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Vice President of the European Commission responsible for Competition policy
Common standards for group claims across the EU
University of Valladolid, School of Law
Valladolid, 15 October 2010
Ladies and gentlemen:
I wish to thank the Instituto de Estudios Europeos and the Facultad de Derecho of the Universidad de Valladolid for organising this international conference on the private enforcement of competition law.
I am very happy indeed to be here and to have accepted the kind invitation of Jesús Quijano, Professor and MP, and of the Faculty Dean, Prof. Luís Velasco to participate in this conference.
It gives me a good opportunity to address a topic that is part of my future agenda – and of the agenda of the European Commission. As a matter of fact, we debated the issue at the College of Commissioners earlier this week, when we decided to launch a public consultation on collective redress.
Work on private enforcement in competition policy started over a decade ago in the EU institutions. In 2001 the European Court of Justice – ruling on an infringement of EU antitrust law – stated that the victims of competition infringements were entitled to compensation.
The reflection took a decisive turn under the tenure of Neelie Kroes, my predecessor as competition commissioner. A Green Paper titled ‘Damages actions for breach of the EC antitrust rules’1 was published in 2005. The document showed that this right was largely theoretical because most national regimes were not suited to launch antitrust infringement cases. Three years later a White Paper2 appeared with suggestions to remove those obstacles under national law.
To bring this work forward, at the beginning of the present Commission we decided to adopt a collegial approach. During the confirmation hearing at the European Parliament, I spoke of the need to reinforce the right of companies and consumers to obtain compensation for damages caused by breaches of competition law but also of the need to avoid the excesses of the US system.
Vice President Reding – Commissioner for Justice, Fundamental Rights and Citizenship – and Commissioner Dalli – in charge of Health and Consumer Policy – also made reference to the issues regarding collective redress in other policy areas in their own hearings and did so in terms that we had previously agreed.
Subsequently, collective redress was included in the new Commission’s work programme for 2010, which specifically called for the launch of a public consultation on a European approach to collective redress instruments.
Finally – as I said – earlier this week the College of Commissioners discussed a joint information note signed by my colleagues Reding and Dalli, and myself. The note calls for a coherent European framework to strengthen collective redress drawing as much as possible on the different national traditions.
The note lists five common principles which could underpin any future EU initiatives on collective redress in several policy areas. I would like to make this point clear; private enforcement of competition rules is one key element of a collective redress strategy at EU level, but not the only one. For instance, environment and consumer protection are two of the policy domains that could benefit from coordinated reforms in this area.
What are the principles included in the information note? I would like to mention five:
Finally, the note announces that we will hold a public consultation, which will be launched in November and will run until the end of February next year.
We already have an idea of the views and positions of the main stakeholders thanks to the work we have done over the past few years. Since I took over in February, I discussed collective redress and private enforcement with employers’ and consumers’ organisations, as well as legal and competition experts from Europe and the US. The issue was also included in some of my talks with national competition authorities and EU governments.
In broad terms, consumer organisations are strongly in favour of a Europe-wide initiative, but many representatives of industry fear the risks of abusive litigation. Opinions differ – as was to be expected – at the political level as well. However, this should not prevent the emergence of a common view on the need to avoid the excesses and drawbacks of the US system.
Given the wide range of positions, we should look for better and more updated information before we can agree on the principles of collective action in Europe. This is the tradition at the European Commission, where no effort is spared to base policy-making on evidence and to address the needs of all the parties concerned.
We want our decisions drafted taking into account the full range of opinions. In line with this tradition – and in addition to the public consultation I mentioned earlier – a stakeholder forum will be held in Brussels in mid-February 2011.
There are several reasons why I believe we should find the way to advance collective action in Europe.
First, although we have good tools to enforce EU competition policies with national governments and companies, Europe’s citizens and businesses should have the effective right to obtain compensation for the losses incurred as a consequence of competition infringements. And this is not always the case.
As you know, in many cases private enforcement is carried out individually: individuals and businesses can obtain compensation when they are harmed by companies that adopt illegal commercial practices either by going to court or settling out of court.
