Determining the applicable law for breach of competition claims in the Rome II regulation and the need for effective consumer collective redress

Lorna Gillies

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

Introduction. The last five years have witnessed a decrease in the parallelism between EU competition and consumer law policies. Recent policy and legislative developments in these politically distinct areas of EU law highlight that effective consumer protection and redress – where it does not currently exist at the level of Member States – will increasingly rely upon effective regulation and enforcement of anti-competitive business practices via EU competition law. Indeed recital 7 of Regulation EC 1/2003 requires Member States to ensure that private individuals can pursue private redress mechanisms via national courts. Consequently, the increasing prevalence of private enforcement – namely private claims for damages – as a means of regulating market activity and enhancing consumer protection between the Member States necessitates reference to Community rules on private international law. In 2002 Withers commented that the ‘cause of action [for a claim in tort for breach of competition law] is very much at an incipient stage of development'. The same could be said for analogous rules of EU private international law. Indeed, at the time Withers's valuable analysis of jurisdiction and applicable law rules alluded to the need for many other significant ‘additional procedural and evidential issues’ to be addressed to ensure the effectiveness of private enforcement as a remedy for victims of anti-competitive behaviour. Nevertheless, in accordance with Treaty obligations, the EU has continued to implement measures designed to facilitate private enforcement of competition laws. Furthermore it has also continued to implement measures pursuant to judicial cooperation in civil and commercial matters. The most recent development connecting both measures is Regulation EC 864/2007 on the Law Applicable to Non-Contractual Obligations (hereafter the Rome II Regulation), which provides rules to determine the applicable law of a non-contractual obligation. A key development offered by this new, communitarised private international law instrument is contained in Article 6. Article 6 of the Rome II Regulation determines the applicable law that will apply when private, final consumers or their representatives claim damages against businesses for anti-competitive practices or acts which have restricted competition, thereby impeding consumer choice.

LanguageEnglish
Title of host publicationEuropean Consumer Protection
Subtitle of host publicationTheory and Practice
EditorsJames Devenney, Mel Kenny
Place of PublicationCambridge
Pages257-281
Number of pages25
DOIs
Publication statusPublished - 1 May 2012
Externally publishedYes

Fingerprint

regulation
Law
private law
EU
international law
obligation
consumer protection
European Community
damages
European Law
treaty
remedies
jurisdiction
cause
market
community

Keywords

  • competition law
  • private international law

Cite this

Gillies, L. (2012). Determining the applicable law for breach of competition claims in the Rome II regulation and the need for effective consumer collective redress. In J. Devenney, & M. Kenny (Eds.), European Consumer Protection: Theory and Practice (pp. 257-281). Cambridge. https://doi.org/10.1017/CBO9781139003452.017
Gillies, Lorna. / Determining the applicable law for breach of competition claims in the Rome II regulation and the need for effective consumer collective redress. European Consumer Protection: Theory and Practice. editor / James Devenney ; Mel Kenny. Cambridge, 2012. pp. 257-281
@inbook{fec3085f954c4fd78a1186225b8b95cc,
title = "Determining the applicable law for breach of competition claims in the Rome II regulation and the need for effective consumer collective redress",
abstract = "Introduction. The last five years have witnessed a decrease in the parallelism between EU competition and consumer law policies. Recent policy and legislative developments in these politically distinct areas of EU law highlight that effective consumer protection and redress – where it does not currently exist at the level of Member States – will increasingly rely upon effective regulation and enforcement of anti-competitive business practices via EU competition law. Indeed recital 7 of Regulation EC 1/2003 requires Member States to ensure that private individuals can pursue private redress mechanisms via national courts. Consequently, the increasing prevalence of private enforcement – namely private claims for damages – as a means of regulating market activity and enhancing consumer protection between the Member States necessitates reference to Community rules on private international law. In 2002 Withers commented that the ‘cause of action [for a claim in tort for breach of competition law] is very much at an incipient stage of development'. The same could be said for analogous rules of EU private international law. Indeed, at the time Withers's valuable analysis of jurisdiction and applicable law rules alluded to the need for many other significant ‘additional procedural and evidential issues’ to be addressed to ensure the effectiveness of private enforcement as a remedy for victims of anti-competitive behaviour. Nevertheless, in accordance with Treaty obligations, the EU has continued to implement measures designed to facilitate private enforcement of competition laws. Furthermore it has also continued to implement measures pursuant to judicial cooperation in civil and commercial matters. The most recent development connecting both measures is Regulation EC 864/2007 on the Law Applicable to Non-Contractual Obligations (hereafter the Rome II Regulation), which provides rules to determine the applicable law of a non-contractual obligation. A key development offered by this new, communitarised private international law instrument is contained in Article 6. Article 6 of the Rome II Regulation determines the applicable law that will apply when private, final consumers or their representatives claim damages against businesses for anti-competitive practices or acts which have restricted competition, thereby impeding consumer choice.",
keywords = "competition law, private international law",
author = "Lorna Gillies",
year = "2012",
month = "5",
day = "1",
doi = "10.1017/CBO9781139003452.017",
language = "English",
isbn = "9781139003452",
pages = "257--281",
editor = "James Devenney and Mel Kenny",
booktitle = "European Consumer Protection",

}

Determining the applicable law for breach of competition claims in the Rome II regulation and the need for effective consumer collective redress. / Gillies, Lorna.

