Civil Procedure Used for Enforcement of EC Competition Law by the English, French and German Civil Courts

Name: Civil Procedure Used for Enforcement of EC Competition Law by the English, French and German Civil Courts
Brand: Kluwer Law International
Price: 205.99 EUR
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George Cumming Brad Spitz(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 20. April 2007

320 Seiten

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Inhalt

Cover
Half Title Page
Title Page
Copyright Page
Table of Contents
Preface
Introduction
A. Doctrine of Effectiveness
1. Balancing of National Principles and the Application of the Doctrine of Effectiveness
2. Doctrine of Non-discrimination (Equivalence)
3. Concept of Adequately Effective Enforcement
B. Principles Underlying the Rules of Civil Procedure of the English French and German Ordinary Courts
C. Principles of English Civil Procedure
1. Fundamental Principles
2. Overriding Objective and Underlying Procedural Principles
a. CPR 1 Provides the Rules Which Constitute the Overriding Objective
b. Underlying Principles of a Fair Trial and the Rectitude of the Decision
c. Explicit Principles of the Overriding Objective
3. Competition Appeal Tribunal (CAT)
4. Directions: Case Management (CAT)
D. Principles of French Civil Procedure
1. Guiding Principles
2. Guarantees
E. Principles of German Civil Procedure
1. Competition Case Allocation
2. German Civil Procedure and the Basic Law
3. The Relationship between Justice, Legal Certainty and Party Autonomy
4. Fundamental Rights of the Parties
5. The Principles of Concentration and Immediateness
6. Conclusion
Chapter 1 English, French and German Civil Procedure
A. EC Procedural Enforcement Problems
B. English CPR and the CAT Rules: Problems Concerning Enforcement of EC Competition
1. Costs: The Indemnity Rule - Hourly Calculation of Legal Costs
2. Conditional Fees
3. Evidential Burden: Doctrine of Consistency
4. Collective Actions
5. Confidentiality: Confidential Information Pursuant to EC Reg. 1/2003
6. Access to Evidence: Court Seeking Information of Its Own Motion
7. Expert Evidence: Assessors
8. Interim Injunctions
C. French Code Of Civil Procedures: Problems of EC Competition Enforcement in Terms of the Green Paper
1. Collective Actions
2. Burden of Proof
3. Interim Measures
D. German Civil Procedure: Problems of EC Competition Enforcement in Relation to the Commission Green Paper - Disclosure
1. Access to Evidence
Chapter 2 English Procedure: Evidence
A. Burden of Proof
1. Methods of Proof: First Method
2. Crehan: Court of Appeal
3. Crehan: House of Lords
4. Consequences of the Judgment of the House of Lords in Crehan for the Enforcement of EC Articles 81 and 82 in Independent Actions
5. Methods of Proof: Traditional Method
B. Reallocation of Incidence of Proof Following the Doctrine of Effectiveness and Not Discrimination
C. Standard of Proof
Chapter 3 English Procedure: Conditional Costs
A. Conditional Fees in England
B. Inadequacy of the Current System of Judicial Cost Control
C. Breach of ECHR Article 6
D. Breach of EC Doctrine of Effective Enforcement by CFAs
E. Costs and Enforcement of EC Articles 81 and 82 in the UK
Chapter 4 English Procedure: Expert Evidence and Assessors
A. Access to Expert Evidence: High Court, Chancery Division CPR
B. Evaluation of Expert Evidence
1. High Court, Chancery Division, CPR
2. Assessors
3. Assessors CPR 35.15 and Practise Direction 7
4. Method of Intervention of the Assessor
C. Competition Appeal Tribunal
Chapter 5 English Procedure: Disclosure
A. Access to Information
1. CPR: Implementation of EC Reg. 1/2003 Article 15.1
2. CAT Rules
3. Changes: Doctrine of Effectiveness
4. Specific Changes to the CPR
a. Court Request: Ex officio and/or at Party Request
b. Scope
c. Time: Pre-action
B. Privilege: Confidentiality
1. Privilege of Confidentiality and the CPR
2. Procedural Protection of Confidential Information by the CPR
3. Procedure for the Protection of Confidential Information by the CAT
4. Application of the Doctrine of Effectiveness to the CAT Rules and CPR Treatment of Confidentiality
C. The Privilege against Self-Incrimination and Disclosure
1. English Law
2. Privilege against Self-Incrimination and Cases of the European Court of Human Rights
3. Comparison of the Scope of Orkem, Funke, Saunders and J.B. v. Switzerland
4. The Privilege against Self-Incrimination and ECJ Case Law
a. ORKEM
b. SGL Carbon (SGL) and the Privilege against Self-Incrimination
5. The ECtHR Control of the ECJ Privilege against Self-Incrimination in Enforcement of EC Articles 81 and 82 by Member States
6. Privilege against Self-Incrimination: S 15 (3) Reg. 1/2003
Chapter 6 English Procedure: Costs
A. Costs and the CPR
B. Effect of Costs in English Enforcement Proceedings of EC Articles 81 and 82
C. Nature of the Costs Problem in English Litigation
D. ECJ Case Law: Possible Solutions to the Problem of English Costs in Conformity with EC Case Law
