Abstract
Abstract Regulatory agencies have traditionally been concerned with deterring unlawful conduct in the public interest. This article explores the emerging role of agencies in securing compensation for individuals in mass damage situations resulting from violations of EU private law. It identifies three main models of the relationship between administrative enforcement and private law remedies, notably damages, within the agencies’ operation: (1) separation, (2) complementarity, and (3) integration. These models reflect elements of the current legislative and agency practices in a variety of jurisdictions across different areas of EU private law and provide an analytical framework for assessing such practices in terms of their potential to reconcile the pursuit of the public interest with a concern to ensure justice between private parties. The analysis points to the need to systematically rethink the prevailing regulatory theory concerning the tasks of regulatory agencies along the lines of a holistic approach to deterrence and compensation.
Highlights
Regulatory agencies of the modern state have traditionally been charged with pursuit of the public interest and operated exclusively in the sphere of public law, administrative law
It identifies three main models of the relationship between administrative enforcement and private law remedies, notably damages, within the agencies’ operation: (1) separation, (2) complementarity, and (3) integration. These models reflect elements of the current legislative and agency practices in a variety of jurisdictions across different areas of European Union (EU) private law and provide an analytical framework for assessing such practices in terms of their potential to reconcile the pursuit of the public interest with a concern to ensure justice between private parties
Based on the representative examples from different areas of EU private law, notably product safety and product liability, antitrust, unfair trading, unfair contract terms, consumer sales of goods, and financial services, the models provide an analytical framework for assessing such practices in terms of their potential to reconcile the pursuit of the public interest with a concern to ensure justice between private parties
Summary
Regulatory agencies of the modern state have traditionally been charged with pursuit of the public interest and operated exclusively in the sphere of public law, administrative law. In mass damage situations involving consumers and occasionally SMEs, public watchdogs tend to combine traditional punitive administrative law tools, such as fines, with more ‘private law’-coloured instruments, such as consumer redress schemes, supplementing private law courts and alternative dispute resolution (ADR) bodies in ensuring interpersonal justice In this context, it has been argued that the enforcement of EU private law has become a regulated market for dispute resolution where these different actors compete with each other and where justice for consumers is a service.[11] In essence, when addressing remedial issues, regulatory agencies are concerned with both deterrence and compensation, undermining a conventional separation between administrative and private enforcement and serving the public interest, and the private and collective interests of individuals and their groups. I conclude with the summary and some final reflections on the way forward for regulatory theory and enforcement policy (Section V)
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