European Consumer Protection: Theory and Practice. ed. / James Devenney; Mel Kenny. Cambridge, 2012. p. 257-281.

Research output: Chapter in Book/Report/Conference proceedingChapter

TY - CHAP

T1 - Determining the applicable law for breach of competition claims in the Rome II regulation and the need for effective consumer collective redress

AU - Gillies, Lorna

PY - 2012/5/1

Y1 - 2012/5/1

N2 - Introduction. The last five years have witnessed a decrease in the parallelism between EU competition and consumer law policies. Recent policy and legislative developments in these politically distinct areas of EU law highlight that effective consumer protection and redress – where it does not currently exist at the level of Member States – will increasingly rely upon effective regulation and enforcement of anti-competitive business practices via EU competition law. Indeed recital 7 of Regulation EC 1/2003 requires Member States to ensure that private individuals can pursue private redress mechanisms via national courts. Consequently, the increasing prevalence of private enforcement – namely private claims for damages – as a means of regulating market activity and enhancing consumer protection between the Member States necessitates reference to Community rules on private international law. In 2002 Withers commented that the ‘cause of action [for a claim in tort for breach of competition law] is very much at an incipient stage of development'. The same could be said for analogous rules of EU private international law. Indeed, at the time Withers's valuable analysis of jurisdiction and applicable law rules alluded to the need for many other significant ‘additional procedural and evidential issues’ to be addressed to ensure the effectiveness of private enforcement as a remedy for victims of anti-competitive behaviour. Nevertheless, in accordance with Treaty obligations, the EU has continued to implement measures designed to facilitate private enforcement of competition laws. Furthermore it has also continued to implement measures pursuant to judicial cooperation in civil and commercial matters. The most recent development connecting both measures is Regulation EC 864/2007 on the Law Applicable to Non-Contractual Obligations (hereafter the Rome II Regulation), which provides rules to determine the applicable law of a non-contractual obligation. A key development offered by this new, communitarised private international law instrument is contained in Article 6. Article 6 of the Rome II Regulation determines the applicable law that will apply when private, final consumers or their representatives claim damages against businesses for anti-competitive practices or acts which have restricted competition, thereby impeding consumer choice.

AB - Introduction. The last five years have witnessed a decrease in the parallelism between EU competition and consumer law policies. Recent policy and legislative developments in these politically distinct areas of EU law highlight that effective consumer protection and redress – where it does not currently exist at the level of Member States – will increasingly rely upon effective regulation and enforcement of anti-competitive business practices via EU competition law. Indeed recital 7 of Regulation EC 1/2003 requires Member States to ensure that private individuals can pursue private redress mechanisms via national courts. Consequently, the increasing prevalence of private enforcement – namely private claims for damages – as a means of regulating market activity and enhancing consumer protection between the Member States necessitates reference to Community rules on private international law. In 2002 Withers commented that the ‘cause of action [for a claim in tort for breach of competition law] is very much at an incipient stage of development'. The same could be said for analogous rules of EU private international law. Indeed, at the time Withers's valuable analysis of jurisdiction and applicable law rules alluded to the need for many other significant ‘additional procedural and evidential issues’ to be addressed to ensure the effectiveness of private enforcement as a remedy for victims of anti-competitive behaviour. Nevertheless, in accordance with Treaty obligations, the EU has continued to implement measures designed to facilitate private enforcement of competition laws. Furthermore it has also continued to implement measures pursuant to judicial cooperation in civil and commercial matters. The most recent development connecting both measures is Regulation EC 864/2007 on the Law Applicable to Non-Contractual Obligations (hereafter the Rome II Regulation), which provides rules to determine the applicable law of a non-contractual obligation. A key development offered by this new, communitarised private international law instrument is contained in Article 6. Article 6 of the Rome II Regulation determines the applicable law that will apply when private, final consumers or their representatives claim damages against businesses for anti-competitive practices or acts which have restricted competition, thereby impeding consumer choice.

KW - competition law

KW - private international law

UR - http://www.scopus.com/inward/record.url?scp=84925615204&partnerID=8YFLogxK

U2 - 10.1017/CBO9781139003452.017

DO - 10.1017/CBO9781139003452.017

M3 - Chapter

SN - 9781139003452

SP - 257

EP - 281

BT - European Consumer Protection

A2 - Devenney, James

A2 - Kenny, Mel

CY - Cambridge

ER -