1. Principle of Effectiveness and the National Rules on Costs
2. Compliance of Costs Rules with Respect to EC Competition Law
a. Fixed Maximum and Minimum Legal Costs
3. Compliance with EC Competition Law and the Principle of Freedom of Services
a. Fixed Maximum and Minimum Costs in Out-of-Court Legal Services
b. Effect of Arduino, Macrino and Cipolla on a National Rule Fixing Legal Fees
c. Fixed Minimum Fees
d. Fixed Maximum Fees
E. Consequences of Arduino and Wouters Concerning Regulation of Legal Services in England
F. Application of the EC Doctrine of Effectiveness to Methods of Cost Control in the CPR
Chapter 7 English Interim Injunctions and Representative Actions
A. Interim Orders Pursuant to the CPR
1. Doctrine of Effectiveness
B. Representative Actions
Chapter 8 French Civil Procedure
A. Case Allocations and Representative Actions
1. The Specialisation of the French Courts
2. Locus standi: Representative Actions
Chapter 9 French Procedure: Proof and Evidence
A. Burden of Proof
1. Burden of Proof of an Infringement of Article 81(1) or of Article 82 of the Treaty
2. Burden of Proof of Causation and Damage
B. Standard of Proof
C. Access to Evidence and Information
1. The Investigation Powers of the French Judge and the Role of Parties
2. Investigations before the Commencement of Legal Proceedings
3. The Investigations during the Proceedings
4. Inquiry Measures
5. The Relationships of the French Judge with the Commission and Competition Council
a. The Transmission of Information and Documents to the Courts
b. The Opinions of the Commission and the Competition Council
c. The Intervention of the Commission and the Competition Council
Chapter 10 French Procedure: Forms of Compensation and Costs of Actions
A. Forms of Compensation
1. The Damages Awarded by the courts
2. Nullity
3. Injunctions and Interim Measures (Measures of Conservation)
B. Costs of Actions
1. Taxable Charges
2. Charges Not Included in the Taxable Charges
3. Legal Aid
4. Contingency Fees: Prohibition of 'Quota litis' Agreements
Chapter 11 German Procedure: Representative Actions and Binding Effect of Cartel Authorities Decisions
A. Private Enforcement of Competition Rules from a German Perspective
1. Obstacles to Private Enforcement Prior to the 7th GWB-Amendment
2. Changes Implemented by the 7th GWB-Amendment
a. Competition Cases' Allocation
b. Locus standi
3. Representative Actions
a. Organizations for the Promotion of Commercial Interests
b. Consumer Organizations
4. The Binding Effect of a Decision Taken in Public Enforcement on the Civil Litigation Issues
a. Binding Effect of the Commission's and NCA's Decisions
b. Relevance of Competition Authorities' Decisions in Other Instances
c. Persuasive Value of Decisions Rendered by the Competition Authorities
Appendix: Competence Lose Allocation in Germany
Chapter 12 German Procedure: Evidence and Burden of Proof
A. Difficulties Entailed by the Non-inquisitorial Nature of Civil Litigation
B. The Concept of 'Exploratory Evidence'
C. Access to Evidence in the Sphere of the Opposing Party
1. Disclosure Under § § 142, 144 Code of Civil Procedure (Zivilprozeßordnung - ZPO)
2. Disclosure of Information under § § 242, 259 BGB
3. Hearing of the Opposing Party
4. Privilege against Self-Incrimination
5. Witnesses
6. Expert Evidence
7. The Handling of Sensitive Data
D. The Commission and the Federal Cartel Authority Acting as Amicus curiae
1. Principles
2. The Doctrine of Party Presentation
3. Confidential Information and Business Secrets
a. Exclusion of the Public
b. Excluding Parties from Evidence
4. Effect of Legal Opinions Rendered by the Commission or NCA
5. Preliminary Conclusion Regarding the Access to Evidence
E. Burden of Proof
1. Article 2 Reg. (EC) 1/2003
2. Unresolved Questions
a. De minimis Criteria in Civil Proceedings
b. Line of Demarcation between Articles 81(1) and 81(3) EC
F. Standard of Proof and Legal Presumptions
1. Legal Presumptions under the German Act against Restraints on Competition
2. Alleviating the Standard of Proof
a. Proving the Infringement
b. Proof of Inapplicability under Article 81(3) EC
G. Calculation of Losses Sustained
H. Evidence and the Doctrine of Effectiveness
Chapter 13 German Procedure Costs and Limitation Periods
A. Costs
B. Limitation Periods
Chapter 14 Conclusion
A. National Principles
1. English CPR and CAT Rules Relevant for the Application of the Doctrine of Effectiveness
2. French Principles Relevant for the Application of the Doctrine of Effectiveness
3. German Principles Relevant for the Application of the Doctrine of Effectiveness
B. English CPR and CAT Rules: Categories of Changes Required by the Application of the Doctrine of Effectiveness
C. French Civil Procedure: Categories of Changes Required by the Application of the Doctrine of Effectiveness
D. German Civil Procedure: Categories of Changes by the Application of the Doctrine of Effectiveness
Index
Back Cover

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