Eckart Bueren

Eckart Bueren

Looking back to the competition law year 2018, there have been many remarkable events, bringing inspiration, imitation and confirmation. I will rather arbitrarily tuck three behind my advent calendar flap, just as you might, on some days, find more than one piece of candy awaiting you.

1) Inspiration

The year started with some inspiration for the future development of competition law in January 2018, when the French club des juristes (self-described as the “Premier Think Tank juridique français”) issued a report on the reform of French competition law (including an English summary) that was authored by leading French competition law experts. While the report is overall quite positive on French competition law, it also proposes a total of 60 reform measures. Apart from substantive reform proposals which are specific to French competition law, it also advances organisational reforms that might be inspiring for other jurisdictions – namely, certain changes in the organization of the Autorité de la concurrence, e.g. according economists more influence, more specialisation and better education of courts and officials, and measures to ensure the quality of expert reports.

2) Imitation

As a lawyer, in academia as well as in practice, you may sometimes feel overwhelmed by the wave of new laws and regulations that the European legislature indefatigably produces, particularly since the financial crisis. That is why it is all the more comforting when you look at a new piece of regulation and realize: this looks pretty much the same as what you already know! That’s an experience that competition lawyers could enjoy on 25 May 2018 when the European General Data Protection Regulation entered into force, imitating the public and private sanctions regime of European competition law: “Where administrative fines are imposed on an undertaking, an undertaking should be understood to be an undertaking in accordance with Articles 101 and 102 TFEU for those purposes.” (Recital 150). Fines are to be set taking into account “the nature, gravity and duration of the infringement” (Art. 83(2) lit. a)) and may amount up to 2% and 4% of worldwide turnover, (see Art. 83(4) and (5)). And: “Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation” (Article 82).

3) Confirmation

Even more reassuring than new laws with elements you already know is, of course, confirmation of your own views. In this regard, I dare to add the judgment of the German Federal Court of 12 June 2018 (Grauzementkartell II), essentially endorsing the view that cartel victims have a right to interest on damages of 4% pursuant to sections 849 and 246 German civil code, a view that yours truly had advanced for the first time in an article written in 2012.

 

Dr Eckart Bueren is a Senior Research Fellow at the Max Plank Institute for comparative and international Private Law.