Concurrences
Revue des droits de la concurrence | Competition Law Review
UK: What makes claims
eligible for inclusion in
collective proceedings?
International
l Concurrences N° 1-2016 l pp. 240-250
David R. Wingfield
drw@fountaincourt.co.uk
Barrister, Fountain Court Chambers, Temple, London
David R. Wingfield
drw@fountaincourt.co.uk
Barrister, Fountain Court Chambers,
Temple, London
AbstrAct
en octobre 2015, le royaume-uni a adopté
une procédure d’action de groupe pour
des recours en droit de la concurrence.
cette procédure prend le nom de « recours
collectif ». La procédure offre un large pouvoir
discrétionnaire au competition Appeal
tribunal pour déterminer si les requêtes
qui lui sont présentées peuvent être
considérées comme un recours collectif.
cet article examine les facteurs qui permettent
à une demande d’être considérée comme
un recours collectif à travers le prisme
de l’experience en matière d’action
de groupe en Amérique du nord.
In October of this year, the UK enacted a class
action procedure for competition law claims.
The procedure is called “a collective
proceedings.” The procedure gives a broad
discretion to the Competition Appeal Tribunal
to determine whether claims are eligible to be
brought as a collective proceedings.
This article examines those factors that make
a claim eligible for inclusion in collective
proceedings through the lens of North
American class action experience.
UK: What makes
claims eligible
for inclusion
in collective
proceedings?
I. Introduction
1. Two years ago, and following lengthy consultations with consumer, business
and legal stakeholders, the government decided to overhaul the procedures
governing private competition law actions.1 These new procedures are found in
the Consumer Rights Act 2015. Schedule 8 to the Act amends the Competition
Act 1998 and the Enterprise Act 2002 in significant and far-reaching ways.
The amendments came into force on 1 October 2015.
2. The Consumer Rights Act 2015 introduced into UK law a North American
style class action regime for claims seeking redress on a collective basis for
violations of UK and EU competition law. Violations of competition law can
cause extensive harm across wide swaths of the economy but in a manner that
does not justify individual damage claims by those harmed. The government
hopes that by permitting class actions consumers and businesses will have a more
effective means of obtaining redress for losses they have suffered as a result of
breaches of competition law than is available under the ordinary rules of civil
procedure.2
3. This new regime is not called a “class action,” however. Rather, it is called
a “collective proceedings.” The collective proceedings regime is significantly
different from the, perhaps more aptly named, representative parties rule in
CPR 19.
sEE aLso on
Concurrences +
4. The collective proceedings regime is found in two places. First, the Competition
Act 1998 has been amended to create the legislative framework for the regime.
In particular, section 47B of the amended Competition Act 1998 creates a
collective proceedings procedure for claims and establishes the key features
of that procedure. Sections 49A and B create the procedure for collective
settlements. Second, the Competition Appeal Tribunal (CAT) has been given
extensive discretionary powers to authorise and control collective proceedings
and collective settlements. The CAT’s powers in this respect are found in Part 5 of
the new Competition Appeal Tribunal Rules 2015 (“Tribunal Rules” or “Rule”),
which contain detailed rules for when and how this new procedure is to be used.
www.concurrences.com
“Peru: Antitrust law
sharpens its teeth
against cartels:
Too little...
not too late”
Mario Zúñiga
240
1 Private Actions in Competition Law: A Consultation on Options for Reform, January 2013 - Government Response,
https://www.gov.uk/government/consultations/private-actions-in-competition-law-a-consultation-on-options-for-reform.
2 Consumer Rights Bill, Explanatory Notes §§ 401 et seq.
Concurrences N° 1-2016 I International I David R. Wingfield I UK: What makes claims eligible for inclusion in collective proceedings?
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L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
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International
II. Representative
proceedings
6. Class actions are a form of representative proceedings.
Such proceedings are brought by or against one or
more natural or legal persons who are able to represent
a large number of persons who are not themselves
named or present in the litigation, but who are bound
by its outcome. The ability to bind absent litigants to
the outcome of a dispute they did not initiate and do
not control is what makes class action proceedings the
exception and not the rule in private litigation.3
7. For this reason, class action rules are designed
to accomplish two primary purposes. One purpose
is to identify the circumstances where this form of
representative litigation is appropriate. The other is
to ensure that the rights of absent class members are
protected in a manner consistent with their rights were
they to be individual litigants. Class action rules are
therefore fundamentally procedural in nature. They do
not modify any substantive rights, although, as we will see
later, the existence of class action procedure may influence
the content and application of substantive rights.
8. Modern class action procedure was first developed in
the United States. Formal rules creating such a procedure
were needed because the Federal courts of that country
had not been able to use the normal procedural rules to
accommodate complex multi-party litigation in a modern
economy. Consequently, in 1938 the United States
enacted Rule 23 as part of the then new Federal Rules
of Civil Procedure. This rule proved to be unsatisfactory
and in 1966 the rule was substantially amended, largely in
the form it appears today.4
9. Rule 23 is a complicated rule. It contains many parts
and sub-parts. At its core the rule seeks to ensure that
a class action may be maintained only when it is more
economical than individual actions and where the
plaintiff’s claim and the class claim are so inter-related
that the interests of the absent class members will be
fairly and adequately protected by a class proceeding.5
For present purposes, what is important about the rule
is that it provides that class proceedings are maintainable
where certain prerequisite conditions are satisfied and:
3 Phillips Petroleum Co. v. Shutts 472 US 797 (1985); Wal-Mart Stores,
Inc. v. Dukes 131 S Ct 2541, 2550 (2011); Comcast Corp v. Behrend
133 S Ct 1426, 1432 (2013).
4 Federal Rules of Civil Procedure Rule 23. [As amended 28 Feb. 1966, eff.
1 July 1966; 2 Mar. 1987, eff. 1 Aug1987].
5 General Telephone Co. of Southwest v. Falcon 457 US 147, 157 n 13 (1982).
– there is a risk that separate actions would
impose incompatible standards of conduct on the
adverse party (such as a determination in one case
that a widely held financial instrument is void and
in another case is valid);
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L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment and up to a € 300 000 fine (Art. L. 335-2 Code de la Propriété Intellectuelle). Personal use of this document is authorised within the limits of Art. L 122-5 Code de la Propriété Intellectuelle and DRM protection.
5. This article will examine those factors that make a
claim “eligible” for inclusion in collective proceedings.
Since the collective proceedings regime is very much terra
incognita, this paper will consider this issue through the
lens of the North American class action experience.
