Part B Practical Approach to Consumer Participation, 4 Improving Consumers’ Role: ‘Standing’ and ‘Access to Evidence’
Chapter 4 alludes to the intrinsic characteristics of consumer claims in order to justify why consumer claims warrant a different treatment to claims from customers and competitors. Following the normative discussion, proposals focusing on passing-on and access to evidence are discussed in the light of the adopted EU Directive on Damages Actions. In regard to standing and passing-on, the Directive on Damages Actions has provided an overall satisfactory solution since the introduction of a rebuttable presumption in favour of indirect purchasers reveals a deterrence rationale and is capable of incentivizing consumers in competition litigation. As far as access to evidence and disclosure of evidence in the competition authority’s file is concerned, the adopted rules, while striking the right balance in relation to leniency material, seem unlikely to increase consumer involvement. The analysis in this chapter offers suggestions to improve this situation.