Consumer interest in cases

Competition authorities often state that effi- Michael Hutchings OBE cient competition law should promote consumer welfare. Nevertheless, UK and EC and Peter Whelan reflect competition legislation and case law pay little regard to consumers and the harm they may on consideration and suffer from so-called ‘anticompetitive’ conduct. The current state of both the consid- representation of eration and the representation of the consumer interest in competition law must be ‘consumer interest’ in improved if the promotion of consumer welfare both within the UK and at EC level is competition law cases to be a reality.

ompetition between undertakings that vie for Such are the benefits that competition law can the custom of consumers is widely perceived ensure for consumers that an efficient competition Cas a good thing in terms of consumer welfare. law regime is generally considered to be a neces- When rational consumers with limited resources at sity if one wishes to maximise consumer welfare: their disposal are presented with choices in the without it a healthy, competition-driven economy market they will, by their very nature, attempt to capable of delivering tangible gains to consumers consume those products from which they can will almost always be undermined by the activities derive maximum satisfaction, or, in economic of cartelists and dominant, abusive companies. terms, maximum ‘utility’. If this desire to choose According to Philip Collins, the current Chairman wisely is coupled with an ability to switch between of the OFT: competing products (or, if need be, competing ‘Today, all around the world, policy makers recog- retailers), consumers can, by the power of their feet nise that a system of competition law is essential to so-to-speak, force competitors to compete vigor- the successful operation of a market economy and ously in the market and thus compel them to the protection of consumers.’1 deliver products which are the most attractive to Competition authorities often state that compe- them in terms of price, quality, range, frequency tition policy and any analysis that is undertaken and innovation, among other things. In short, under the competition law rules should promote a undistorted competition on a given market helps to consumer welfare standard: deliver the best results to consumers. ‘Consumer welfare is now well established as the The key word is ‘undistorted’. If the competitive standard the [European] Commission applies when process is distorted, restricted or indeed completely assessing mergers and infringements of the Treaty destroyed, whether by anticompetitive agreements rules on cartels and monopolies. Our aim is simple: or unilateral action by the dominant firm in the to protect competition in the market as a means of market, then, so theory runs, consumers will not enhancing consumer welfare and ensuring an effi- be able to force competitors to offer them the best cient allocation of resources.’2 product possible. This is where competition law Words such as the above establish the maximi- has a role to play: it seeks to preserve the compet- sation of consumer welfare as one of the most itive process so that consumers will receive the important objectives in both the UK and European benefits they are entitled to. Community (EC) competition law regimes, at least Industrial economists, competition lawyers and in a theoretical sense.3 Given the abundance of policy makers regularly attempt to underline the such statements in both the UK and at EC level, it benefits that an efficient competition law regime would not be an exaggeration to state that the can secure for consumers. Indeed, it is increasingly position of the consumer in competition law has difficult to find a recent speech or policy statement never been stronger. Accordingly, the significance that emanates from either the Office of Fair Trading of the consumer within these competition law (OFT) in the UK or from DG Competition (DG regimes has been constantly emphasised in the Comp) at European Commission level that does not competition law debates that are currently taking mention the important role that competition law place within the European competition law can play for the improvement of consumer welfare community, viz. private enforcement of competi- within a particular jurisdiction or that does not tion law through the national courts of the Member highlight the need for a pro-consumer competition States, and the reform of Article 82. These debates policy that ensures lower prices, better quality are intended to advance the position of consumers goods and services, or improved access to innova- by improving their ability to sue for compensation tive and quality products for consumers. in national courts (private enforcement) and by