– there is a risk that the practical effects of
separate actions would be unfair to some parties
with identical claims (such as when a defendant
does not have sufficient funds to pay all potential
claimants in full);
– final injunctive or declaratory relief alone is the
appropriate relief for the whole class; and
– the questions of law or fact common to
members of a class predominate over any
questions affecting only individual members of
the class and that a class action is superior to
other available methods for “fairly and efficiently”
adjudicating the dispute.
10. Although these circumstances appear to have little in
common, they each solve a particular problem inherent
in individual litigation that causes negative externalities
to be imposed on others. These externalities include
things such as the costs of inconsistent rulings or the
costs of allowing a limited fund to go to those who sue
first. By converting individual actions into class actions
these costs are “internalised” into the class.6
11. Following an influential report published in 1982 by
the Law Reform Commission of Ontario,7 most Canadian
provinces and the federal jurisdiction enacted formal
class action procedures similar in principle to America’s.
Although each Canadian jurisdiction describes the tests
for when an action is appropriately brought as a class
proceeding in slightly differently ways, the Canadian rules
all require that a class action procedure be preferable to
other available procedures for resolving the dispute.
12. However, Canadian legislation, unlike US Federal
Rule 23, commonly prohibits the courts from relying on
certain factors to deny certification of a class proceeding.
Typically, these factors are: that (i) the relief sought will
require an individualised damage assessment; (ii) the
relief relates to separate contracts involving different class
members; (iii) different remedies are sought for different
class members; (iv) the numbers or identities of the class
members are not known; and (v) the class contains a
subclass with different claims or defences. These factors
are essentially a distillation of the circumstances that at
common law were used to refuse a representative action
on the basis that the members of the proposed class to
be represented did not have the “same” or a “common”
interest.
6 William B. Rubenstein, Newberg on Class Actions 5th ed. §1:3 [hereafter
“Newberg on Class Actions”].
7 Report on Class Actions, Vol. I, Ontario Law Reform Commission, Ministry of
the Attorney General (1982) p. 5.
Concurrences N° 1-2016 I International I David R. Wingfield I UK: What makes claims eligible for inclusion in collective proceedings?
241
13. Section 47B of the amended Competition Act 1998
provides that claims may be combined in collective
proceedings, inter alia, where:
– two or more claims have been brought under
section 47A of the Competition Act 1998 seeking
damages, money, or (in England and Wales, and
Northern Ireland) an injunction for a proven or
alleged breach of UK or EU competition law;
– a person has commenced collective proceedings
under section 47B of the Act by combining two
or more of these claims and proposing to be the
representative in those proceedings;
– the CAT has made an order under section 47B
continuing those proceedings as collective
proceedings; and
– the CAT’s order (i) authorises a particular
person to act as a representative in the
proceedings; (ii) describes the class of persons
whose claims are eligible to be included in the
collective proceedings; and (iii) specifies whether
the proceedings are opt-in or opt-out.
14. As its name implies, in an “opt-in” regime claimants
who meet certain criteria have to take positive steps to
include themselves in representative proceedings. In an
“opt-out” regime, on the other hand, claimants who
meet certain criteria are automatically included in the
representative proceeding unless they take positive steps
to exclude themselves from it. The “opt-out” provisions
contained in section 47B represent the first use of
American-style class action procedure in the UK.
15. Under section 47B(5) the CAT is permitted to make
a collective proceedings order only (i) if the person
who brought the proceedings is authorised to act as
a representative of the class under subsection 8 and
(ii) in respect of claims which are “eligible for inclusion”
in collective proceedings. In turn, section 47B(6) provides
that claims are “eligible for inclusion” as collective
proceedings only if the CAT considers that they raise
“the same, similar or related issues of fact or law” and “are
suitable to be brought in collective proceedings.”
16. Tribunal Rule 79(1) gives the CAT a discretionary
power to certify (“may certify”) claims for inclusion in
collective proceedings. The sub-rule provides that the
CAT is to exercise its discretion, “having regard to all the
circumstances,” where it is satisfied that the claims are
brought on behalf of “an identifiable class of persons,”
raise “common issues” and are “suitable to be brought
in collective proceedings.” Rule 79(2) requires the CAT
(“shall take into account”) to consider “all matters it
thinks fit” when determining whether the claims are
suitable to be brought in collective proceedings.
242
17. The sub-rule goes on to list a series of non-exhaustive
factors the CAT is required to consider when determining
whether the claims are “suitable” to be brought in
collective proceedings. These factors are:
– whether collective proceedings are an
“appropriate” means for the fair and efficient
resolution of the common issues;
– the costs and benefits of continuing the
collective proceedings;
– whether any separate proceedings making claims
of the same or a similar nature have already been
commenced by members of the class;
– the size and nature of the class;
– whether it is possible to determine for a person
whether he is or is not a member of the class;
– whether the claims are suitable for an aggregate
award of damages; and
– the availability of alternative dispute resolution
and any other means of resolving the dispute.
18. Tribunal Rule 79(3) requires the CAT to determine
whether the collective proceedings should be “opt-in” or
“opt-out” by taking into account “all matters it thinks
fit” including two factors in addition to the seven listed
above. Those additional two factors are:
– the strength of the claims; and
– whether it is practicable for the proceedings
to be brought as opt-in collective proceedings,
having regard to all the circumstances, including
the estimated amount of damages that individual
class members may recover.
19. Finally, at the hearing of the application for a
collective proceedings order Rule 79(4) permits the CAT
to hear any application by the defendant (i) to strike out
the whole or any part of the claims sought to be included
in the collective proceedings; or (ii) for summary
judgment as if a defence had been filed.
20. The eligibility provisions of Rule 79 are, then, a loose
collection of non-exhaustive factors that are to be taken
into account by the CAT when exercising its discretion
whether to allow claims to be brought as collective
proceedings. The rule does not contain any criteria to
permit the CAT to relate any particular factor to any
particular policy objective. Indeed, the impression left
by these factors is that the CAT has been left to answer
on its own—expressly or implicitly—the question of
how collective proceedings may achieve particular policy
goals when the Tribunal is deciding whether claims may
be brought as collective proceedings. This impression is
reinforced by the lack of any analysis in the consultations
over the establishment of the collective proceedings
regime comparable to the Advisory Committee’s Note on
the 1966 amendments to US Federal Rule 23 or to the
Ontario Law Reform Commission’s 1982 Report on class
actions.
