Neelie Kroes, the European Competition Commissioner, recently
gave two speeches in Paris and New York, dealing with the Commission's
intention to promote private actions for damages as a means of ensuring
compliance with the competition rules.

The Commission considers that private actions for damages can be
used as a means of usefully facilitating justice for individuals and
small businesses who have found themselves harmed by anti-competitive
behaviour. Private actions for damages are considered to provide a
means, not only for curing, but also of preventing anti-competitive
activities, as a well developed private action regime would create a
strong deterrent to anti-competitive behaviour.

The Commission contends that consumers and small businesses
currently find the hurdles to enforcing their European competition law
rights before their national courts to be too great. In her speeches,
Kroes set out the importance of making the competition rules directly
relevant for citizens. Competition authorities are required to set
their own priorities and it is not likely that these priorities will
coincide with the specific interests of individuals. Private
enforcement gives individuals the opportunity to pursue their own
agendas.

Kroes acknowledged that it is important to set up a system that
gives individuals and small businesses an effective means of pursuing
an action for damages and a less than adequate system could disable or
discourage individuals from bringing actions. The Commission is issuing
a Green Paper to discuss and explore the ways in which to achieve this
goal.

The Green Paper is expected to be published before the end of this
year. In it, and in her speeches, Kroes calls for the contributions of
interested parties. It is anticipated that the Green Paper will include
the following issues: access to evidence for plaintiffs; the financial
risk assessment of the plaintiff; the possibility to bring collective
or representative damages actions; whether the passing on defence
should be admitted; and, whether or not there is a need to prove intent
or negligence on top of proving the infringement.

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