But what happens when the victims are large groups of citizens or businesses? Let us imagine that a company does not respect EU-wide safety standards, puts contaminated foodstuff on the market and forces thousands of people in several countries to spend a day at the hospital.
The victims can still go to court individually to seek compensation, but the court would be drowned under a flood of lawsuits and the costs would be huge for victims, defendants and society at large.
In cases like these, individual action would be impractical and collective action is the obvious solution: in each country, all the victims would get together and ask a court to pass one single ruling to compensate them all.
This is the story in theory. In practice, things don’t go this way, as we know well from the competition domain.
When the victims of illegal practices – say, a cartel – are large companies, they would always bring a lawsuit to obtain compensation. To give you one example, following the synthetic rubber cartel fined by the Commission in 2008, the leading producers of car tires are suing synthetic rubber manufacturers in a court of justice in London.
But when the victims are consumers and small businesses, they would not go to court if their losses do not justify the costs of litigation and the uncertainty of the outcome. They often receive no compensation for the harm they suffer. Let me give you two well-known examples; one involving consumers and the other small businesses.
In 2005, French mobile operators were found to have created a cartel that for two years overcharged as many as 20 million subscribers for their services. A French consumer association tried to represent a large group of these consumers in court but, owing to current French rules, they did not succeed.
Two years later, Dutch brewers were found to operate a cartel which raised the price of beer for a great number of bars and cafés in the Netherlands. The establishments tried to bring the brewers to court through their association but, again, could not initiate a representative action under Dutch law.
In both cases, the aggregate economic harm was large but the harm caused to each victim too small to justify individual and separate lawsuits. It is estimated that unrecovered damages of infringements of EU antitrust law alone amount to over €20 billion per year.
It is clear that we need to take action, because rights that cannot be enforced in practice are worthless.
There is another reason why I believe we should address the issue of collective action – the need to ensure equal legal conditions throughout the EU. I will quote from the Report presented by Professor Monti last May to argue this point:
"The right to obtain compensation for damages following a breach of EU law is the same for all citizens of the EU. Access to this right is not.
The result is a marked inequality between Member States in the level of protection of the right to damages."
We need to ensure that citizens, businesses and any other organisation can use in practice the opportunities offered to them by the single market and the European area of freedom, security and justice and that they can use them regardless of where they are in Europe.
Ladies and gentlemen:
The need for action is clear, but we cannot ignore the difficulties before us.
There are large differences in Europe when it comes to collective action; the law makes no room for it in about half of the Member States and where it does, there is a huge variety in scope and effectiveness. Let me give you a few examples.
Who has the power to launch a lawsuit? In Finland, the right to launch a lawsuit is granted to a public authority – the Ombudsman –, in Bulgaria to consumer associations, and in Portugal to individuals acting on behalf of a group.
Who qualifies for compensation? Whereas most national legislations have provisions for groups of consumers, only six include other victims as well, such as small businesses.
Other important differences include how the damages awarded by the courts are distributed and the use of alternative mechanisms to resolve a dispute. This is unacceptable, because the effective rights of European citizens cannot vary depending of where they live in the EU.
It is clear that we need to identify common standards and minimum requirements for collective actions in every Member State and in all relevant EU policies. The Commission will follow these steps:
First, as I said earlier, we will launch a public consultation to gather the views and concerns of stakeholders and civil society. Let me repeat that the consultation is designed to look at all the policy domains that are relevant to collective redress, and not only at the private enforcement of competition law.
After receiving the results of the public consultation, the European Commission will agree on a common European approach and a general legal framework to collective redress across the Union in the Spring of 2011. Subsequently, this framework will be used to launch specific legislative initiatives in the different policy domains.
Once we have agreed on the common principles, I intend to present to the Commission a specific proposal on antitrust damages actions, hopefully in the second half of 2011. The initiative will set common standards and minimum requirements for national systems of antitrust damages actions to ensure that rights are a reality for all. National authorities will then see how to translate these common principles into practice in line with their legal traditions.