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making consumer welfare the focus of competition The first option would allow the authorities to analysis in abuse of dominance cases (reform of condemn conduct as anticompetitive without Article 82). Consumer organisations have in having to consider how the conduct directly affects general acknowledged the significance of these consumers in the market. It would allow, for exam- debates for the promotion of consumer interests. ple, the authorities to presume that consumers It is true to say that the importance of a competi- would be harmed by the conduct in question based tion law for consumers is widely understood by both on the sole fact that the competitive process has consumer organisations and the various European been (or is capable of being) distorted. The second competition authorities. It is also true that competi- option would, by contrast, require proof of actual or tion authorities, policy makers, and politicians potential harm to consumers before a finding that regularly place the consumer at the centre of the conduct in question is anticompetitive. competition policy, at least in theory. Having said In general, the approach taken by the competi- that, an extremely pertinent issue remains to be tion authorities in both the UK and at EC level is addressed: in reality how important for competition one that corresponds to the first option stated law are consumers? In answering this question one earlier. As the Court of First Instance (CFI) in must ask to what extent the interests of consumers Luxembourg has stated in the context of an abuse of are actually taken into account in competition law a dominant position: cases in practice. An important inquiry in this ‘Article 82 EC does not require it to be demon- regard concerns whether the size or the nature of strated that the conduct in question had any actual any actual or potential consumer detriment is in fact or direct effect on consumers. Competition law examined in a competition law analysis of allegedly concentrates upon protecting the market structure anticompetitive conduct. One must also ask from artificial distortions because by doing so the whether consumers have the necessary mecha- interests of the consumer in the medium to long term nisms at their disposal to make their claims heard are best protected.’7 effectively and convincingly at both national and Consequently, there is no need to prove in court European level. or in administrative proceedings direct harm to actual or potential consumers in order to find that either UK or EC competition law has been violated.8 Adequate analysis of detriment? This approach may seem odd to those who are While the regulators’ consistent mantra is the relatively unfamiliar with competition law; they centrality of consumer welfare, the reality is rather may ask themselves why, if competition law is different. For a start the legislation is rather thin in concerned with the protection of consumer this regard; both UK and EC competition legislation welfare, proof that alleged anticompetitive conduct pay little regard to the consumer and the harm is harmful to consumers is not a prerequisite to a he/she may suffer as a result of certain conduct on finding of infringement. This concern would not be the market.4 Reference to the consumer is gener- unjustified. One could argue as a result, for exam- ally reserved5 for those provisions that provide ple, that when it comes to actual cases, scant regard exemption for anticompetitive agreements that is in fact paid to consumer welfare or detriment. nonetheless produce important benefits for Herein lies a fundamental concern of many acade- consumers.6 Legislation does little then for the mics and practitioners. consumer in terms of protecting his/her welfare; At least three points can be made in relation to one must ask, however, if the treatment of the above concern. consumer welfare in competition law cases is any ● There are cases, as the study undertaken by Dr better. In other words, do the competition authori- Philip Marsden and Peter Whelan has high- ties interpret the competition law rules in a manner lighted, where consumer detriment is in fact that is favourable to consumers and to the protec- considered by the authorities. tion and maximisation of consumer welfare? ● There is an argument that the link between It should be obvious that the statement ‘competi- harm to the competitive process and harm to the tion law seeks to preserve the competitive process consumer is logical and not too presumptuous. so that consumers will receive the benefits they are ● If one were to require proof of harm to entitled to’ is capable of at least two interpretations consumers, it may not be wise to require detailed and hence at least two different approaches in terms analysis of such harm in all cases and for all of applying competition law in any given case: types of alleged anticompetitive behaviour. ● finding certain conduct on the market to be anti- We will deal with each of these arguments in turn. competitive and therefore concluding that consumers will be negatively affected if it is not Definition of consumer detriment prohibited; or Although the law allows for a competition analysis ● finding conduct on the market to be anticompeti- without proof of direct consumer detriment, noth- tive because it has negative effects on consumers. ing in law prevents the authorities from considering

