CONTENTS

Preface
Table of Cases
Table of Treaties and Legislation
Abbreviations

Introduction

1. Introduction to Comparative Antitrust Systems
1.1 The Rationale for Comparative Analysis
1.1.1 Foundations of Comparative Antitrust
1.1.2 Pitfalls of Similarity
1.2 The US System: The Federal Antitrust Laws
1.2.1 The Trust Problem
1.2.2 The Sherman Act
1.2.3 The Clayton Act
1.2.4 Other Antitrust Legislation

2. Antitrust Enforcement in the USA
2.1 Decentralized Enforcement in the USA
2.1.1 Federal Enforcement: Department of justice and FTC
2.1.2 Private Enforcement
2.1.3 State Enforcement
2.2 The Litigation Model and Exemptions in the USA
2.2.1 Statutory Exemptions in US Antitrust
2.2.2 Judicially-created Exemptions
2.2.3 Consequences of the US Litigation Model
2.3 A Primer on the US Federal Court System

3. The EC System: The Treaty of Rome and Regulation 17
3.1 The Birth of EC Competidon Law
3.2 Article 81 (formerly 85) and Regulation 17
3.3 Article 82 (formerly 86) and the Merger Regulations
3.4 Private Actions Not Expressly Provided For

4. The UK Systems: From Administration to Prohibition
4.1 Historical Notes on Treble Damages under English Law
4.2 The Post-war Administrative System
4.3 The UK Competition Act 1998: A New Prohibition System?

5. Foundations of Private Enforcement in the Community
5.1 Introduction: Covenants without Swords?
5.2 The Treaty of Rome and the Community Order
5.3 Direct Effect and the Competition Rules
5.3.1 The Primary Line of Direct Effect Decisions
5.3.2 The Secondary Line of Decisions: The Bosch Puzzle
5.3.3 A Modest Reconciliation?
5.4 The Supremacy of EC Law and the Competition Rules

6. Remedy Principles and the Competition Rules
6.1 The National Remedy Principle and the Competition Rules
6.2 Francovich: The Community Remedy Principle
6.3 The 'Sons' of Francoviciz Private Damages Actions for Breach of the Competition Rules

7. Aspects of Private Antitrust Enforcement
7.1 The Private Enforcement System in the USA
7.2 Private Enforcement in the Community System
7.2.1 The Limited Use of Private Enforcement in the Community
7.2.2 Objections to Private Enforcement in the Community

8. Enforcement Pluralism in the Community System
8.1 Concurrent Jurisdiction
8.2 The Co-operation Notice
8.3 Limits on the Duty to Stay Actions
8.4 Narrow Constructionism: The Illusion of Exclusivity
8.5 The Effect of Commission Decisions on Parties before the National Courts Postscript on Reform of Regulation

9. The Legal Basis of Private Actions in the UK under Community Law
9.1 The Search for a National Cause of Action
9.2 The New Torts Approach
9.3 The Economic Torts Approach
9.3.1 Inducement of Breach of Contract
9.3.2 Intimidation
9.3.3 Unlawful Interference with Trade of Business
9.3.4 Conspiracy

10. Community Antitrust Claims as a Breach of Statutory Duty
10.1 Judicial Authority
10.2 The Elements of the Tort of Breach of Statutory Duty
10.3 Evaluation of the Statutory Duty Approach

11. UK Antitrust Claims as a Breach of Statutory Duty
11.1 The National Treatment Principle and Community Claims in the UK
11.2 The Position in Scotland: Discrimination Revealed?
11.3 Breach of Statutory Duty under the Competition Act 1998

12. The Community (Antitrust) Remedy Solution
12.1 New Torts and Old Bottles
12.2 Translation not Allowed
12.3 Is the Remedy National or Community in Nature?

13. Prudential Limitations on Private Actions
13.1 Ripples and Floodgates: The Universal Plaintiff Problem
13.2 Persons
13.3 Business or Property
13.4 By Reason of

14. Limits on Permissible Private Plaintiffs in US law
14.1 Standing to Sue (Locus Stand)
14.2 Article III Standing Distinguished
14.3 The 'Direct Injury' Test
14.4 The Target Arca Test
14.5 The Zone of Interests Test
14.6 The Factual Matrix Test
14.7 The Multi-factor Test: Out of the Analytical Swamp?

15. Special Issues of Standing and Antitrust Injury
15.1 The Antitrust Injury' Doctrine
15.2 The Indirect Purchaser Rule: Passing On
15.3 Preferred Plaintiffs: Consumers and Competitors
15.4 Distribution Restraints

16. Limits on Permissible Private Plaintiffs under EC Law
16.1 Locus Standi in Private Community Antitrust
16.2 Direct Effect and Antitrust Locus Standi
16.3 Locus Standi and the Division of Powers
16.4 The Antitrust Injury Limitation in the Community?
16.5 Indirect Purchasers and Passing-on in the Community

17. Antitrust Damages Principles in US Law
17.1 The Role of Damage Rules in Private Actions
17.2 General Types of Recoverable Damages
17.3 The Fact of Injury Must be Strictly Proven
17.4 The Measurement of Damages may be Estimated
17.4.1 Just and Reasonable Estimates, but Not Speculation
17.4.2 Plaintiffs have Flexibility in Choosing a Mode of Proof
17.4.3 Disaggregation of Damages may be Required
17.4.4 Offsetting Benefits Must be Taken into Account
17.4.5 Mitigation of Damages is Required

18. How Damages are Calculated in Particular Cases
18.1 Overcharges and 'Enhanced Price' Damages
18.2 Lost Profit and Diminished Revenue Damages
18.3 The Terminated Business
18.4 Damages Studies and their Flaws

19. Damage Principies in CommunityAntitrust Cases
19.1 Misperceptions of the Importance of 'Trebie' Damages: Na Overview
19.2 Lack of Pre-judgment Interest Makes Treble Damages Single
19.3 Pre-judgment Interest in the Community: Are Single Damages Treble?
19.4 Exemplary Damages in UK Courts
19.5 Limited Application of Article (now 288) Case Law
19.6 Damages in Community Antitrust Cases in the UK Compared to US Damage Rules
19.6.1 Reasonable Estimation of Damages
19.6.2 Heads of Damages

20. Conclusions: The Labours of Sisyphus

Bibliography

Index