Journal of Competition Law and Economics Advance Access originally published online on October 22, 2007
Journal of Competition Law and Economics 2008 4(1):177-206; doi:10.1093/joclec/nhm025
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THE CHALLENGES OF ECONOMIC PROOF IN A DECENTRALIZED AND PRIVATIZED EUROPEAN COMPETITION POLICY SYSTEM: LESSONS FROM THE AMERICAN EXPERIENCE
Since the announcement in late 2002 of the Modernization Plan, and continuing in 2005 with the release of the Green Paper on damages actions, the European Commission has been committed to a significant restructuring of the EU's approach to enforcing competition laws. Under the revised system as envisioned by the Commission, national competition authorities and private parties will assume a far greater role in supplementing the work of the Commission, which for 50 years has been the predominant competition policy enforcer in Europe. The goal is not only to produce a system of shared enforcement authority, but to promote the continued evolution in Europe of a "culture of competition," while avoiding the creation of a "culture of litigation." If national competition authorities and private parties accept this invitation, however, they are likely to face the same kinds of demands for substantial economic evidence from their national courts that the EC has faced from the Court of First Instance and the European Court of Justice in some of its most complex and challenging recent cases. This paper asks whether national level enforcers, public and private, will have the procedural and evidentiary tools necessary to respond to demands for such economic proof. Drawing on the Commission's recent experiences, as well as lessons from the U.S. experience, it asks whether the Green Paper's treatment of economic evidence is adequate given the importance that economic proof plays today in competition law cases. It then urges the Commission to devote additional attention to identifying and advocating reforms that will more actively facilitate the disclosure, development, and presentation of economic evidence. This paper particularly questions the Green Paper's preference for the use of court-appointed experts in lieu of party-secured expert witnesses. It argues that party and court-appointed experts can perform very different functions in competition law cases and should not be viewed as substitutes. Moreover, it suggests that the Green Paper may significantly underestimate the degree to which party-secured expert economic witnesses will be necessary if national level enforcers—public and private—are to be adequately equipped to meet the burdens of proof they will face. If national enforcers systematically find that they lack the procedural tools necessary to develop the economic evidence they need to meet those burdens, they will reduce or abandon their efforts to initiate competition law actions and it will be less likely that the promise of decentralization and privatization can be realized.
* Professor of Law, Howard University School of Law, Washington, DC. E-mail: agavil@law.howard.edu. This paper is based on remarks delivered at the symposium on Forensic Economics in Competition Law Enforcement, sponsored by the Amsterdam Center for Law and Economics and held at the University of Amsterdam on March 17, 2006. The author wishes to express his appreciation to Professors Maarten Pieter Schinkel and Kati J. Cseres for their invitation to participate in the ACLE Symposium and to two anonymous referees and Jon Lawrence for very helpful comments on an earlier draft. Michelle M. Yost, Howard University School of Law, Class of 2007, provided invaluable research assistance. Portions of the paper are adapted from Andrew I. Gavil, Competition Policy, Economics, and Economists: Are We Expecting Too Much?, in 2005 FORDHAM CORP. L. INST. 575 (B. Hawk, ed. 2006) and are reproduced here with the permission of the Fordham Corporate Law Institute.