To date, and despite pressures toward convergence, the United States and the European Union have taken different paths with respect to the enforcement of antitrust laws by private parties and, therefore, differ dramatically in levels of functional standing. U.S. law is more encouraging to private enforcement than E.U. law but has a narrower view of whom those private parties are permitted to be. In the European Union, the eligible parties are broad but the motivation of any single party to bring an action is quite low. In the United States, the substantive law and much of the procedural law flow from federal courts' interpretations of the Sherman Act and the Clayton Act. Because this is all federal law, general statements are more appropriate. In the European Union, the substantive antitrust provisions are those found in the Treaty on the Functioning of the European Union. Procedural requirements as they pertain to private actions are determined by national courts.8 Consequently, any general statements about the eligibility or standing are more problematic. Indeed, one of the issues faced by the European Union is achieving some uniformity with respect to eligibility issues. Nevertheless, as a general matter, there seems to be little question that Europe as a whole is struggling with the eligibility question and whether private enforcement is destined to be a significant factor. Official statements favor greater private enforcement, but the actual incentives for bringing private actions are not compelling. In fact, efforts in the European Union to make compensation broadly available seem destined to have little impact. Part II sets out the basic legal analysis of "functional eligibility" in the United States and the European Union. Private enforcement, however, is only relevant with respect to specific goals. In antitrust, those goals are compensation and deterrence. Thus the question is: How do two different approaches to functional standing advance two goals that themselves are not always consistent? The purpose of Part I is to describe the two models sufficiently to then apply them to different standard antitrust violations. It concludes the E.U. system, as currently constructed and likely to exist in the future, does not have and will not have a private regime of enforcement that advances either goal. In Part III, this is illustrated in the context of specific economic models. Two important qualifying notes are in order. First, this offering is about private enforcement only. In both the United States and the European Union, the overall impact of enforcement efforts will be determined by both public and private actions. Weak private enforcement can be offset by strong public enforcement and this applies to both the compensation and deterrence goals." Second, the discussion also does not consider the varying impacts of different policies in individual E.U. member states. The impact of efforts to expand functional standing in any member state will be affected by the availability of collective redress in that state and punitive damages.
Jeffrey L. Harrison, The Law and Economics of (Functional) Antitrust Standing in the United States and the European Union, 26 Fla. J. Int'l L. 271 (2014)