Compensation function and deterrence effects of private actions for damages : the case of antitrust damage suits
Articolo
Data di Pubblicazione:
2008
Citazione:
Compensation function and deterrence effects of private actions for damages : the case of antitrust damage suits / F. Denozza, L. Toffoletti. - (2008), pp. 1-25.
Abstract:
In this work we take the case of damages actions brought by victims of
antitrust violation, and refer to the current discussion originated by the EC
Commission’s projected reform (the 2005 Green Paper), to show some of the
many failures of damages actions in performing a deterrence function, and
their dependence on the specific features of each case. These problems are
analysed in a conceptual framework in which three sets of choices are
identified, namely those related to: (a) the definition of the illegal conducts; (b)
the management of the risk; (c) the management of the consequences. We
illustrate how the three groups are relatively independent of each other, and
use such independence to address the (supposed) conflict between deterrence
and compensation. Three possible goals of a deterrence policy are considered:
discouraging all illegal conducts, discouraging only those illegal conducts which
are socially inefficient, avoid deterring legal conducts which are similar to illegal
ones. For each of them, the possible disparities between optimal levels of
deterrence and the effects of antitrust damages actions are shown, to conclude
that some consequences of the proposed boost in damages actions (especially
those in terms of over-deterrence) seem overlooked in the current discussions.
Moreover, we maintain that the design of the reform should not be influenced
by a given preference to deterrence or to compensation as the goal to be
accorded priority, since they lie theoretically on autonomous grounds. Rather,
attention should be paid to the empirical interferences, that may require
corrective devices as may be the case with a continuous adjustment of Public
Enforcement to restore appropriate levels of deterrence once the deterrence
effects of the (reformed) private damages actions are observed.
Tipologia IRIS:
01 - Articolo su periodico
Keywords:
Damages ; Compensation ; Deterrence ; Antitrust ; Green paper ; Class actions ; Private enforcement ; White paper
Elenco autori:
F. Denozza, L. Toffoletti
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