Concurrences N° 1-2016 I International I David R. Wingfield I UK: What makes claims eligible for inclusion in collective proceedings?
Ce document est protégé au titre du droit d'auteur par les conventions internationales en vigueur et le Code de la propriété intellectuelle du 1er juillet 1992. Toute utilisation non autorisée constitue une contrefaçon, délit pénalement sanctionné jusqu'à 3 ans d'emprisonnement et 300 000 € d'amende (art.
L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment and up to a € 300 000 fine (Art. L. 335-2 Code de la Propriété Intellectuelle). Personal use of this document is authorised within the limits of Art. L 122-5 Code de la Propriété Intellectuelle and DRM protection.
III. The UK collective
proceedings regime
21. In common with the class action procedure found in
US Federal Rule 23 or the class action legislation found
in the various Canadian jurisdictions, Tribunal Rule 79
requires the CAT to answer a number of questions before
it can decide to grant an order authorising a collective
proceedings. Some of these questions arise out of the
express provisions of section 47B or Rule 79 and others
are implicit in the application of these provisions. There
are seven key questions:
– Are the claims “suitable” or “appropriate” to be
brought in collective proceedings?
– Are there “common” legal or factual issues?
– Is the proposed class the right size and
composition for collective proceedings?
– Are collective proceedings preferable to other
available proceedings?
– Are aggregate damages available?
– When should collective proceedings be opt-in
versus opt-out?
– What is the evidentiary standard for determining
whether a collective proceedings order should be
granted?
1. Suitability or appropriateness
22. The standard justification for class litigation is that
the litigation permits many small claims that would not
see the light of day individually to be aggregated and
litigated collectively by a representative party. Permitting
litigation to be conducted in such a manner permits
rights to be vindicated that would otherwise be lost—
leading to an unjustified benefit to those who would
might otherwise be liable for misconduct. Although this
is the standard justification for a class action it is just a
particular example of a more general justification.
23. The more general justification (as stated above and as
explained more fully in Newberg on Class Actions) is to
internalise the negative externalities created by individual
litigation. Negative externalities may arise in a variety
of circumstances where claims are litigated individually.
These externalities may affect either potential plaintiffs or
defendants and the class procedure may therefore benefit
plaintiffs or defendants in different circumstances. Where
such negative externalities are likely, then, as a matter of
policy, these externalities should be internalised into the
class of similarly situated people by having the litigation
proceed on a class-wide, rather than an individual, basis.
To allow this litigation to be conducted efficiently the
class is represented in the litigation by one or more of
its members.
Ce document est protégé au titre du droit d'auteur par les conventions internationales en vigueur et le Code de la propriété intellectuelle du 1er juillet 1992. Toute utilisation non autorisée constitue une contrefaçon, délit pénalement sanctionné jusqu'à 3 ans d'emprisonnement et 300 000 € d'amende (art.
L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment and up to a € 300 000 fine (Art. L. 335-2 Code de la Propriété Intellectuelle). Personal use of this document is authorised within the limits of Art. L 122-5 Code de la Propriété Intellectuelle and DRM protection.
IV. How might
“eligibility”
be determined
in the collective
proceedings regime?
24. Even though internalising these negative externalities
through class litigation might be sound policy, the
soundness of the policy alone cannot justify forcing
absent litigants to be part of litigation they did not
commence or expressly authorise. Rather, there must
be some principled basis for forcing absent litigants to
participate in such litigation and the procedure must be
fair to them.
25. United States courts have articulated four
justifications for why class proceedings are appropriate
even though they might deprive some people of a private
right of action: administrative efficiency; compensation
where the individual claims are too small to justify a
lawsuit; deterrence; and enhancing the legitimacy of
the legal system.8 The Supreme Court of Canada has
articulated three such justifications, although it does not
appear that there is any meaningful difference in practice
between the Canadian and American approaches in this
regard: judicial economy; behaviour modification; and
access to justice.9
26. The justifications articulated in the United States and
in Canada for their respective class action procedures
would appear to apply equally to the collective
proceedings regime for competition law disputes in
the UK. Accordingly, a collective proceedings would
in principle seem to be an “appropriate” means for the
fair and efficient resolution of common issues affecting
a group of people within the meaning of Tribunal
Rule 79(2)(a).
27. The more challenging question is whether particular
claims are “suitable” to be brought as a collective
proceedings within the meaning of section 47B(6) of the
amended Competition Act 1998 and Tribunal Rule 79(2).
In principle the answer to this question should depend
on whether the claims are of a type that would create
negative externalities unless they are litigated as a class
proceeding. To put this in the opposite way, if there is
little or no possibility of a negative externality arising
from individual claims then it would seem that such
proceedings would not be “suitable” to be litigated
as a class proceeding. Consequently, the suitability
requirement would appear to be met where claims that are
proposed to be litigated collectively are the same as the
“types of class actions” found in US Federal Rule 23(b).
28. However, where a proceeding which might otherwise
be justified as a class proceeding is being brought for
the purpose of economic blackmail (eg. where there is
a remote possibility of liability yet crippling damages
8 Newberg on Class Actions §§ 1:7-10.
9 Hollick v. Toronto (City) [2001] 3 SCR 158, 170.
Concurrences N° 1-2016 I International I David R. Wingfield I UK: What makes claims eligible for inclusion in collective proceedings?
243
2. Common issues
29. The laws of the UK, the United States and Canada all
agree that litigation may be conducted by a representative
of a group of people only if the litigation raises factual
or legal issues that are common to the resolution of the
claims of all members of the putative class.
30. This requirement has been at the core of representative
proceedings from the beginning of the procedure in the
1700s because the “efficiency and economy of the litigation
which is a principle purpose of the [class] procedure”11
arises only when there are common questions affecting
many people in the same way that can be resolved in one
proceeding. Unless there is a common issue of law or fact
there is no basis to bind absent parties to the outcome
of the representative litigation; where there is a common
issue of fact or law, however, both the legal system and
the parties benefit from having that issue adjudicated once
and efficiently rather than many times and inefficiently.
31. Commonality tests have been a source of confusion
in the courts for as long as there have been representative
proceedings, however. If the common issue is defined too
broadly or too abstractly the representative litigation will
not serve its intended purposes. If, on the other hand,
the issue is defined too narrowly then the representative
litigation might be impossible to maintain.12
32. Indeed, the inability to develop a modern class action
vehicle under the representative proceedings rule was mainly
due to the courts’ narrow application of the commonality
principle (“same interest”) originally found in Rule 10 of
the 1873 rules of civil procedure. From Markt & Co.,
Ltd. v. Knight Steamship Co., Ltd. [1910] 2 KB 102 (CA),
onward most courts in England and the Commonwealth
considering the principle of commonality in that rule
examined the differences—not the similarities—between
the claims of the putative class members and then asked if
those differences would preclude each class member from
obtaining the same remedy; if so a representative action
could not be maintained.
