O (des)equíbrio entre o public e o private enforcement do Direito da Concorrência da União Europeia

• Autor(a) principal: Costa, Guilherme Ferraz Torrão de Oliveira
• Data de Publicação: 2018
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/42985
• topic: Private e public enforcement; Diretiva 2014/104/UE; Declarações de clemência; Acesso a elementos de prova; access to evidence.; Directive 2014/104/UE; leniency statements; Direito

At the beginning of the XXI century, the European Union awoke to the need of developing the private enforcement of competition law (essentially through damage actions), not only because it was in a state of absolute underdevelopment, but also because, given the strong tradition of public enforcement in European Union Law, the coordination and harmonization between the two "arms" of competition enforcement was essential. Those were the main objectives of a long process which led to the adoption of Directive 2014/104/EU. However, due to the very strong European experience in public enforcement, many authors see private enforcement as a mere compensatory instrument and such opinions conditioned the choices made by the European legislator. In this sense, the comparison with the legal system of the United States of America is of great interest, since the culture and experience of private enforcement on the other side of the Atlantic is indeed superior, representing a paradigmatic example worldwide. Since the factual analysis of an action for damages under competition law is quite different from what is required in “classical” claims and, apart from that, the existence of a clear asymmetry of information in detriment of the victims, the rules on access to evidence (Articles 5 to 8 of the Directive) are of paramount importance. In the task of managing and coordinating the different interests at stake (on the one hand, developing private enforcement and, on the other, maintaining the attractiveness of one of the main mechanisms of public enforcement, the leniency programs), the European Commission has established, contrary to which was determined by the Court of Justice of the European Union in 2011 and 2013, an absolute and per se prohibition of the disclosure of the leniency statements. In this sense, the main objective of this dissertation is to question such prohibition, because, in the worst-case scenario, it may put in question the principle of effectiveness. In addition, it is presented a hypothesis, which is believed to better safeguard the interests of victims, without putting in jeopardy the attractiveness to the undertakings to submit leniency applications to the competent authorities.