Venue: room M3.06. Amsterdam Business School, Faculty of Economics and Business. Title "Private enforcement of competition law: collective redress across the EU and the UK Consumer Rights Act". Lunch will be provided from 11:45 on.
This presentation focuses on key aspects of an AHRC-funded project on Comparative private enforcement and collective redress in the EU. (1)
The project considered the application of competition law in the national courts of the European Union Member States. This was an empirical project with rapporteurs for 27 Member States entrusted with the task of identifying competition case-law judgments in their national courts in the period between 1 May 1999 and 1 May 2012. The presentation will briefly outline the research methodology and outcomes in relation to the case-law data. Each national report also outlined key aspects of the wider legal context within which private enforcement of competition law operates in that jurisdiction. The general hypothesis was that private enforcement practice across the legal systems of the EU Member States may at least partly be explained by the existence or availability of particular institutions, mechanisms and cultural factors. The picture presented by the data together with the national reports is one of evolving national stories and contexts - which appear to be affected to a greater or lesser extent in different Member States by a combination of national cultures, competition law architecture and civil procedural rules. It is not claimed that there are any direct causal relationships between the insights provided by the empirical data and the national narratives on institutional mechanisms, but the analysis indicates ways and contexts in which competition litigation cultures may develop in the wake of specific institutional mechanisms. It is inevitable that patterns of competition litigation will continue to vary considerably across the EU for the foreseeable future, reflecting, to a great extent, the variable landscape of legal and institutional provision for private enforcement in the EU Member States.
In the second part of the presentation I will discuss the key aspects of the enhanced collective redress mechanisms introduced recently in relation to competition law infringements in the UK by the Consumer Rights Act. The legislation is a particularly significant development because of the historical and contemporary focus on the ‘consumer’ at the heart of competition/antitrust law and because the reforms also reflect more recent debates generally in legal practice about ‘access to justice’. The presentation will reflect on the limited provision in the UK on collective redress in relation to competition law infringements prior to the Consumer Rights Act, and then focus on the Act’s provisions (and associated Tribunal rules) in relation to opt-in/opt-out collective proceedings and settlements. The Tribunal rules on certification will be considered, noting the potential difficulties in their practical application, before further analysis of two key problematic aspects of the proposed opt-out collective redress scheme, which may limit its effectiveness and uptake. The first concerns the appointment of the class/settlement representative and the second concerns the potential funding arrangements in relation to opt-out collective proceedings. It is as yet unclear whether the combination of these two aspects may dis-incentivise and unnecessarily limit the effectiveness of the new opt-out provisions.
(1) See www.clcpecreu.co.uk. For a full account of the project and outcomes, see B Rodger (ed), Comparative Private Enforcement and Collective Redress Across the EU (Kluwer Law Publishing, 2014).