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the actual or potential effect of alleged anticompet- petitive behaviour and harm to the consumer, itive conduct on consumer welfare if they so wish. however it may manifest itself. Central to their In fact, there are a number of quite important cases thesis is the argument that if, as others argue, the where consumer detriment has been considered. In link between these two concepts is indeed obvious most of these cases, however, an in depth, compre- and logical then evidence should be relatively easy hensive and well reasoned treatment of consumer to provide and is preferable to a formulaic assess- detriment has been lacking. Different aspects of ment of conduct without consideration of direct consumer detriment have been alluded to by the consumer harm.14 These arguments again present authorities in their decisions; yet, often the author- pertinent topics for debate. ities will report a somewhat simplified analysis of the impact of conduct on prices.9 While price is a Proof of harm to consumers very important aspect of consumer detriment, the Some forms of conduct, in any case, have such authorities should be encouraged to examine other clear negative effects in terms of consumer welfare issues,10 including: that a requirement to prove a direct link between ● the importance of having a competitive choice the alleged anticompetitive behaviour and harm to of products or services; the consumer would prove to be superfluous. One ● the importance of competing outlets for these obvious example is a price-fixing cartel; this type products and services; of arrangement has no tangible benefits for ● innovation and responding to consumer consumers and if effected will only have a negative demand; and impact on consumer welfare, viz. a sale price ● the impact of anti-competitive behaviour on higher than the competitive price. Another possi- citizens who may not be consumers of the prod- ble example would be a cartel agreement that uct or service in question but who may be sought to restrict output in a given market. directly affected by the behaviour (for example, a supermarket merger may not result in higher prices but it might result in reduced choice of Representing consumer interest local stores for non-car owners due to closures). Various mechanisms can be developed within a The issues raised in the final bullet point above given competition law regime that would enable are related to the idea of ‘citizen welfare’. consumers, either alone or collectively, to protect Commentators have recognised that the dividing their interests. Consumers could for example be line between ‘consumer welfare’ and ‘citizen allowed to: welfare’ is often a difficult one to establish and that ● lodge a formal complaint to the relevant the use of citizen detriment models in competition national competition authority or to the law analysis may cause more problems than it European Commission alleging that an infringe- solves. We therefore recognise that caution should ment of the competition laws has taken place; be exercised with this concept. Given the dearth of ● present their views to the competition authori- literature dealing with this topic it is obvious that it ties or to the national or European courts is an area that deserves more research and debate.11 concerning an ongoing investigation or case (for example, by commenting on a provisional Harm to the process and to the consumer Statement of Objections or through the use of It is clear from a review of cases undertaken by amicus curiae briefs15); Marsden and Whelan that the link between anti- ● intervene in an ongoing case; or competitive behaviour and consumer ● sue for compensation in the national courts welfare/detriment is often tenuous, despite the either collectively (that is, by a single claim being regulators claiming that, fundamentally, consumer made by or on behalf of a group of affected welfare is the driving force behind competition law consumers) or through a representative action enforcement. It could be argued that this may not (that is, an action brought by a representative matter because if the authorities make a finding of organisation, such as a consumer organisation). anticompetitive behaviour that harms competition The (EU) Member States have – that is to say, it harms competitors, suppliers or implemented the above mechanisms in various trading customers – rather than consumers, it is ways and to varying degrees of success.16 likely that there would be knock-on implications for consumers, for example by traders passing on Level of involvement higher prices to consumers or reducing the choice The level of involvement of European consumer of products or services.12 Marsden and Whelan,13 organisations in competition law cases, either at however, would argue that the present approach is national or EC level, has never been particularly indeed too presumptuous; for them the correct high, especially in those countries that are rela- approach involves presentation of evidence prov- tively new to the EC competition law regime. In a ing a direct causal link between alleged anticom- survey undertaken by the Competition Law Forum

