5 - Democratic Values in the Court of Justice Adjudication on the Private Enforcement of the European Union Competition Law

Summary

INTRODUCTION

Democracy and equality of citizens are the fundamental values of the European social and economic order. This axiological assumption is generally reflected in extensive legal regulations organizing the social and economic life in the European Union (EU). For the purposes of this chapter, a detailed analysis of those foundations intend to be limited to the manifestations of the democratic values in the Court of Justice of the European Union (CJEU) adjudication in the selected issues of the European antitrust law where, under private enforcement against practices violating the prohibitions of the European antitrust law, equal participation and citizen's access to the proceedings before the courts, based on the principle of freedom of choice of all concerned, are ensured.

Competition, understood as an ideal position equilibrium, which confirms the optimal allocation of recourses and the protection of consumer's interests, is essential for the social welfare. Yet the conditions for optimal competition and its further functioning are not guaranteed only by the free market and economic mechanisms. Historically, there were two ways of dealing with competition law regulation. Looking at the gradual transformation of the European law in the field of competition law, both dominant approaches, that is the Anglo-American one, following the case-by-case logic, and the European (continental) one, that takes more policy-based attitude, were adopted. The foundation of the European antitrust law can be identified in Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU),1 which respectively address the issue of “undertakings” distorting the internal market by agreements, decisions of associations of undertakings or by concerted practices,2 and the abuse of their “dominant position”. Whenever both prohibiting agreements and abuses of dominant position affect the trade between EU Member States under the Treaty, they are enforced by the European Commission and by the National Competition Authorities (NCA). Both EU highest courts as well as national courts can adjudicate the EU competition law.

In the context of the private litigation, Articles 101 and 102 TFEU (until the 2003 reform of the European antitrust law) were rarely invoked by private parties to claim damages and injunctions.