244
itself, was probably chosen in an attempt to ensure that
section 47B(6) is not interpreted in the same way that
Rule 10 and its progeny were. Indeed, section 47B(6)
describes commonality in terms that are remarkably
similar to the class action provisions of the Quebec Civil
Code which describe commonality as “identical, similar
or related questions of law or fact.”
34. Both Canadian and United States laws require the
putative class representative to demonstrate that there is
at least one common question of law or fact shared by
the class and that the common question be important to
the individual class members’ claims. Neither jurisdiction
equates “common” with “identical,” for example.
Notwithstanding the similarity of the tests, however,
United States and Canadian courts differ on how
important the common issues have to be to the individual
class members’ claims. Since the CAT will also have to
decide how important the common issue or issues have
to be for collective proceedings to be appropriate, the
differing approaches taken by the courts of the United
States and Canada may prove instructive.
35. In the United States the plaintiff is required to
demonstrate that the class members have “suffered the
same injury” and not just the same violation of law.
Therefore, the commonality analysis in US law focusses
on whether resolution of the common issue is central to
the validity of every class member’s claim in one stroke
(“what matters to class certification is not the raising of
common ‘questions’—even in droves—but, rather the
capacity of a classwide proceeding to generate common
answers apt to drive the resolution of the litigation”13)
whilst recognising that there need only be a single
common issue in order to certify a class proceeding.14
36. In Canada, by contrast, the focus is on whether
resolution of an issue advances the resolution of every
class member’s claim, not whether resolution of the
common issue would be central to the validity of every
class member’s claim. The commonality requirement
in Canadian law will be satisfied where resolution of
an issue will avoid duplication of fact-finding or legal
analysis. Furthermore, Canadian courts accept that an
issue may be common even if the trial court ultimately
has to provide “nuanced and varied answers based on the
situations of individual members.”15
33. Section 47B(6) of the amended Competition
Act 1998 defines commonality more broadly than old
Rule 10 did and its modern incarnation in CPR 19 does.
Section 47B(6) defines commonality as the “same, similar
or related issues of fact or law.” In contrast, CPR 19
defines commonality as the “same interest.” The different
nomenclature, as well as the different name for the rule
37. The difference between Canadian and American
courts on this point, then, is that in Canada more latitude
is given, in the comparison to the American position, to
permit a class action to proceed when there are many
individual claims or issues that have to be resolved after the
common issue has been resolved. So long as the common
issue is a substantial component of every class member’s
claim, Canadian courts, more so than American courts,
will allow the action to be certified as a class action.
10 In the matter of Rhone-Poulenc Rorer, Inc. 51 F.3d 1293 (7th Cir 1995) per
Posner J. But see: Reiter v. Sonotone Corp. 442 US 330 (1979).
13 Wal-Mart Stores, Inc. v Dukes, supra, 2551.
11 American Pipe v. Utah 414 US 538, 553 (1974).
14 General Telephone Co. of Southwest v. Falcon, supra.
12 Western Canadian Shopping Centres v. Dutton [2001] 2 SCR 534, 544.
15 Vivendi Canada v. Dell’Aniello [2014] 1 SCR 3 § 46.
Concurrences N° 1-2016 I International I David R. Wingfield I UK: What makes claims eligible for inclusion in collective proceedings?
Ce document est protégé au titre du droit d'auteur par les conventions internationales en vigueur et le Code de la propriété intellectuelle du 1er juillet 1992. Toute utilisation non autorisée constitue une contrefaçon, délit pénalement sanctionné jusqu'à 3 ans d'emprisonnement et 300 000 € d'amende (art.
L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment and up to a € 300 000 fine (Art. L. 335-2 Code de la Propriété Intellectuelle). Personal use of this document is authorised within the limits of Art. L 122-5 Code de la Propriété Intellectuelle and DRM protection.
should liability be found) then it would not appear
to advance the policy considerations that justify the
collective proceedings regime. Some US courts have used
the possibility (or likelihood) of economic blackmail as a
ground for denying class certification.10
39. What will have to be resolved, however, is the
undertaking’s liability to pay damages to one or more
claimants arising from the facts found in the infringement
decision. Whether claimants can proceed with their
claims as collective proceedings will therefore depend
on whether legal or factual issues relating to damages or
other monetary claims that might be highly correlated to
individual circumstances are nevertheless “common.”
40. The greater flexibility of the Canadian approach
to certifying common issues would facilitate collective
proceedings in follow-on proceedings for damages and
the more restrictive approach of American law would
make a collective proceedings more difficult to obtain
in these cases. Therefore, whether the CAT approaches
common issues more like Canadian courts do, or more
like US courts do, will make a considerable difference
to whether follow-on damage claims can be resolved in
collective proceedings.
3. Class size and composition
41. As part of its suitability analysis, Tribunal Rule 79(2)
requires the CAT to consider the size and nature of the
class and whether it is possible to determine for a person
whether or not he is a member of the class. However,
the rule does not provide any additional guidance
about the relevance of these factors to the question of
whether a proposed class is or is not a suitable one for a
collective proceeding. Accordingly, these issues need to
be approached from first principles.
42. The purpose of class definition is to identify those
persons who have a potential claim for relief against the
defendants, to define the parameters of the lawsuit so
as to identify those persons who are bound by its result
and to describe who is entitled to notice of the action.17
These purposes help class actions fulfil their objectives
of judicial efficiency and economy. By combining claims
that have common issues into a single proceeding that
can be litigated by a representative the efficiency and
economy of the litigation process is enhanced. But, as
stated earlier, representative litigation affects the rights
of absent parties without their consent or control.
16 Enron Coal Services (In Liquidation) v English Welsh and Scottish Railway
Ltd. [2009] EWCA Civ 647.
17 Sun-Rype Products Ltd. v. Archer Daniels Midland [2013] 3 SCR 545 § 57.
43. For this reason, class action procedure—either
expressly or implicitly—has to account for the
countervailing tensions between representative and
individual proceedings. American law deals with these
tensions expressly: US Federal Rule 23(a)(1) expressly
provides that joinder has to be impractical (but not
impossible) before a class action may be authorised.
