Public & Private Antitrust Enforcement in Competition

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Presentation by Antonio Gomes, Head of Competition Division, OECD, at the II Competition and Regulation Forum: “Reaching for market efficiency” which took place in Mexico on 9-10 January 2018. Further information is available at www.oecd.org/gov/regulatory-policy/.

Government & Nonprofit

PUBLIC & PRIVATE
ANTITRUST
ENFORCEMENT IN
COMPETITION
Antonio Gomes
Head of the OECD Competition Division
Antonio.Gomes@oecd.org
II Competition and Regulation Forum
10 January 2018

• Public enforcement: enforcement action
by competition authorities to detect and
sanction violators of competition law.
• Private enforcement (damage claims):
litigation initiated by an individual, a legal
entity, an organiSation or a public entity to
order the recovery of damages.
PUBLIC & PRIVATE
ENFORCEMENT

Public
enforcement
(establish the illegal
conduct, provide
evidence)
Private enforcement
(deterrence, detection)
PUBLIC & PRIVATE ENFORCEMENT:
related and mutually reinforcing

• All OECD jurisdictions have mechanisms to
promote private enforcement.
• Intensity of private enforcement is uneven:
PRIVATE ENFORCEMENT IN SOME
OECD JURISDICTIONS
Limited experience
IMSS Case
Before the Damages
Directive
Damages Directive
Most extensive
experience
Strong private
enforcement system

• Overall, general civil rules in OECD jurisdictions
do not take into account:
– The relation between public and private enforcement,
– The particularities of antitrust claims:
• Fact-intensive cases
• Asymmetry of information
• Private enforcement proceedings can be long,
cost intensive, uncertain and with tight limitation
periods.
• Accommodation of general civil procedural rules
UNSUITABILITY OF GENERAL CIVIL
PROCEDURE RULES

• Promotion of private claims may diminish
attractiveness of leniency programmes
• Leniency programmes are a key instrument for
competition authorities
• How to balance interests
– Access to leniency documents by category - good
example is the EU Directive.
– Reduce the civil liability of the immunity recipient in
damages action.
BALANCE PRIVATE
PUBLIC ENFORCEMENT

• OECD general civil jurisdictions have been
adapted to accommodate antitrust
damage claims.
• Mexico should do the same.
• In doing so, Mexico should guarantee the
right balance between private and public
enforcement.
CONCLUSION

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