where they have been victims of illegal acts. 

The Directive has to be implemented by the Member states in national law by 27 December 2016. Recently the Bulgarian commission for protection of competition started the procedure of amendments in the aim to implement Directive 2014/104/EU.

 

USA | Attraction or rejection of competition?

The Antitrust litigation laws in the USA are regulated mainly by the Sherman Act 1890, the Clayton Act 1914 and the Federal Trade Commission Act 1914.

These Acts first restrict the formation of cartels and prohibit other collusive practices regarded as being in restrain of trade. The antitrust laws are the best enforced in USA, as well in public cases as in private cases.

But the scope of antitrust laws, and the degree of interference in an enterprise 's freedom as well as the level of protection of the smaller business and the consumers are strongly debated. 

The Clayton Act, which offers the successful plaintiff treble damages,is becoming a source of strategic abuse of antitrust laws. The main debate focuses on what should be the real concerns of the antitrust laws.

Is it only designed to the protection of the consumers or does  it reflect a hidden intention to control the economic power in the  public interest?

If antitrust rules are mainly set to encourage the competition in the market, the easy use of these laws can on the contrary result to its rejection.

 

For further information please contact p.leers@a-law.eu