Challenges of Economic Proof in a Decentralized and Privatized European Competition Policy System, The

Article Source: Journal of Competition Law and Economics, Vol. 4, Oxford University Press, pp. 177-206, 2008
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This paper examines European efforts to involve national governments and the private sector more in competition policy.


Policy Relevance:

New polices about expert witnesses and evidence will be needed to help national courts in Europe resolve complicated competition policy cases.


Key Takeaways:
  • The European Commission (EC) took significant steps towards changing the enforcement of competition policy in Europe in 2002 and 2005, and the effort continues:
    • In the past most of the work enforcing competition policy in Europe was done by the EC.
    • The EC hopes to make it easier for private parties to sue to enforce competition policy in Europe, taking over some of the enforcement burden.
  • Some observers have proposed requiring more and better economic proof in competition policy cases to show that the controversial business behavior really harms consumers.
    • The intent of this change would be to make it less likely that a court will punish behavior that really helps consumers (reducing “false positive” convictions).
    • If courts and litigants do not have the resources they need to satisfy economic proof requirements, the law will be inadequately enforced.
  • In the United States, rules about expert witnesses help eliminate unreliable testimony and weak cases.
    • Private parties have broad powers to discover economic evidence, and can bring their own experts to testify before the court.
  • Currently EC proposals seems to disfavor the use of expert witnesses brought by the parties, and favor court-appointed experts.
    • Court-appointed experts may not be adequate to give judges or litigants the resources they need to satisfy economic proof requirements.
    • Nations whose rules do give litigants more resources to find economic proof are likely to become favored jurisdictions to bring lawsuits.



Andy Gavil

About Andy Gavil

Andrew Gavil has been a member of the faculty of the Howard University School of Law since 1989. He has taught courses on antitrust law, civil procedure, complex litigation, federal courts, civil rights litigation, federal regulation, and consumer law. His particular areas of interest include the role of the U.S. Supreme Court in formulating antitrust rules, antitrust litigation, exclusionary conduct by dominant firms, indirect purchaser rights, expert economic testimony and economic evidence, and comparative and international perspectives on competition policy.