Also, as I pledged during my confirmation hearings, Parliament will be involved in this debate at the same level as Member States following the co-decision procedure.
The approach I have just sketched is likely to promote coordinated action among the Member States. Few EU countries have passed new laws in this area, and the reforms they have adopted so far tackle only some of the obstacles to effective compensation.
However, uncoordinated reforms may in fact widen existing gaps between national legal systems, with the result that individuals and businesses would receive an even more unequal treatment across the EU.
A new and coherent European framework drawing on the different national traditions would set a coordinated process of reforms in motion. A European common approach would help citizens and businesses get the compensation they are entitled to on an equal footing across Europe.
Today, victims are forced to shop around the EU for the jurisdiction that can best protect their interests and uphold their rights. When common minimum standards are in place, this would no longer be necessary and the single market will be stronger and more efficient.
Finally, when groups of victims bundle their claims in a single collective procedure or are represented by a single body, judicial processes would be simplified and significant savings would be made.
Ladies and gentlemen:
I would like to reprise a couple of the points we need to agree in principle before we take a common framework position on collective action in Europe.
First, the initiative must ensure that victims obtain full compensation of the actual loss incurred. But not more than full compensation. This is not about punishment, it is about justice.
Second, collective action in Europe has not led to abuse – and this is something we should be proud of. We must identify safeguards that will prevent importing a US-style litigation culture and ensure balance in our European approach for collective redress.
Europe and the US follow different traditions; for instance, whereas in Europe we rely largely on public enforcement agencies, about 95% of all antitrust cases that are tried at US courts are brought by private claimants.
Many safeguards must be included in our model that would leave no room for abusive litigation. For instance, only state bodies and certified non-profit organisations could be allowed to bring representative actions and the certification can be withdrawn in case of abuse; and the damages awarded could go entirely to the victims, not to the representative entity.
One final point of debate is about the definition of the group that seeks collective redress. This issue is normally framed in the terms of opt-in and opt-out.
In opt-in systems, a decision only binds those who have expressly consented to the proceedings; this is the case in Sweden, Italy and some other Member States. Alternatively, the decision becomes binding for all members of the group unless they opted out, such as in Portugal, Denmark, and the Netherlands. But we should avoid excessive simplification, because there are many variations for both opt-in and opt-out as to who can make claims for a group, when, and how.
Any future European framework for group claims would need a more sophisticated treatment. We have to focus the debate – without being constrained by extreme views – on the best answer for the who, the when, and the how of groups of victims getting together to make sure that their rights are affirmed in practice.
Let me repeat that these are just initial thoughts; the debate we are launching with the public consultation will doubtless bring many more. But one thing is already clear: the need to avoid a US-style class-action model and of importing its problems should not prevent us from acting in this area.
I believe that we have the responsibility to take action about the harm done by breaches of competition and other rules to Europe’s industrial and commercial businesses and to consumers. And we have the responsibility to have coherent rules throughout the EU to protect the integrity of the single market.
Therefore I believe that the best form for a EU-wide legislative proposal is a Directive that specifies common standards and minimum requirements for national systems of antitrust damages actions.
But this is the work that awaits us next year. The first step is to reject entrenched negative positions. If we are serious about giving all our citizens full access to their rights, we need to find an agreement on adequate common standards for private enforcement legislation across Europe. Looking at the arguments I have given you so far, I think that we will reach this agreement soon.
I am counting on the support of my fellow Commissioners, other EU institutions and authorities in the Member States. I am also counting on the cooperation of all stakeholders, who are invited to participate in the public consultation. Finally, I make an appeal to academics and experts, who will help us stir the debate throughout the Union and find the best solutions to the needs and concerns that will emerge from it.
Every year, large numbers of small businesses and ordinary people in the EU are effectively deprived of their rights as economic actors and as citizens. Together, we can forge a new shield to defend their rights and protect their interests.
COM (2005) 672, 19.12.2005
COM (2008) 165, 2.4.2008