Interactions between competition law and private law

European Member states have to implement the Unfair Commercial Practices Directive (UCPD) by June 2007. However, the UCPD does not provide for a harmonised European fair trading law and raises many novel and difficult questions. The project deals with one of them: The consumer as a link between competition law (fair trading law and antitrust law) and private law. This perspective itself highlights issues of harmonisation, interactions and enforcement. Fair trading law and antitrust law both aim to ensure efficiency of the market. Both fields of law have a fundamental importance for the European economic system. Violations of competition law exclude competition or distort it. A working market ensures the success of the most efficient supplier because demand rewards efficient performance. The existence of cartels, monopolies and abuses of dominant market positions prohibits these positive effects of competition. Unfair commercial practices enable businesses to make profits without innovation and/or by distorting rational decisions of consumers, e.g. by using a misleading advertisement. Such distortions of competition are detrimental for all competitors acting within the legal framework and for consumers. Efficient legal provisions and their enforcement are therefore necessary to enhance over-all welfare. a. Content The project deals with the lack of co-ordination in existing and planed provisions in those fields of law: What is the relation between fair trading law and antitrust law? Fair trading law and antitrust law have previously been considered as two entirely autonomous fields in national legal systems. However, this view has been faded out in German and Austrian law. Numerous interactions, and in particular frictions, are recognised between these fields of law. However, there are still open questions: Which interactions between fair trading law and antitrust law do exist and what are their consequences? Can anti-competitive behaviour which does not yet breach antitrust law be regarded as unfair? Or does antitrust law ban the applicability of fair trading law? Are breaches of antitrust law ipso iure breaches of the act against unfair competition? What is the relation between competition law and private law? How does e.g. the UCPD affect national and (future) European contract law? How can private enforcement of antitrust law be co-ordinated with national tort law? Legal rules are only as good as their enforcement. What are the optimal enforcement mechanisms in fair trading law and antitrust law? Are there systematic reasons to enhance private enforcement by consumers and means of collective redress only with regard to antitrust law - as currently planed on a European level - and not with regard to fair trading law? b. Methodology First a comparison of national Austrian, German, English and Italian law has to be done to find the national attempts to theorize and deal with these questions. In the next step these solutions will have to be examined on the basis of objective and reasoned criteria to identify core tools and effective measures. Subsequently, an independent, innovative legislative approach and own solutions have to be developed. In sum: The project aims to systemize interactions between fair trading law, antitrust law and private law and the follow-on question of efficient enforcement from a consumer perspective. Starting from a comparative approach the project aims to contribute a puzzle piece to the future harmonisation of European law. But the principles evolving from the project shall also be a guideline for Austrian (and perhaps other national legislators) when applying and implementing current and forthcoming European legislation. Finally it is hoped that the results of this project will help stimulating Austrian legal discussion de lege ferenda.