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and Consumers International in May 2006,17 for prohibited under the competition law rules. The example, more than 40 per cent of the consumer OFT must publish its response within 90 days of organisations surveyed had never brought a receiving a super-complaint; possible responses complaint to their respective national competition include: dismissal of the complaint; enforcement authorities. This figure is attributable to various action under the competition or consumer laws; a factors, chief of which are a lack of resources as market study; or a market investigation reference well as a scarcity of information concerning anti- to the Competition Commission. According to most competitive behaviour. At EC level too consumer commentators this procedure has worked well in bodies are rarely involved in competition law the UK and has not led to a proliferation of vexa- procedures, except in high profile cases involving tious and/or weakly argued cases before the important and expensive consumer goods.18 competition authority. Is this low level of involvement a worry for In fact, such is its perceived success that some consumer organisations and those who advocate a argue that the same sort of system should be consumer welfare standard in competition law? It established at EC level. Phil Evans for example is undeniably true that consumer organisations are argues that if the Commission really wants to more acutely aware of the problems consumers realise its promise that competition law is about face in the market place than other organisations protecting consumers then it should create an EC and institutions, including perhaps the national super-complaint procedure; it would be a ‘relatively competition authorities in the Member States, and small administrative change’20 and, as the experi- that consequently these organisations should be ence in the UK has proven, it can lead to more encouraged to liaise with their competition author- public discussion of consumer problems as well as ities and to bring forward cases where consumers providing competition authorities with a formal are suffering because of anticompetitive behaviour. route for dealing with consumer organisations.21 In the words of one commentator: We agree that the ‘super-complaint’ is an option ‘The Commission has to recognise that it is poorly that should be encouraged at EC level. We also placed and ill-equipped to connect competition acknowledge that the lack of political will required issues to the everyday lives of consumers. In contrast, within the Commission to see this recommendation consumers’ organisations are well-placed.’19 work in practice – not to mention the limited finan- That said, all too often the ‘consumer angle’ is cial resources available to consumer bodies – has only considered by the competition authorities if it the potential to undermine such a procedure. is put to them by the parties to the merger or inquiry under consideration. It would be infinitely Private enforcement preferable for the competition authority to ‘Private enforcement’ refers to the use of the commission its own in-depth analysis of consumer national courts by victims of anticompetitive welfare/detriment issues. If such analyses were behaviour to secure either damages for their loss or commissioned by the competition authorities, an injunction to prevent the harmful conduct from concern over the lack of direct involvement of recurring. As has been stated above the European consumer bodies in the competition law regime Commission is currently attempting to encourage would probably be assuaged, at least to a degree. private damages actions in the national courts; Consumer bodies could, and should, be involved in according to the Commission, if competition law is these analyses in a consultative capacity, whenever to better reach consumers and enhance their ability need so arises. Budgetary constraints are an obvi- to protect their rights, ‘it is desirable that victims of ous obstacle to this recommendation; however, if a competition law violations are able to recover proportion of the income derived by the various damages for loss suffered’.22 We agree with this competition authorities from fines in competition assertion but recognise, as do the Commission and cases were allocated to consumer advocacy the others, that there are serious obstacles to private potential for financial limitations to undermine enforcement within each and every Member State, such projects would be significantly reduced. including those relating to access to evidence, costs and the use of collective/representative actions.23 An EC super-complaint procedure? The following points are submitted in relation to The UK Enterprise Act 2002 introduced the collective and representative actions in the ‘super-complaint’ procedure into UK law. Member States: According to Section 11 of this act, certain desig- Collective actions: The effectiveness of class nated bodies may complain to the OFT that any actions launched by individual consumers, as feature, or combination of features, of a market in opposed to a consumer organisation, is far from the for goods or services is, or certain. Such class actions are allowed for in the appears to be, significantly harming the interests of USA; however, there may be difficulties in attempt- consumers. This provision captures a very broad ing to transpose such a procedure into the national range of conduct and not just conduct that is systems of each and every Member State. It is also

