Compensation Fallacay - Private Antitrust Enforcement and the Law of Torts

For more than a decade policy makers have attempted to strengthen the private enforcement of competition law. Private antitrust enforcement is, in essence, the use of civil law remedies in the national courts to enforcement competition law. The current approach to private antitrust enforcement is characterised by a narrow focus on compensation. In this paper I argue that this particular understanding of the functions of private antitrust enforcement is flawed and does not reflect the variety of functions that have been assigned to the law of torts in general. Attaching only a compensation function to private antitrust enforcement limits the remedies that are made available to injured parties in the English courts which, in turn, reduces the effectiveness of competition law enforcement. If a wider understanding of the functions of private antitrust enforcement was embraced, it would make competition law enforcement more forward-looking and strengthen this second pillar of competition law enforcement.