New Modes of Governance in the Private Enforcement of the EU Antitrust Rules

In 2013, the European Commission published its long-awaited proposal for the adoption of a harmonising directive for procedural rules governing actions for damages before national courts for breach of the EU antitrust rules together with a non-binding measure on quantification of harm.  The introduction of sector specific legislative measures on collective redress was seen as politically and culturally premature for some of the Member States.  Two non-binding instruments were published instead.  Seen as a global first by the Commission, the proposals represent a significant shift in the mode of governance in this policy field on three fronts which this paper will explore.  First, they are the culmination of a controversial debate into how (and whether) to increase private litigation as a complementary means of enforcement of the EU antitrust rules. Second, the governance of private enforcement has shifted away from reliance on the principle of national procedural autonomy and the principles of effectiveness and equivalence to a Europeanised regulatory approach.  Third, the proposals themselves are illustrative of the growing hybrid approach to regulation. This paper will further consider the tensions between the Commission’s new governance strategy and its own good governance principles, with a particular focus on effectiveness and coherence.