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not a given that the ability to bring class actions consumer organisations that wish to utilise would overcome the most significant obstacles to these mechanisms in order to protect the inter- the private enforcement of competition law by ests of consumers. consumers (viz. difficulty of access to evidence, ● The current debate on the use of private costs, the difficulty of quantifying the loss, and enforcement in EC competition law has uncertainty as to whether the passing-on defence presented an ideal opportunity to discuss ways applies). of improving the position of consumer bodies Representative actions: It is desirable to autho- (and consumers in general) who wish to sue for rise designated consumer bodies to bring represen- damages in national courts for breach of the EC tative actions on behalf of consumers. Not only antitrust rules. would this act as a further deterrent to cartel The following points summarise our thoughts behaviour, it would also save time and money for on some of the issues raised in this article: consumers affected by anticompetitive behaviour. Concerns can however be expressed regarding Consideration of the consumer interest whether this particular procedure would establish ● Proof of direct harm to consumers (or at least a an effective means of providing genuine redress to direct causal link between the anticompetitive affected customers. In the US, for example, under behaviour and harm to consumers) should be the Hart-Scott-Rodino Act a State Attorney required in competition law cases in order for an General can sue for the aggregate overcharge infringement to be found, at least in cases where resulting from a cartel. Sometimes there are the link between harm to the competitive unclaimed funds; courts have often awarded these process and harm to the consumer may not be to consumer organisations or indeed to universities very clear. in order to establish certain consumer orientated ● Analysis of consumer detriment in competition programmes. In such a scenario, if it is not possible law cases is scant; when carried out it is gener- to effectively distribute the awarded damages to ally done in a superficial and cursory manner. those actually affected by the conduct in question, ● While price is an important aspect of any analy- these funds could be allocated to different sis of consumer detriment, authorities should be consumer organisations and thus reduce their encouraged to examine other issues, including: financial burdens and improve their ability to advo- – the importance of having a competitive cate a pro-consumer competition policy.24 choice of products or services; – the importance of competing outlets for these products and services; Summary of Observations – innovation and responding to consumer The context of the debate surrounding the demand; and consumer interest in competition law can be briefly – the impact of anti-competitive behaviour on summarised as follows: citizens who may not be consumers of the ● Competition law seeks to preserve the competi- product or service in question but who may tive process so that consumers will receive the be directly affected by the behaviour. benefits they are entitled to. ● Competition authorities often state that compe- Representation of the consumer interest tition policy and any analysis that is undertaken ● Consumer bodies are rarely heard in competi- under the competition law rules should promote tion cases, except in occasional very high profile a consumer welfare standard. cases; this situation must improve if the promo- ● Both UK and EC competition legislation tion of consumer welfare as an objective of however pay little regard to the consumer and competition law is to be a reality. the harm he/she may suffer as a result of certain ● All too often the ‘consumer angle’ is put to the conduct on the market. competition authority by the parties to the ● Currently both UK and EC competition law merger or inquiry. It would be infinitely prefer- allows the authorities to condemn conduct as able for the authority to commission its own anticompetitive without having to consider how analysis of consumer welfare/detriment issues. the conduct directly affects final consumers in ● Budgetary constraints are an obvious obstacle to the market. the above recommendation; however, we find ● Various mechanisms exist in different countries the suggestion that a proportion of the income that provide consumer organisations with the derived by the various competition authorities possibility to complain to the authorities, to from fines in competition cases be allocated to present their concerns regarding a given case, consumer advocacy to be particularly helpful. and to sue on behalf of consumers affected by ● The development of an EC super-complaint particular conduct. procedure should be encouraged. ● Budgetary constraints are a major obstacle for ● Private enforcement of competition law should

