Is the European Commission’s Consultation on Collective Redress Trying to Fix an Antitrust Litigation Landscape That is Not Broken?

Paul Chaplin, Nicholas Heaton, Apr 29, 2011

In February 2011 the European Commission launched a public consultation on whether new EU-wide forms of collective redress should be introduced in order to strengthen the enforcement of European law. The consultation paper, entitled Towards a Coherent European Approach to Collective Redress (the “Consultation Paper”), is the result of recent collaboration between the Directorate-Generals for Competition (“DG COMP”), Health and Consumer Affairs (“DG SANCO”), and Justice (“DG Justice”). Rather than pushing through an unpopular measure without consultation, the public consultation represents the Commission’s latest attempt to gauge and garner support for this type of potentially wide-ranging reform. However, little indication is given as to whether the Commission has a particular model of collective redress in mind and the consultation itself is very open-ended. Given that both DG COMP and DG SANCO have contributed to the Consultation Paper, having previously put forward their own very different plans for a collective redress mechanism, it is likely that any proposals developed by the Commission will have relevance to both consumers and business.

The Consultation Paper has raised significant interest with stakeholders including claimant law firms, consumer groups, and businesses that may be subject to competition investigations and possible follow-on competition damages claims before national courts in Europe. This is because EU-wide reform to collective redress could have a big impact on the kind and value of private antitrust damages claims brought in Europe. However, the very different stances advocated by the relevant stakeholders-both supporters and opponents of collective redress-whose interests diverge significantly, make it unclear whether such a consultation will really assist the Commission in coming to a conclusion.