Reformulating the contribution of EU Private International Law to the development of the private enforcement of EU Competition Law

This research considers the role of EU Private International Law (EU PIL) in the development of the private enforcement mechanism for Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). This mechanism refers to actions before national courts seeking, most commonly, compensation for harm caused by infringements of these Treaty provisions. The thesis starts from the assumption that the EU PIL instruments are indispensable for the enforcement of EU competition law claims. Of particular importance are the PIL rules on allocation of jurisdiction, and, identifying the applicable law. This is because EU competition law applies only to behaviour capable of affecting competition in the internal market and trade between Member States. Therefore, litigation based on EU competition law infringements typically (although not invariably) involves cross-border elements. It will be argued that the current EU competition law policy on the development of the private enforcement mechanism is too narrow, and, cannot ensure the full effectiveness of EU law. It argues that the role of the private enforcement mechanism is to complement the public mechanism towards ensuring the objective of detection and deterrence. On the basis of already published empirical evidence, this thesis will demonstrate, in order to unleash the full potential of the private mechanism to complement public enforcement, a complete private mechanism must be developed. It should address a full and varied menu of (EU) remedies alongside the remedy of damages. The thesis will focus on the role of EU PIL in supporting the development of a complete private enforcement mechanism in the shape of one that is capable of complementing public enforcement and of ensuring the full effectiveness of EU law. Given the time and word count limitations of this research, the analysis focuses primarily on the legal and jurisprudential developments in the context of actions for damages. The results of the analysis are far-reaching, and, allow this author to offer conclusions on the future role of EU PIL in the context of damages and non-damages remedies. The emerging conclusion is that the current EU PIL instruments are too rigid for the necessities of EU competition law litigation, and they apply only on account of the lack of more suitable rules. By examining the CJEU jurisprudence, the thesis will demonstrate the emergence of an EU civil law system which supersedes the scope of the substantive law identified by the PIL rules. This author proposes that all remedies which are necessary to ensure the full effectiveness of EU law should be governed directly by EU civil law (as EU remedies). A general jurisdiction rule specific to EU competition law litigation should also be established. The role of EU PIL should be only to support transition to that ideal mechanism. If such a system cannot be achieved, or, if it is not desired upon further consideration, the current EU PIL instruments should, at least, accommodate the particular intricacies and necessities of EU competition law litigation. The thesis contributes to the literature by analysing the role of EU PIL rather than its practical application. While it clarifies the application of the current PIL rules, it aims, primarily to propose a new approach for EU PIL in competition law litigation. Under the proposed approach, EU PIL should play either not role in the long-term development of the private enforcement mechanism, or, play a much more limited role than was assumed at the outset of this research, and, in the pre-existing literature.