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also be encouraged; consumer groups should be ● Unclaimed funds from representative actions able to bring actions for damages on behalf of could be used to support the activities of consumers who have suffered harm because of consumer bodies and to improve competition anticompetitive conduct. advocacy to the benefit of the consumer. ● Significant barriers to private actions, for exam- ple, costs, access to evidence, the prohibition of collective/representative actions, still exist within the EU resulting in suboptimal levels of Comments from readers are welcome; e-mails: compensation (and, indeed, deterrence). [email protected] and [email protected]

REFERENCES [1] Philip Collins, Chairman of the OFT, [6] For example: Article 81(3) EC or economists sometimes use the term ‘Opening Keynote Speech to the Section 9 of the UK Competition Act ‘price’ as shorthand to cover both British Institute of International and 1998. It should be noted at this price and non-price aspects of Comparative Law’s Conference on stage that a detailed evaluation of consumer welfare. Reform of Article 82’, 24 February the treatment of consumer benefits – [10] The current Director General for 2006. Available at: www.oft.gov.uk as opposed to consumer detriment – Competition at the European (accessed 4 August 2006), p1. under Article 81(3) EC or Section 9 Commission agrees with us, at least [2] Neelie Kroes, EC Commissioner for of the Competition Act, or indeed in in theory: ‘[Consumer welfare] must Competition, ‘European Competition the assessment of mergers, for be a measurement of dynamic Policy – Delivering Better Markets example, is outside the scope of this effects. It must not simply look at and Better Choices’, Speech, 15 article. price. It must look at the overall September 2005. Available at: [7] British Airways v. Commission benefits to consumers’: Philip Lowe, http://ec.europa.eu/comm/ [2004] CMLR 1008, para. 264. See Current Competition Law, Vol. IV, competition/index_en.html also: Europemballage and (BIICL, 2005), p168. (accessed 4 August 2006), p2. Continental Can v. Commission [11] Phil Evans does however attempt to [3] It is arguable however that the [1973] ECR 215, para. 26. address some of these concerns in achievement of market integration [8] It should be remembered however his paper entitled ‘Assessing between the 25 Member States is that if an individual consumer, for Consumer Detriment’ (paper an equally important objective of EC example, attempts to sue an presented at the British Institute of competition law. undertaking for damages for injury International and Comparative Law [4] See for example: Philip Marsden that resulted from its on 6 July 2006). In the section that and Peter Whelan (2006), anticompetitive actions he/she will deals with retailing, Evans divides ‘Consumer Detriment and its still have to prove the injury alleged. the problems associated with this Application in UK and EC (Of course, a finding that the sector into four categories: ibid. Competition Law’, to be published in undertaking has engaged in illegal pp14-15. Citizen welfare problems the October edition of the European behaviour in the first place is not are considered to be more suitable Competition Law Review. Marsden predicated on a finding of harm to for political resolution than for and Whelan’s article contains the consumers, but rather harm to the determination by the results of their study on the competitive process.) competition/regulatory authorities; treatment of consumer detriment in [9] On a reading of both EC and UK by contrast, those problems that competition legislation, soft law and decisions and judgments relating to raise consumer detriment issues can cases within the UK and at EC level. the competition law rules, it is be dealt with by the appropriate Their research provided a solid base arguable that the UK Office of Fair competition law rules. Evans argues for the opinions expressed in the Trading is more concerned with that categories 1 and 2, section of this article dealing with price competition that the EC demographic/market driven the analysis of consumer detriment Commission/Courts. See for developments and the wider impact in competition cases. example: Annual Report and of such developments (for example, [5] Article 82(b) of the EC Treaty and Resource Accounts 2005-2006, the impact of shopping patterns on the Chapter II prohibition contained OFT, 11 JUly 2006, p82. Available the environment and wider societal in the UK Competition Act 1998 do at: www.oft.gov.uk (accessed 4 distribution), are more classically however provide an example of an August 2006). It must also be citizen problems and are difficult to anticompetitive abuse where the acknowledged however that the fit in to consumer detriment models. impact on the consumer is extent of the OFT’s concern with Likewise, he believes that category mentioned: ‘limiting production, price related detriment relative to 3 problems, the emergence of entry markets, or technical development non-price detriment may also be and expansion restrictions (for to the prejudice of consumers’. partly due to the fact that example, buyer power, vertical

