Description
Book SynopsisExploring obstacles to effective compensation of victims of competition infringements, this book categorises the types of victims harmed and the types of losses arisen from these infringements to identify to what extent there is a need for enhanced private competition law enforcement in the European Union (EU) and the best way to address this need. It shows that there is a genuine need for facilitating consumer damages actions and that consumer claims are the only claims that can be pursued in a collective redress action. In order to compensate consumers and overcome barriers to effective enforcement of their right to damages, it structures a collective redress action for consumers by considering the following elements: i. the formation of the group, ii. the type of representative party iii. funding mechanisms and iv. calculation and distribution of damages.
Table of ContentsTable of Contents
Preface
Acknowledgements
List of Abbreviations
Table of Cases
Table of Legislation
CHAPTER 1
INTRODUCTION
I. Background *
1. Paucity of Actions for Damages for Competition Infringements
2. The Need for Collective Redress in Competition Law Enforcement
3. Reflection on the Term ‘Collective Redress’
II. Issues relating to the Design of a Collective Redress Action
1. Judicial v Non-Judicial Means of Collective Redress
2. Elements of Collective Redress Actions
III. Methodology
IV. Structure
CHAPTER 2
THE NOTION OF AND NEED FOR COLLECTIVE REDRESS ACTIONS
I. Introduction
II. The Concept and Function of Collective Redress Procedures
1. A Short Summary of Evolution and Policy Rationale
2. The Purpose of the Procedure
III. Setting the Scene for EU Collective Redress Actions
1. The Recognition and Exercise of the Right to Damages
2. The Need for Collective Redress Actions for Consumers
2.1. Barriers to the Effective Compensation of Consumers
2.2. Inadequacy of Existing Aggregation Mechanisms
3. The Role of Collective Redress Actions
IV. Concluding Remarks
CHAPTER 3
COMMISSION INITIATIVES ON COLLECTIVE REDRESS ACTIONS
I. Introduction
II. Two Distinct Initiatives in Competition and Consumer Law
1. Commission Efforts in Competition Law
1.1. The Green Paper
1.2. The White Paper
1.3. Withdrawn Directive in 2009 *
2. Commission Efforts in Consumer Law
III. Combining the Two: A Horizontal Approach toward Collective Redress Actions
1. Overview of the Reasons leading to Horizontal Approach
2. The Proposals Under the Horizontal Approach
2.1. Public Consultation
2.2. Recommendation and Communication
3. Impact of the Horizontal Approach on Collective Redress
IV. Distinctive Approach toward Collective Redress Actions
1. Potential Shortcomings of the Horizontal Approach
2. The Case for a Distinctive Competition Law Approach
V. Concluding Remarks
CHAPTER 4
OBJECTIVES OF COLLECTIVE REDRESS ACTIONS IN EU COMPETITION ENFORCEMENT
I. Introduction
II. Determining the Objectives and Their Significance
III. Objectives of Actions for Damages
1. The Approach of the EU Courts
2. The Approach of the Commission
IV. Compensation and Deterrence Objectives for Collective Redress Actions
1. The Unique Competition Law Enforcement Goal and its Implications for Collective Redress Actions
2. Objectives of Collective Redress Actions
2.1. The Compensatory Objective
2.2. The Deterrence Objective
3. Collective Redress Actions for Consumers: Do the Objectives Pursued Differ?
V. Concluding Remarks
CHAPTER 5
CONSUMER DAMAGES CLAIMS IN EU COMPETITION CASES
I. Introduction
II. Damages Caused by Competition Infringements
1. The Types of Competition Infringements
2. The Types of Harm Resulting from Competition Infringements
3. Potential Damages of Competition Infringements
III. The Overcharge as a Measure of Damages in Consumer Cases *
1. Overcharge in Collusion Cases
1.1. Practices Giving Rise to Overcharge
1.2. Case Studies
1.2.1. Case Study 1
1.2.2. Case Study 2
2. Overcharge in Abuse of Dominance Cases
2.1. Practices Giving Rise to Overcharge
2.2. Case Studies
2.2.1. Case Study 1
2.2.2. Case Study 2
IV. The Ways in Which Consumers are Harmed
1. Direct Consumers
2. Indirect Consumers
3. Deadweight Loss Consumers
4. Umbrella Consumers
V. Concluding Remarks
CHAPTER 6
GROUPING COLLECTIVE CLAIMS: OPT-IN v OPT-OUT
I. Introduction
II. Establishing the Group Membership
1. Opt-In Actions
2. Mandatory Actions
3. Opt-Out Actions
3.1. The Functioning of Opt-Out Actions
3.2. The Role of Notice
3.3. The Compensation Objective and Opt-Out Actions
3.3.1. Participation Rates
3.3.2. Take-Up Rates
4. The Proposed Approach
4.1. Reflections
4.2. Assessing the Criticisms
4.2.1. Overview of the Criticisms
4.2.2. The Merits of the Criticisms
III. Grouping the Claims
1. The Ways in Which the Group is Defined
2. Two Necessary Elements of Group Definition
3. Towards an Adequate Group Definition: What Matters?
3.1. The Type of Loss
3.2. The Type of Plaintiff
4. The Proposed Approach: Grouping Consumer Claims
IV. Concluding Remarks
CHAPTER 7
DESIGNING COLLECTIVE REDRESS ACTIONS: REPRESENTATIVE PARTY AND FUNDING RULES
I. Introduction
II. Determining the Representative Party
1. Lead Plaintiff
2. Ideological Claimant
III. Funding
1. Liability for Costs
2. Possible Options for Funding
3. Contingency Fees as One of the Options
4. The Proposed Approach
IV. Concluding Remarks
CHAPTER 8
CALCULATION AND DISTRIBUTION OF DAMAGES IN COLLECTIVE ACTIONS FOR CONSUMERS
I. Introduction
II. Possible Ways of Awarding Damages to a Group
1. Aggregate versus Individual Damages Assessment
2. Aggregate Damages Assessment and the Compensation Objective
III. Calculation of Damages to Consumers
IV. Allocation of Damages
1. Distribution of Damages to Group Members
2. Possible Alternatives for Undistributed Damages and the Proposed Approach
V. Concluding Remarks
CHAPTER 9
CONCLUSIONS
Bibliography
index
