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Competition Law Q6 Consumer interest in competition law 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 182 CONSUMER POLICY REVIEW SEP/OCT 2006 • VOLUME 16 • NUMBER 5 CONSUMER INTEREST IN COMPETITION LAW CASES 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.
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