Among the main areas of Community law, competition law is not one to which citizens seem to have the greatest access.

It is a fact that the purpose of the policy that underpins it is often misunderstood. The inclusion of free and fair competition as one of the Union’s objectives, seen as ‘ultraliberal’, was one of the many causes of rejection of the European Constitutional Treaty by French voters in 2005. The reference to this objective was deleted from the Lisbon Treaty, for fear of it being misunderstood again.Yet, as the spokesman for Commissioner Neelie Kroes remarked recently, “competition policy consists primarily in enforcing the rules to ensure that companies compete with each other to sell their products, innovate and offer attractive prices to consumers”.

Community competition law has always attached importance to citizen-consumers. First, in terms of objectives, the aim of competition law “is not consumer protection [and it] is not the auxiliary of consumer law ⁽¹⁾ ”. However, over and above protection of the working of the market itself, the protection of economic operators – including consumers – is a foundation of competition law. Second, in terms of methods, in assessing anti-competitive practices, the test of injury to consumers is essential. What is more, “progress for the Community as a whole, and thus for consumers, can justify an individual exemption ⁽²⁾ [and] the definition of the relevant market is based on consumers ” ⁽³⁾.

But beyond this objective and these methods arises the question of the type of practical actions to be implemented to guarantee effective access by citizen-consumers to competition law. This concern has emerged only recently. Indeed, unlike the United States, the drive to combat anti-competitive practices was originally placed primarily in the hands of the competition authorities (public action) empowered to impose administrative sanctions (particularly fines). It was the judgement handed down by the European Court of Justice in the Courage and Crehan case (C-453/99), on 20 September 2001, that marked a turning point by expressly recognising that the victims of infringements had grounds to seek redress for the damage they had suffered (civil action).

The modernisation of Community competition law by Regulation 1/2003 also constituted an important step since it extended the role of national judges, ie those closest to citizen-consumers. According to this regulation, “national courts have an essential part to play in applying Community competition rules. When deciding disputes between private individuals, they protect the subjective rights under Community law, for example by awarding damages to the victims of infringements”.

THE WHITE PAPER’S PROMISES

From the start of her term of office, in her speech to the European Parliament in November 2004, Commissioner Kroes pointed out the important role consumers should play in competition law. That is why the most recent sector investigations conducted by the Commission’s Directorate-General for Competition have focused on areas of activity that directly concern consumers: air transport, mobile phones, energy, retail banking and pharmaceuticals. This makes competition policy and law more tangible. To supplement this approach, DG Competition created last June, in its Policy and Strategy Directorate, a special unit responsible for relations with consumers (Unit A6). It also made a ‘user’s guide’ widely available last spring.

To facilitate private actions, which are currently few and far between, the Commission published a white paper last April on damages actions for breach of Community anti-trust rules. The green paper that preceded it adopted an activist approach, noting that “by being able effectively to bring a damages claim, individual firms or consumers in Europe are brought closer to competition rules and will be more actively involved in enforcement of the rules”. This white paper proposes a new model aimed at eliminating the obstacles capable of deterring consumers and companies from seeking redress. One of its key proposals calls for the creation of collective redress mechanisms, particularly through representatives, which would allow groups of victims, all having suffered individual injury but in a limited amount, to go to court.

Another essential recommendation concerns disclosure of evidence. The Commission recommends, as is already the case for its decisions, that the final decisions of the competition authorities of the member states be considered sufficient proof of the existence of the infringements challenged in the actions for redress initiated subsequently. Thus, armed with a decision by an authority, complainants would have a document that could be used immediately to assert their rights. In such cases, the public action places itself at the service of the private action, proof that citizens’ access to competition law could truly renew this field of law.

(*) The authors are a lawyer and a trainee, respectively, at Gide Loyrette Nouel in Brussels

The aim of competition law “is not consumer protection [and it] is not the auxiliary of consumer law” - The modernisation of Community competition law also constituted an important step since it extended the role of national judges
⁽¹⁾ Decision of the Commission pursuant to Article 81(3) EC Treaty to exempt notified agreements between companies from the prohibition of Art. 81(1) EC Treaty on the basis of an individual assessment
⁽²⁾ V. Lasserre-Kiesow, La promotion des sanctions civiles en droit des pratiques anticoncurrentielles, Dalloz, 6 September 2007.,
⁽³⁾ see note 1.