Private enforcement of Antitrust Law

The notion of private enforcement assumes some kind of deviation from the general discipline, in order to incentivize judicial initiatives of private parties. European law does not contemplate any consistent proxy of a specific regime shaped after the goal of promoting private initiatives against breach of competition law. This being the framework, it is to be recognized that, from a legal point of view, the European debate about private enforcement of antitrust law boils down to the produce of an optical distortion, consisting of looking at a (peculiar) case of tort liability through the lens of another discipline. As usually occurs whenever an infringement of a public law, in and of itself susceptible of triggering some sort of administrative or criminal sanction, determines also some loss for an individual, the two trajectories remain conceptually autonomous: a feature that is preserved even where the pre-existence of an administrative ruling influences heavily the practical viability of a private action. Yet, it is obvious that remedies in the context of private litigation also serve the public interest in maintaining effective competition in the market. This circumstance does not mean that tort law, when referred to prejudice provoked by an anticompetitive behaviour, becomes a province of antitrust enforcement. The alternative, then, is not whether there ought to be private redress in addition to public enforcement; the basic question is whether private antitrust damages actions should be encouraged via a more favourable legal framework than the current one.