ACADEMIC ARTICLE SUMMARY
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
Publication Date:
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ARTICLE SUMMARY
Summary:
This paper examines European efforts to involve national governments and the private sector more in competition policy.
POLICY RELEVANCE
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
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.