Delivering Collective Redress in Markets: New Technologies

Abstract

This Policy Brief summarizes the findings of a joint project between Oxford University and the Catholic University of Leuven aimed at evaluating different mechanisms for delivering collective redress. 1. Incoherence in addressing market failures. The cohort of case studies assembled in this project shows that EU Member States vary enormously in how they address the simple issues that arise in most consumer disputes (unfair contract terms, overcharges, etc.), particularly with regard to public and private enforcement. Where Member States rely on private parties pursuing litigation, the results can be notably slow, expensive, ineffective in providing remedies, and fail to address systemic issues. 2. Need for a coherent, modernized approach to market behaviour and enforcement. National systems for addressing market regulatory behaviour badly need attention at policy and governmental levels, since almost no State has taken a sensible joined-up approach to either the relationship between public and private enforcement (including ADR and self-regulation) or how to affect behaviour (hence the concept of Ethical Business Regulation as a balanced policy). 3. Requirements for control of market oversight. The objectives of an effective regulatory system should run in the following sequence: 1. Establishing clear rules and their interpretation 2. Identification of individual and systemic problems 3. Cessation of illegality 4. Decision on whether behaviour is illegal, unfair, or acceptable 5. Identification of the root cause of the problem 6. Identification of what actions are needed to prevent the reoccurrence of the problematic behaviour, or reduction of the risk 7. Application of the actions (a) by identified actors (b) by other actors 8. Dissemination of information to all (a) firms (b) consumers (c) other markets 9. Redress 10. Sanctions 11. Ongoing monitoring, oversight, amendment 4. Private enforcement. The EU has harmonized class actions for injunctive relief, and some Member States have introduced them for damages, but national models all differ. There have been relatively few (damages) class actions in Europe. The countries that have the highest usage figures are Italy and Poland, where lawyers and consumer associations try to bring class cases but suffer a high failure rate for certification. 5. A shift to new technologies. The ‘new technologies’ of regulatory redress and consumer ombudsmen (in the UK sense, not the Nordic sense) are far more effective, quick, and cheap than the ‘old technology’ of collective litigation. These case studies demonstrate that unequivocally. The new technologies deliver the goals of affecting future behaviour, redress, and efficiency, which the old technology does not.