van Wijk-Nieupoort, Jacoba Maria; (1998) The application of articles 85 and 86 of the EC treaty by national courts. Doctoral thesis (Ph.D.), University College London.

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Abstract

Decentralised enforcement of EC competition law through private litigation is actively encouraged by the Commission and has been the focus of attention for the last six years. Efficient decentralised enforcement would enable the Commission to focus on essentials and to attune competition policy to the Community's rapid economic changes and looming enlargement. This, together with the fact that national courts possess certain powers the Commission lacks, makes decentralised enforcement of EC competition law increasingly necessary and desirable. Enforcement of EC competition law by national courts is not without problems. These problems are the focal point of the thesis. It is submitted that they constitute the main reason why national courts are still not widely applying EC competition law and, unless some are resolved, may prevent national courts from becoming a realistic alternative forum in the future. The thesis aims to assess most of the existing or expected problems and to propose some constructive solutions. The problems have been divided into two categories. The first category comprises problems arising at national level including issues of international private law and domestic procedural law, simultaneous application of EC and domestic competition law and the economic nature of EC competition law. The second category is confined to problems caused by the wording and arrangement of Articles 85 and 86. The trifurcation of Article 85, the corresponding division of powers between the Commission and national courts and the possibility of parallel proceedings are all factors preventing national courts from enforcing EC competition law fully and independently. The assessments made and suggestions offered in this thesis are intended to serve as a contribution to the current debate on how to achieve a better use of the Commission's resources and a more efficient and widespread involvement of national courts in the years to come.

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