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38. Common issues of fact or law may be particularly
challenging to identify in follow-on proceedings for
damages under section 47A of the Competition Act 1998.
Follow-on proceedings, as the name indicates, occur after
an infringement decision has been made by a competition
authority. The infringement decision is binding in
subsequent enforcement proceedings.16 Therefore, any
issue of law or fact made in that decision will not need to
be resolved in the follow-on damages proceedings, such
as those before the CAT.
44. In contrast, Canadian law does not contain an express
preference for individual action and does not use a test
based on the impracticality of joinder. Rather, Canadian
law is more like the Goldilocks principle: the class size
has to be neither too large to be effective (“that the class
is not unnecessarily broad”18) nor too small to be practical
(“or the proposed class may be so small that joinder would
be a better solution”19).
45. Accordingly, the appropriate size of the class under
the collective proceedings regime may be influenced, as it
is in United States, by whether joinder is administratively
possible or may not be influenced by this consideration
at all, as is the case in Canada. The courts of both the
United States and Canada do agree, however, that in
order for the class to be an appropriate one it must be
“ascertainable” (US language) or “identifiable” (Canadian
language) at the time it is certified by objective criteria
without reference to the merits of the action.20
46. Objective criteria are necessary in order to protect
absent plaintiffs by allowing them to know and to
determine whether they are or are not a member of the
class. This is especially critical when the class provides
for opt-out rights. Objective criteria are also necessary to
protect defendants by enabling them to know who will be
(or is, in the case of a settlement class action) bound by a
judgment against them.
47. The objective criteria are necessarily closely linked
with the identification of the common issue or issues.
Consequently, the criteria may necessitate the creation of
sub-classes within the larger class in order to distinguish
groups that may have special characteristics that need
separate treatment within the broader class.
48. One of the most important issues surrounding
objective criteria is whether the criteria has to be effective
in separating persons who suffered loss or injury from
those who did not. In other words, at the certification
stage must the CAT be satisfied that the proposed class
does not contain any persons who do not have a claim?
49. In the United States this question was left undecided
by the Supreme Court in Comcast Corp. v. Behrend,
supra but it may be definitively resolved next year by
the Supreme Court in Tyson Foods, Inc. v. Bouaphakeo
Docket 14-1126. The answer to this question may
thus determine whether class action procedure in the
18 Hollick, supra 173.
19 Western Canadian Shopping Centres, supra 555.
20 Hollick, supra 171. Newberg on Class Actions § 3:3.
Concurrences N° 1-2016 I International I David R. Wingfield I UK: What makes claims eligible for inclusion in collective proceedings?
245
50. It will almost certainly be the case, therefore, that
the CAT will use objective criteria to ascertain class
membership. How that criteria is informed by the
determination of what issues are common is something
that can only be decided on a case-by-case basis.
But should the CAT conclude that a class cannot be
certified if it contains persons who do not or might not
have a claim based on the claimants’ theory of liability,
then in many cases a collective proceedings order will
be very challenging to obtain, potentially frustrating
Parliament’s intention in creating the collective
proceedings regime.
4. Preferability in comparison
to other available proceedings
51. Almost by definition representative proceedings
are permitted only when they are preferable to
individual proceedings. This follows from the fact that
individual proceedings are the norm and representative
proceedings the the exception and are permitted under
the procedural rules of those jurisdictions that authorise
such proceedings because they have made a policy choice
that in some circumstances representative proceedings
are preferable to individual proceedings. For this reaon,
all class action jurisdictions contain a preferability
requirement, in the criteria that are used to authorise a
class proceeding.
52. This is why so much of Tribunal Rule 79(2) is
concerned—either
implicitly
or
expressly—with
determining whether a proposed collective proceeding is
preferable to other proceedings for resolving the dispute
by comparing the proposed collective proceeding to
another form of proceeding. For example:
– The “appropriateness” requirement in Rule 79(2)
(a) implies the question: “in comparison to what
alternative proceeding”?
– The costs and benefits analysis required by
Rule 79(2)(b) also implies the question: “in
comparison to what alternative”?
53. Moreover, the question posed in Rule 79(2)(c) of
whether there are any separate proceedings making
similar claims is relevant to determining whether
collective proceedings are preferable than the existing
proceedings to address the common issues raised by the
separate proceeding.
54. And the availability of alternative dispute resolution
or other means of resolving the dispute in Rule 79(2)(g)
is relevant only in comparison to the proposed collective
proceedings.
55. Nevertheless, how the CAT will conduct a preferability
analysis under Rule 79 is very much an open question.
Amongst other things,the CAT will have to decide
whether (i) different types of claims (money damages
versus injunctive relief) demand different preferability
analyses, (ii) common issues need to predominate or just
be open for resolution, and (iii) a collective proceedings
needs to provide a superior method of resolving the
dispute or only some benefits that are not available with
individual litigation.
56. In addressing these issues, however, the CAT
may benefit from considering how United States or
Canadian courts approach the preferability issue under
their respective class action procedures. At the risk of
oversimplification, US law exhibits a preference for
individual proceedings over representative proceedings to
resolve money damage claims even when representative
proceedings might be more efficient. Conversely, Canadian
law exhibits a preference for representative proceedings
to resolve any dispute whenever these proceedings are
shown to be more efficient than individual proceedings
to resolve a matter of fact or law common to the class.
5. Aggregate damages
57. One of the matters the CAT is required to consider
as part of its eligibility analysis is whether the claims
for which a collective proceedings order are sought
are “suitable” for an aggregate award of damages.
This requirement is found in Tribunal Rule 79(2)(f).
58. This provision may influence very significantly
the availability of collective proceedings in the UK.
To understand why this is so it is necessary to understand
what aggregate damages are (and what they are not) and
how their availability is related to aggregate proof of
liability.
59. Aggregate damages is the concept that describes a
method of calculating individual damages on a classwide basis without requiring proof by individual class
members (except for proof they are members of the
class). It is a common class-wide method for calculating
individual damages.21
60. Aggregate damages are not the same as class damages,
however. Class damages are the total damages the class is
entitled to receive no matter how the damages are calculated.
For example, where a defendant is liable to pay a fixed sum
of money for the benefit of a group of people (to restore a
fund, for example) that sum represents the class damages.