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supply chains, planning laws), in deciding a matter before it. The timeframe within which super- although more likely to be dealt with decision whether to admit the complaints must be responded to. in ‘an economic regulation information lies with the discretion [21] See Phil Evans (2005), ‘Making environment’, are probably better of the court. Competition Real: EU Super- suited to treatment under citizen [16] A detailed analysis of how these complaints’, op. cit., p191. detriment models rather than those mechanisms are implemented [22] Commission Staff Working Paper, relating to consumer detriment. within the EU Member States is Annex to the Green Paper on Evans does however admit that outside of the scope of this short Damages Actions for Breach of category 4, the category containing article. Rather the authors will the EC Antitrust Rules, COM(2005) behavioural/market power problems reflect on a couple of pertinent 672 Final, p6. The Commission’s (for example, limited brand-to- issues concerning the representation green paper on private enforcement brand competition), appears to be of consumer interests in both UK only deals with damages actions; more directly related to consumer and EC competition law. Although however this should not be taken detriment problems. we recognise that involving to mean that the Commission is not [12] Such an approach would be consumers in the policy-making also aware of the benefits that other consistent with the first option set process is important, we do not forms of private enforcement (for out by Phil Evans in the following comment on that issue here. For example, injunctive relief) can paragraph: ‘In competition analysis, treatment of that argument see: Orit have for the protection of the end consumer, or final consumer, Dayagi-Epstein (2005), ‘Furnishing consumers’ rights. is very often one step removed from Consumers with a Voice in [23] A serious consideration of all of the competitive process. This is Competition Policy’. Available at: these issues is outside the scope of particularly true in intermediate http://www.luc.edu/law/academics/ this paper. See however: ‘The goods markets. There tend to be two special/center/antitrust/dayagi_ Competition Law Forum’s Response options in such cases; firstly, to treat epstein_consumers_voice.pdf to the European Commission's Green the customer as if they were the (accessed 4 August 2006). Paper on Damages Actions for consumer and secondly, to make [17] This survey involved questioning Breach of EC Antitrust Rules’, 21 some vague statements about consumer organisations from 14 April 2006, available at: consumer impact and largely ignore different Member States on various http://www.biicl.org/clf/research/ the final consumer in the analysis’, aspects of their competition law (accessed 4 August 2006). Phil Evans (2006), ‘Assessing regime and on the role of consumer [24] Another option would be the Consumer Detriment’, op. cit., p1. organisations within these regimes. creation of a consumer trust fund [13] And therefore at least one of the The results were presented by Peter like in . Damages from authors of this article. Whelan at the British Institute of competition law collective actions [14] See also: ‘The Reform of Article 82: International and Comparative Law, (under the Fair Practices Act 1974) Reactions to the DG-Competition London on 4 July 2006. automatically go into the fund; Discussion Paper on the Application [18] See for example the case involving various consumer organisations of Article 82 of the Treaty to motor cars (Ford v. Commission apply for funds from this trust to Exclusionary Abuses’, prepared by [1984] ECR 1129) where the develop projects. the Competition Law Forum’s Article consumer organisation BEUC Two important issues would have 82 Review Group. Available at: intervened. to be addressed if this model was http://www.biicl.org/clf/research/ [19] Phil Evans (2005), ‘Making followed: (i) who controls such a (accessed 4 August 2006), para. 5. Competition Real: EU Super- fund; and (ii) the monitoring [15] Amicus curiae is a Latin phrase, complaints’, Consumer Policy Review mechanisms that should be put in which literally translated means (2005) 15(15), 187-191, p191. place to ensure that those who ‘friend of the court’. Its use in legal [20] Involving at least: (i) the setting out apply for funds intend to use them procedure refers to the process of criteria that a consumer body as claimed and that those awarded whereby a non-party to a case must fulfil in order to be granted funds actually use them according volunteers to offer information on a super-complainant status; (ii) the to the terms under which they point of law or some other aspect of granting of super-complainant were granted. the case in order to assist the court status; and (iii) the creation of a

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