Seminar 2: Competition Law and Consumer Law (11 October 2012)
The overlap between these two legal domains has increased in recent years, especially as the more economics-based approach to competition law in the EU has made consumer welfare a more central part of its law enforcement activities (whether at the stage of deciding on what cases to prioritise, or at the stage of developing a theory of harm). Concomitantly, the law and economics approach to consumer law might have moved its legal standards closer to those of competition law. That said, there remain probably differences between the two approaches. I would like to consider both the overlaps and the differences.
Case C-238/05 Asnef-Equifax, Servicios de Información sobre Solvencia y Crédito, SL v Administración del Estado  ECR I-11125
J.D. Wright ‘The Antitrust/Consumer Protection Paradox: two Policies at War with Each Other’ (2012) 121 Yale Law Journal 2216
G. Monti ‘The Revision of the Consumer Acquis from a Competition Law Perspective’ (2007) 3(3) European Review of Contract Law 295
E. Hondius ‘The Innovative Nature of Consumer Law’ (2012) 35 Journal of Consumer Policy 165
Questions for reflection
1. What is the possible role that the consumer plays in EU competition law? Consider for example the application of Article 101 TFEU.
2. Is it possible to think that we could do away with consumer law and rely solely on competition law? If not, what specific examples can you use to illustrate the sorts of harm that consumer law addresses that competition law cannot?
3. Does competition law create an analytical framework that is duplicated in consumer law (or vice versa)? Or are the two approaches irreconcilable?
4. Consider remedies and enforcement in the two fields: are there, or should there, be any similarities or differences?
5. What should we do if we find consumer law has anticompetitive effects?
K. Armstrong Interactions between Competition and Consumer Policy (2008) 4(1) Competition Policy International 97
M. Huffmann Bridging the Divide: Theories for Integrating Competition law and Consumer Protection 2010 6(1) European Competition Journal 7
J.R. Macey & J.P. Holdcroft, Jr., Failure Is an Option: An Ersatz-Antitrust
Approach to Financial Regulation, 120 Yale LJ 1368 (2011)
Neil W. Averitt & Robert H. Lande, Consumer Sovereignty: A Unified Theory of Antitrust and Consumer Protection Law, 65 Antitrust LJ 713 (1997)
I. Haracoglou ‘Competition Law, Consumer Policy and the Retail Sector: Systems’ Relation and the Effects of a Strengthened Consumer Protection Policy on Competition Law’(2007) 3(2) Competition Law Review 175