Equally, where the defendant is liable for damages to many
people assessed on an individual basis, the sum of those
damages represents the class damages. Aggregate damages
arise only where the individual entitlement to damages is
derived from some methodology that can be applied to each
member of the class without the need for individual proof.22
21 Newberg on Class Actions § 12:4.
22 Ibid.
246
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United States returns to the days of Markt & Co.,
supra by requiring the certifying court to consider what
distinguishes the claims of the class members, and not
just what is common to them.
62. The absence of a common class-wide method for
calculating individual damages is not of itself fatal in
Canada or the United States to permitting an action to
proceed as a class action (although this position might be
changing in the United States as consequence of Comcast
Corp. v. Behrend, supra). Still, as things now stand, in the
United States this issue is relevant to whether common
issues predominate over individual issues in claims
seeking money damages and in Canada this issue is
relevant to whether a class proceeding is preferable to
individual actions for resolving the dispute.
63. Importantly, the availability of aggregate damages
is closely related to the availability of aggregate proof
of liability. These are often the two sides of the same
coin. Since class action procedure does not authorise
courts to award damages to persons who cannot
establish a cognisable injury, sometimes this injury
has to be established by proving that the defendant
caused a loss to a class of people without making any
individual determination of liability. When liability
cannot be established in this manner—either because
aggregate proof is unavailable as a matter of evidence
or the proof is not sufficiently reliable to capture just
those class members who have suffered the same harm—
then a class action may not be possible. Equally, where
damages cannot be calculated on a class-wide basis for
the competition law violation that has been found then a
class action may not be possible either.24
64. Therefore, the existence of an aggregate method
for determining liability has a significant effect on the
availability of class action procedure. For this reason
the substantive laws in some subject areas have been
influenced by the need to permit aggregate liability to be
calculated so that class action procedure might be made
effective. Laws designed to ensure that markets function
efficiently for the common welfare—such as securities
and antitrust laws—have been particularly influenced
by the need to ensure that they are compatible with class
action procedure.25
65. How the CAT will treat the availability of aggregate
damages in its suitability analysis is particularly
important as a result of the EU Damages Directive.26
The Directive gives a right of full compensation (and
prohibits overcompensation) to every person who was
harmed by an infringement of Articles 101 and 102 of
the TFEU. The Directive, however, permits defendants
to prove that claimants passed on an overcharge to
their customers and thus to defeat the claims of those
claimants on the basis that they suffered no damage as a
result of the overcharge.27
Ce document est protégé au titre du droit d'auteur par les conventions internationales en vigueur et le Code de la propriété intellectuelle du 1er juillet 1992. Toute utilisation non autorisée constitue une contrefaçon, délit pénalement sanctionné jusqu'à 3 ans d'emprisonnement et 300 000 € d'amende (art.
L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment and up to a € 300 000 fine (Art. L. 335-2 Code de la Propriété Intellectuelle). Personal use of this document is authorised within the limits of Art. L 122-5 Code de la Propriété Intellectuelle and DRM protection.
61. An example of aggregate damages is where a
defendant is liable for a misrepresentation affecting the
price of its securities in an efficient market. In this case it
is possible to calculate damages on an aggregate basis by
reference to the market price of the defendant’s securities
at two points in time and the numbers of its securities
bought or sold within the relevant period by any member
of the class without having to know anything more about
the individual members of the class.23
66. The Directive also gives a right of action for damages
to indirect purchasers for overcharges that are passed
on to them and imposes on these indirect purchasers
the burden of proving the existence and scope of such
passing-on. However, the Directive deems that these
indirect purchasers have established that an overcharge
was passed on to them—and hence that the defendant
is presumptively liable to pay them damages—by
demonstrating a few basic facts: that the defendant
committed an infringement of competition law resulting
in an overcharge to the direct purchaser from whom
the indirect purchaser purchased goods or services that
were affected by the overcharge. But these facts do not
establish what the compensable damages are that the
claimant has suffered.28 Therefore, should the CAT
decide that a collective proceedings order may be granted
only when it is possible to assess damages on an aggregate
basis this might very well prevent a collective proceedings
order being granted in many cases where the order might
otherwise seem to be procedurally appropriate to allow
for the efficient management of a dispute involving many
persons.
6. Opt-in or opt-out?
67. One of the most significant differences between the
UK collective proceedings regime and North American
class action practice consists in how opt-in or opt-out
rights are to be treated. Where opt-out rights exist
defendants will know the class of those to whom they are
liable as part of the proceeding and, with a high degree
of certainty, who they may have to litigate against or
settle with subsequently. On the other hand, where opt-in
rights are created defendants will know who the class of
people is with whom they are litigating or settling, but
will not know who else may have claims that will have to
be addressed in subsequent proceedings.
68. Tribunal Rule 79(3) requires the CAT (i) to determine
whether the collective proceedings should be opt-in or
opt-out, (ii) to make this determination by considering
all the factors it is required to consider as part of its
determination of whether a collective proceedings order
should be made at all, and (iii) in addition to these
23 Basic Inc. v. Levinson 485 US 224 (1988); Rumley v. British Columbia [2001]
3 SCR 184.
24 Wal-Mart Stores, Inc. v. Dukes, supra; Comcast Corp. v. Behrend, supra.
25 Richard A Nagareda, Class Certification in the Age of Aggregate Proof, New
York U Law Rev 84, 101 (2009); and see Amgen Inc. v Conn. Ret. Plans &
Trust Funds 133 S Ct 1184, 1193 (2013).
26 Directive 2014/104/EU on antitrust damages actions.
27 Directive 2014/104/EU on antitrust damages actions, Arts. 3, 12, 13.
28 Directive 2014/104/EU on antitrust damages actions, Art. 14.
Concurrences N° 1-2016 I International I David R. Wingfield I UK: What makes claims eligible for inclusion in collective proceedings?
247
69. As can be seen, this rule does not exhibit a preference
for opt-out rights over opt-in rights. Indeed, the opposite
may be the case: a preference for opt-in rights. In this way
the collective proceedings regime is quite different from
North American class action procedure.
70. In the United States class participation is mandatory
in certified class actions except when the claim is for
money damages. In those cases, along with the other
special procedural rules that are in place for class
action damages cases (common issue predomination
and procedural superiority), US procedure provides for
opt-out rights. Canadian class action rules provide for
opt-out rights in all cases. Those Canadian jurisdictions
that provide opt-in rights do so in order to give persons
who are not otherwise subject to the class action because
they reside out of the jurisdiction the right to participate.
No jurisdiction in North America favours opt-in rights
over opt-out rights. And no North American jurisdiction
ties the availability of opt-out or opt-in rights to any
considerations derived from the merits of the claim, the
size of damages, or other factors bearing on whether
the class action should or should not be certified.
