Coordination of Private and Public Enforcement

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Prima facie, the co-existence of public and private enforcement and the coexistence of administrative, criminal and civil sanctions may appear reasonable. For, the more enforcement tools there are in the 'toolbox' the higher is the probability of detecting and remedying unfair commercial practices. Equally, stringent sanctions also lead to more deterrent effects. But to avoid over-enforcement and regulation overkill by opening the flood gates to a wave of civil, administrative and penal sanctions it is necessary to coordinate private and public enforcement.[1] Without such coordination we would face the real risk that resources might be wasted and public and private enforcement might impede each other. Therefore, the interrelation of public and private enforcement mechanisms has to be clarified and coordinated in an optimum way.

3.2.1 Exchange of information

This regards notably the exchange of information: Consistency in the application of the UCP Directive requires that arrangements be established for cooperation between the Member States' courts and the public authorities. This is relevant for all courts of the Member States, irrespective of whether they are applying national law based on the UCP Directive in lawsuits between private parties, acting as public enforcers or as review courts. In particular, national courts should have the power to request information from public authorities or, to the extent relevant for their decision, on points concerning the application of the unfair commercial practices law. The competent public authorities of the Member States should also be able to submit written or oral observations to courts called upon to apply the UCP Directive. Steps should therefore be taken to ensure that the competent authorities of the Member States are kept sufficiently well informed of proceedings before national courts. The involvement of public authorities as amicus curiae could be modeled in accordance with Article 15(3) Regulation 1/2003. Competition law also provides for another means of coordination: According to Article 16 Regulation 1/2003 Member States shall not take decisions running counter to the decision adopted by the Commission in a particular case.

3.2.2 Coordination in cross-border enforcement

Specific problems in coordinating private and public enforcement mechanisms arise in cross-border cases. According to the Regulation on Consumer Protection Cooperation, Member States are required to designate special public authorities that are responsible for enforcement in cross-border cases. Coordination is necessary if Member States take advantage of the opportunity of Article 4(2) of the Regulation on Consumer Protection Cooperation to grant private bodies legal standing in cases concerning the cessation or prohibition of intra-Union infringements. The German experience shows that coordination is necessary especially in regard to limitation periods which should consider the time required for communication between public authorities and the designated private bodies.[2]

Another sore point in this procedure is the determination of the applicable substantive law. Whilst in private law disputes the applicable law is determined on the basis of Article 6 of the Rome II Regulation, public bodies must apply principles of conflicts of public laws. Application of different conflicts principles might lead to different applicable laws on unfair commercial practices in one and the same procedure, at least in cases with relevance to third countries outside the European Union.

  • [1] In detail see Poelzig, Normdurchsetzung durch Privatrecht (n 6) 563 et seq. See Case C-360/09 Pfleiderer [2011] ECR I-5161; Case C-536/11 Donau Chemie [2013] OJ C 252/11; [2013] 5 CMLR 19.
  • [2] Report by the German Federal Government on the effectiveness of § 7 of the German Consumer Protection Enforcement Act ('VSchDG'), BT-Drs. 17/8982, 3.
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