German Legal Culture and the Globalization of Competition Law: A Historical Perspective on the Expansion of Private Antitrust Enforcement

One trend developing in international competition regulation is the expansion of private antitrust litigation as an enforcement mechanism. This article examines Germany's response to that trend, investigating the extent to which it has roots in the country's legal and economic history. It begins by tracing the development of German competition law post-World War II - focusing in particular on the patterns of pressure and resistance within the transatlantic relationship - and identifies the emergence of an indigenous regulatory enforcement philosophy. It then turns to two recent developments that indicate the expansion of private enforcement in ways relevant to Germany's domestic regulatory scheme. The first is regional: a new European Council Regulation modernizing competition law enforcement. The second is transatlantic: a series of cases that threatened to expand further the jurisdiction of U.S. courts over extraterritorial anti-competitive conduct. In both contexts, Germany strongly protested the potential undermining of its local competition enforcement philosophy. The article examines the links between that resistance and the particular historical context of German competition law. It thereby suggests more generally that the search for transnational regulatory systems capable of addressing global conduct must continue to account for the diversity of historical and cultural contexts that underpin various national regimes.