Saturday, May 7, 2011
Collective Redress, More Consultations at the European Level But are We Getting Closer to Consensus?
Posted by D. Daniel Sokol
Ann Marie Galvin (3M Europe) asks Collective Redress, More Consultations at the European Level But are We Getting Closer to Consensus?
ABSTRACT: Towards a Coherent European Approach to Collective Redress is the latest consultation by the European Commission ("Commission") on collective redress and follows a 2005 Green Paper and a 2008 White Paper on antitrust damages actions; in 2008 there was also a Green Paper on consumer collective redress. The earlier consultations provoked much debate and disagreement among stakeholders with many complaints about the lack of coordination within the Commission itself. There was no decisive action taken in 2008 and so, after more than 6 years, we are still in a consultation.
So what is new this time? There are three new aspects to note in the current consultation: (i) This is a horizontal public consultation involving three Commission Directorates-Justice, Competition, and Consumer-which addresses, to some extent, past criticisms; (ii) There is a focus on the use of private enforcement to achieve public enforcement of EU law. This has been widely criticized as an inappropriate policy direction. The enforcement of EU law should remain the responsibility of EU and national bodies and should never be the role of private legal actions; and (iii) Looking at injunctive relief in the context of collective procedures. This already exists in certain areas but has never been mentioned in previous consultations and studies-a point that is relevant to note as the current paper frequently refers to earlier studies as justification for action at EU level.