71. This is because opt-out rights serve a different
purpose than opt-in rights do. Opt-out rights exist in
order to protect absent parties from having their rights
determined by a representative in a proceeding they
did not authorise and of which they do not approve—
to the extent that such protection is both possible given
the nature of the class claim and is desired by the absent
party as evidenced by his decision to opt-out of the
representative proceeding. Opt-out rights are therefore a
reflection of the principle that individual litigation is the
rule and representative litigation is the exception.
72. In contrast, opt-in rights permit parties who do not
have the ability to join litigation to participate in a claim
by agreeing to be represented in it. These rights may be
quite important where a class action is being certified
in order to settle claims, for example. Opt-in rights
are therefore a reflection of the principle that fairness
requires that similarly situated people be able to join
in a common action where it is practical to do so and
in a manner that is efficient for the adjudication of the
dispute.
73. Expressed simply, opt-out rights are designed to
protect individual autonomy when class litigation is
the most appropriate method of resolving a dispute
and opt-in rights are designed to permit participation
in litigation when class litigation is not otherwise the
most appropriate method or is not available to certain
persons. Understood in this way, then, it is difficult to see
how the various factors in Tribunal Rule 79(3) assist in
determining whether a collective proceedings should be
opt-in versus opt-out. Indeed, we reach Rule 79(3) only
248
after the CAT has made a determination that the claims
are suitable to be brought in collective proceedings and
that for this reason there are common issues of fact and
law that need to be resolved in a class proceeding for the
fair and efficient resolution of the claims of that class of
persons.
7. The evidentiary standard
for determining whether
collective proceedings
should be permitted
74. Tribunal Rule 79 does not contain any guidance about
the evidentiary threshold that a party seeking certification
of a collective proceeding needs to meet. It would appear,
however, that in practice the test will be at least as
demanding as the test applicants have to meet under US
Federal Rule 23, and perhaps be more demanding still,
and far more demanding than applicants have to meet
under Canadian class action rules. To understand why
this is so it is necessary to understand what evidence the
courts of the United States and Canada require before
deciding whether to certify proposed claims as class
actions.
75. The courts in the United States and Canada accept that
class actions are procedural devices only. These courts
also accept that the person seeking certification must
demonstrate compliance with the certification tests in the
class action rules. They also accept that to demonstrate
compliance with the certification tests the applicant
needs to do more than simply plead facts that meet
these tests. Instead, the applicant must adduce some
evidence that satisfies the test. So far the courts of the
United States and Canada are in agreement. Where they
disagree—and it is a profound disagreement—is over the
evidentiary standard which the party seeking certification
must satisfy to establish that the factual elements of the
certification test have been met.
76. In the United States the applicant must prove
(“affirmatively demonstrate”) compliance with each and
every provision of US Federal Rule 23 that applies to his
case. The party seeking certification “must be prepared to
prove that there are in fact sufficiently numerous parties,
common questions of fact or law, etc.” as required by US
Federal Rule 23. The court that is seized with the task of
determining whether to certify the claim as a class action
therefore has to perform a “rigorous analysis” to be
assured that the provisions of Rule 23 have been satisfied
by the party seeking certification.29
77. The position in Canada, in contrast, is far more
lenient. All the party seeking certification need to do
in Canada is “to show some basis in fact for each of the
certification requirements (…) other than the requirement
that the pleadings disclose a cause of action.” The “some
29 Wal-Mart Stores, Inc. v. Dukes, supra 2551.
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L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
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factors to consider (a) the strength of the claims, and
(b) whether it is practicable for the proceedings to be
brought as opt-in collective proceedings, having regard
to all the circumstances, including the estimated amount
of damages that individual class members may recover.
78. The difference between the American and Canadian
approaches to the certification requirements means that
the type of evidence and nature of the inquiry into the
sufficiency of that evidence at the certification stage
is quite different in the two countries. The practice in
the United States is to conduct a detailed inquiry that
frequently requires the court to consider the merits of the
dispute and not, as is the case in Canada, just the form
of the action. As explained by the United States Supreme
Court “[T]he class determination generally involves
considerations that are enmeshed in the factual and legal
issues comprising the plaintiff’s cause of action.”31
79. As part of the certification process under Tribunal
Rule 79 the CAT is required to conduct an evaluation of the
merits of the claims for the proposed collective proceedings
in two circumstances. One circumstance is when the CAT
is determining whether the collective proceedings should
be opt-in or opt-out under Rule 79(3)(b). The other
circumstance is in response to an application for summary
judgment under Rule 79(4)(b) when certification is being
sought and before any defence is filed.
80. To evaluate the merits of the claims under either of
these rules the CAT may have to review and consider a
considerable amount of evidence relating to the theory
of harm being advanced by the claimants. This evidence
may—and indeed usually will—include expert evidence
about the existence or extent of geographical or product
markets or about a defendant’s market power, including
evidence of elasticities of demand and substitutability.
The CAT may have to review and consider evidence
about the volume of commerce in particular geographic
or product markets. It may have to consider direct
or indirect evidence of illegal pricing conduct or
exclusionary behaviour. It may have to consider evidence
addressing class-wide harm or individual evidence
addressing individual harm. Indeed, in an area of the law
concerned with market behaviour, the nature and type of
evidence that might be relevant to a competition claim is
as endless and variable as the market itself.
81. It is difficult to see how the CAT could come to a
reasoned conclusion about the strength or quality of
evidence about the merits of a proposed collective
proceedings claim—especially if the evidence consists
of expert evidence about the availability of aggregate
proof as in Comcast, supra—without also having this
30 Hollick, supra 171, 175; Pro-Sys Consultants Ltd. v. Microsoft, [2013] 3 SCR
477 § 102.
conclusion spill over into its evaluation of the factors
found in Rule 79 for granting a collective proceedings
order in the first place.
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L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
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basis in fact” test represents a very low threshold; meeting
this threshold does not require the applicant to prove
any facts on a balance of probabilities, for example.
Rather, the applicant just has to demonstrate—beyond
a mere assertion in the pleadings—the existence of facts
supporting the certification tests. This low threshold
reflects the fact that at the certification stage “the court is
ill-equipped to resolve conflicts in the evidence or to engage
in the finely calibrated assessments of evidentiary weight.”30
82. In some circumstances this will not create any
injustice. Where, for example, a proposed collective
proceedings involves claims for follow-on damages for
breaches of EU or UK competition law that include
findings from the relevant competition authority about
the existence and extent of illegal overcharges, it may be
that all the evidence needed for advancing the claims is in
the possession of the claimants. In such a case, requiring
the claimants to prove that their claims are strong before
obtaining a collective proceedings order would not seem
to be overly burdensome.
