Collective Redress in EU Competition Law: An Open Question with Many Possible Solutions

Abstract

This paper analyses the current trends of the debate in the area of collective redress of injuries caused by the consequences of anti-competitive behaviour in the EU in light of the more recent case law governing class certification of antitrust collective complaints in the US federal courts and of the legislative developments occurring in several European jurisdictions. Whilst not advocating the total 'transplantation' of opt-out class actions in EU competition law, it will illustrate that the Commission's concerns as to the viability of these collective lawsuits have become less pressing and consequently, will argue for a more open-minded discussion of how to create effective and fair mechanisms for the collective redress of individual rights. It will first provide a brief examination of the current approach adopted by the Commission to collective redress in the area of competition law and, more specifically, in respect to 'diffuse torts'. Thereafter, the paper will analyse the case law of the US Superior Federal Courts concerning the class certification of collective antitrust complaints and illustrate that the Commission's scepticism as to the viability of these actions may no longer be justified. It will be shown that the scrupulous scrutiny of the proposed class filings, conducted by the American courts can contribute effectively to 'identifying' prima facie unmeritorious claims and thereby allowing only truly 'suitable' complaints to proceed as class actions. In light of the forgoing, it will be concluded that the Commission's position on these issues seems difficult to sustain and could even become an obstacle to discussing how to respond to the demands of ensuring effective redress to the victims of torts having a widespread impact on society and the economy, for which individual dispute settlement may be inefficient.