The number of private damages claims for breaches of European and national competition law may be much higher than previously thought, City firm Ashurst said this week.

In a study commissioned by the European Commission as part of its drive to facilitate private enforcement of competition law, Ashurst found that only around 24 claims have gone all the way to judgement, partly because of the obstacles and disincentives to such actions.


These include limitations on access to evidence, judicial inexperience in such cases, difficulties in quantifying damages, as well as the length, cost and complexity of court proceedings.


Waelbroek: EC faces decisions
The study added: 'However, it would equally appear that a large number of cases are settled out of court. Such cases are to a great extent "invisible" and so the occurrence of damage claims may be higher than what the above would suggest.'


The firm won the tender to carry out the study last December and worked with local law firms to analyse the position in each of the 25 EU member states. A team of in-house economists at Ashurst also produced a report on the economic models used in the calculation of damages.


The commission considers that private enforcement may have advantages over action solely taken by regulators, such as better enforcement, deterrence and compensation. Most competition enforcement in the US comes via private actions.


Ashurst partner Denis Waelbroek said: 'The commission is now faced with a number of policy options. Some of these should be reasonably uncontroversial, such as improving publicity of court judgments or providing judges with helpful analytical tools. Others may be more controversial, such as the introduction of punitive damages or the creation of specialised courts.'


It is understood that the commission intends to publish a green paper, probably some time early next year, that will give a clearer idea of what, if anything, it intends to do to remove the obstacles facing private litigants.