Determining the applicable law for breach of competition claims in the Rome II Regulation and the need for effective consumer collective redress

The last five years have witnessed a decrease in the parallelism between EU competition and consumer law policies. Recent policy and legislative developments in these politically distinct areas of EU law highlight that effective consumer protection and redress – where it does not currently exist at the level of Member States – will increasingly rely upon effective regulation and enforcement of anti-competitive business practices via EU competition law. Indeed recital 7 of Regulation EC 1/2003 requires Member States to ensure that private individuals can pursue private redress mechanisms via national courts. Consequently, the increasing prevalence of private enforcement – namely private claims for damages – as a means of regulating market activity and enhancing consumer protection between the Member States necessitates reference to Community rules on private international law. In 2002 Withers commented that the ‘cause of action [for a claim in tort for breach of competition law] is very much at an incipient stage of development'. The same could be said for analogous rules of EU private international law. Indeed, at the time Withers's valuable analysis of jurisdiction and applicable law rules alluded to the need for many other significant ‘additional procedural and evidential issues’ to be addressed to ensure the effectiveness of private enforcement as a remedy for victims of anti-competitive behaviour. Nevertheless, in accordance with Treaty obligations, the EU has continued to implement measures designed to facilitate private enforcement of competition laws. Furthermore it has also continued to implement measures pursuant to judicial cooperation in civil and commercial matters. The most recent development connecting both measures is Regulation EC 864/2007 on the Law Applicable to Non-Contractual Obligations (hereafter the Rome II Regulation), which provides rules to determine the applicable law of a non-contractual obligation. A key development offered by this new, communitarised private international law instrument is contained in Article 6. Article 6 of the Rome II Regulation determines the applicable law that will apply when private, final consumers or their representatives claim damages against businesses for anti-competitive practices or acts which have restricted competition, thereby impeding consumer choice.