83. On the other hand, claimants suing a defendant for
having caused them damage in breach of EU or UK
competition law may require evidence that is uniquely in
the possession of or under the control of the defendants in
order to prove the strength of their claims. The claimants
will need discovery from the defendants and perhaps
others to do this. Obtaining this evidence might be possible
only if a collective proceedings order is first granted,
however, which might not happen because the evidentiary
weaknesses in the case at the certification stage might be
used as a factor not to grant such an order at all.
84. Consequently, the requirement that the CAT conduct
a “strength test” of the claims before deciding whether
to make the collective proceedings an opt-in or opt-out
proceedings, or to hear an application for summary
judgment at the hearing of the application for a collective
proceedings order and before any defence is filed may
thus turn the certification process under the Tribunal
Rules into a far more extensive and searching review of
the evidence that supports a claim than occurs even in the
United States. In this way the requirement in Rule 79(3)
that the CAT look at the merits of the claims may
very well impose on the applicant seeking a collective
proceedings order a very high burden to demonstrate
that he has a strong case before he can obtain a collective
proceedings order at all.
V. Conclusion
85. Efficient markets and accurate pricing signals are
essential to the functioning of a modern economy
and for the creation and distribution of wealth in this
economy. Competition laws exist so that the benefits
of lower prices, higher quality products and services,
more choices, and greater innovation, may be achieved
through efficient market mechanisms.
86. Since competition laws are designed to ensure that
markets are not distorted by anti-competitive conduct,
the private enforcement of these laws needs to be
effective. That is why class action procedures have
become so important to the enforcement of competition
law in the United States and Canada.
31 Wal-Mart Stores, Inc. v. Dukes, supra citing other cases.
Concurrences N° 1-2016 I International I David R. Wingfield I UK: What makes claims eligible for inclusion in collective proceedings?
249
87. Whether collective proceedings will have an important
or a minor role to play in the future of competition law
litigation and private enforcement in the UK will depend on
how the CAT uses the powers granted it under the amended
Competition Act 1998 and the new Tribunal Rules.
250
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L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
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88. Since some of these powers seem designed to facilitate
the use of class action procedure and others designed to
limit the use of this procedure, the early cases will likely
determine whether the CAT will exercise these powers
robustly or instead will render these powers infirm. n
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Jacques Attali, Elie Cohen,
Claus‑Dieter Ehlermann, Ian Forrester,
Eleanor Fox, Laurence Idot, Frédéric
Jenny, Jean-Pierre Jouyet, Hubert Legal,
Mario Monti, Margrethe Vestager,
Bo Vesterdorf, Louis Vogel, Denis Waelbroeck,
Marc van der Woude...
Interviews
Sir Christopher Bellamy, Thierry Dahan,
Jean-Louis Debré, John Fingleton,
François Hollande, Frédéric Jenny,
William Kovacic, Neelie Kroes,
Christine Lagarde, Emmanuel Macron,
Ségolène Royal, Nicolas Sarkozy,
Christine Varney...
Dossiers
Jacques Barrot, Jean-François Bellis,
David Bosco, Murielle Chagny, John Connor,
Damien Géradin, Assimakis Komninos,
Christophe Lemaire, Ioannis Lianos,
Pierre Moscovici, Jorge Padilla, Emil Paulis,
Robert Saint-Esteben, Jacques Steenbergen,
Florian Wagner-von Papp, Richard Whish...
Articles
Guy Canivet, Emmanuelle Claudel,
Emmanuel Combe, Thierry Dahan,
Luc Gyselen, Daniel Fasquelle, Barry Hawk,
Nathalie Homobono, Laurence Idot,
Frédéric Jenny, Bruno Lasserre,
Luc Peeperkorn, Anne Perrot, Nicolas Petit,
Catherine Prieto, Patrick Rey, Joseph Vogel,
Wouter Wils...
Pratiques
Tableaux jurisprudentiels : Bilan de la pratique
des engagements, Droit pénal et concurrence,
Legal privilege, Cartel Profiles in the EU...
International
Germany, Belgium, Canada, China,
Hong‑Kong, India, Japan, Luxembourg,
Switzerland, Sweden, USA...
Chroniques
Ententes
Ludovic Bernardeau, Anne-Sophie Choné
Grimaldi, Michel Debroux, Etienne Thomas
Pratiques unilatérales
Frédéric Marty, Anne-Lise Sibony,
Anne Wachsmann
Pratiques commerciales
déloyales
Frédéric Buy, Muriel Chagny, Valérie Durand,
Jean-Louis Fourgoux, Jean-Christophe Roda,
Rodolphe Mesa, Marie‑Claude Mitchell
Distribution
Nicolas Ereseo, Dominique Ferré,
Didier Ferrier, Anne-Cécile Martin
Concentrations
Olivier Billard, Jean‑Mathieu Cot,
Ianis Girgenson, Jacques Gunther,
Sergio Sorinas, David Tayar
Aides d’État
Jacques Derenne, Bruno Stromsky,
Raphaël Vuitton
Procédures
Pascal Cardonnel, Alexandre Lacresse,
Christophe Lemaire
Régulations
Laurent Binet, Hubert Delzangles,
Emmanuel Guillaume, Jean-Paul Tran Thiet
Mise en concurrence
Bertrand du Marais, Arnaud Sée
Secteur public
Jean-Philippe Kovar, Francesco Martucci,
Stéphane Rodrigues
Jurisprudences
européennes et étrangères
Karounga Diawara, Pierre Kobel,
Silvia Pietrini, Jean-Christophe Roda,
Per Rummel, Julia Xoudis
Politique internationale
Sophie‑Anne Descoubes, Marianne Faessel,
François Souty
Livres
Sous la direction de Stéphane Rodrigues
Droit & économie
Emmanuel Combe, Philippe Choné,
Laurent Flochel, Frédéric Jenny,
Gildas de Muizon, Jorge Padilla,
Penelope Papandropoulos, Anne Perrot,
Etienne Pfister, Francesco Rosati, David Sevy,
David Spector...
Revues
Christelle Adjémian, Mathilde Brabant,
Emmanuel Frot, Alain Ronzano, Bastien Thomas
Tarifs 2016
HT
TTC
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