The Private Enforcement of Competition Law in Ireland

Competition is recognised as a key driver of growth and innovation. Competition ensures that businesses continually improve their goods and services whilst striving to reduce their costs. Anti-competitive conduct by businesses, such as price-fixing, causes harm to the economy, to other businesses and to consumers. It is small businesses and the consumer who ultimately pay the price for anti-competitive conduct. A coherent competition policy that is both effectively implemented and effectively enforced is essential in driving growth and innovation in a market economy. The importance of competition was recently emphasised when the EU/ECB/IMF 'Troika' included a number of competition specific conditions to the terms of Ireland's bailout. Both Irish and Community law recognise the right for parties injured by anti-competitive conduct to sue for damages. This right to damages, in theory, allows those that have suffered loss to recover that loss whilst helping to deter others from taking the illegal route to commercial success. However private actions for damages in Ireland are rare.
This book asks what the purpose of private competition litigation is and questions why there has been a dearth of this litigation in Ireland. The author makes a number of suggestions for reform of the law to enable and encourage private competition litigation. The author takes as his starting point the European Commission's initiative on damages actions for breach of the EC antitrust rules and compares the position in Ireland to that currently found in the UK and US.

Autorentext

David McFadden is Legal Adviser and solicitor to the Irish Competition Authority and has published extensively on competition law and other regulatory issues in Ireland.

Inhalt

1: INTRODUCTION
Overview
Structure of the Book
Some Issues Not Addressed in this Book
2: DAMAGES ACTIONS: ENFORCEMENT OR COMPENSATION
Introduction
The Purpose of Private Actions: Enforcement Privatised?
The White Paper: A Shift in Emphasis?
Community Law on the Concept of Private Enforcement
Private Antitrust Law Enforcement: The American Model
Commission Following the American Model?
Private Enforcement of the Competition Rules in Ireland
Private Action as Enforcement Tool: Is it an Appropriate and/or an Effective Concept?
Wils' Three Tasks of Antitrust Enforcement
Conclusion
3: DAMAGES ACTIONS FOR COMPENSATION: WHO CAN SUE AND FOR WHAT?
Introduction
Who is Actually Injured and Therefore Can or Should Sue in Damages?
Secondary Victims Revisited: Indirect Purchasers and the Passing on Defence
Defining Damages in Private Competition Cases: The Commission Initiative
Damages but Not Restitutionary Damages
Defining Damages in Competition Cases in Ireland: Donovan v ESB
Quantifying Damages
Conclusion
4: COLLECTIVE REDRESS
Introduction
Recap: Legal Requirement for Effective Redress
The Debate in Europe
Overview of the US Class Action
The UK Models for Collective Redress
Conclusion
5: COLLECTIVE REDRESS FOR BREACH OF COMPETITION LAW IN IRELAND
Introduction: Collective Redress in Ireland, the Need, the Law and the Policy
The Legal Need to Safeguard Citizens' Rights under the Treaty
Some Reasons for Introducing Class Actions in Irish Law
The Law in Ireland on Multi-Party, Representative and Class Actions
The Competition Authority's Evolving View
Counter Arguments to the Competition Authority's View
Public Policy in Ireland on Damages and Collective Redress
Conclusion
6: LITIGATION FUNDING, CONTINGENT FEES AND THE LAW OF CHAMPERTY
Introduction
The Funding Barrier to Private Actions
The Law on Maintenance and Champerty
Contingency Fees and Conditional Fee Agreements
Litigation Funding by Third Party Professional Funders
Funding Litigation in Ireland: A Confused and Inconsistent State of Affairs
Public Policy on Maintenance and Champerty in the Irish Cases
Public Policy and the Law of Maintenance and Champerty in England and Wales
Conclusion: Litigation Funding and Contingency or Conditional Fees for Damages Actions in Ireland?
7: INCENTIVISING PRIVATE ACTIONS
Introduction
The Green Paper and Double Damages
The Case for Multiple Damages
Double Damages in Ireland: A Fanciful Idea?
Conclusion: Double Damages for Standalone Actions
8: RECENT DEVELOPMENTS
Introduction
The Financial Crisis and Ireland's Bailout
Conclusion
9: CONCLUSIONS
Findings and Recommendations
Private Actions for Damages in Ireland: Why and How?
Private Actions for Damages in Ireland - Why?
Private Actions for Damages in Ireland - How?
Conclusion: Damages Actions in Ireland, Where are we Now?
Books and Chapters in Books
Journal Articles
Consultations, Reports, Submissions, Papers
Newspaper Articles
Speeches and Conference Papers
Legislation, Notices, Parliamentary Debates, Press Releases and Miscellaneous Sources