Abstract
This essay deals with the enforcement of the prohibition of unfair trading practices in the business-to-consumer food supply chain by means of private law actions. This is a quite new issue, at least in Europe, which poses a number of problems, particularly in a cross-border context. The starting point in the analysis is that, by virtue of clear obligations EU food law provisions create for businesses, corresponding subjective rights arise upon consumers which must be protected by national courts. In this regard, since Member States generally do not provide for specific remedies, consumers have to rely on general doctrines on contract or tort. However, EU substantive law provisions themselves appear to be likely to grant appropriate protection to consumers. In particular, on the one hand, the final seller may be held liable in contract under the Consumer Sales Directive; on the other hand, consumers may directly rely on EU food information provisions in order to seek compensation for loss suffered as a result of infringement thereof. The private international law aspects of cross-border disputes arising out of unfair commercial practices are then thoroughly examined, with regard to both the jurisdictional and applicable law issues now dealt with, respectively, by EU Regulations Brussels I and Rome I and II, keeping in mind that uniform as well as adequate solutions to those issues can actually contribute to the smooth functioning of the European internal market. As regards the preliminary problem of characterisation, it is submitted that, faced with the wide variety of claims which may flow from unfair practices, in some circumstances – particularly for jurisdictional purposes – it may prove to be a complex issue, owing notably to the difficulties in drawing a straightforward demarcation line between contractual and tortious matters. It is argued that the EU private international law system is well-suited for individual consumers’ disputes, be they grounded on contractual or tortious liability. On the one hand, the jurisdictional criteria laid down in Brussels I enable the consumers to seize courts which not only are the closest to their interests, but also sit in the Member State whose market has been affected by the unfair commercial practice, thus ensuring fair competitive relations between traders therein. On the other hand, the pertinent connecting factors in Rome I and II lead to similar results as to the applicable law and, hence, allow a reasonable balance to be struck between the interests at stake. Moreover, effective enforcement of EU substantive provisions is ensured within the internal market, as these rules autonomously determine their own spatial scope of application in accordance with the goal served by them. By contrast, some concerns arise as to whether EU private international law facilitate aggregate litigation against multistate unfair practices which, by ensuring a more efficient level of compensation and deterrence, could however strengthen private consumer enforcement. Indeed, various procedural devices – to more or less degree modelled on the US-style class action – have been recently developed in several Member States or only drafted in other States. Brussels I appears to be ill-equipped to deal with multi-party litigation, essentially because it rests upon a conception of dispute resolution as individual. Consequently, a EU-wide class action may in practice be brought only in the courts of the Member State in which the defendant is domiciled. The sole alternative but less attractive option is actually to split up the EU-wide class comprising all the consumers who have been harmed by the same multistate unfair practice and to bring concurrent statewide sub-class actions in the courts of the different Member States concerned. Moreover, even if a multistate class action were brought at the place of the defendant’s domicile, the conflict rules in Rome I and II could cause a serious threat to aggregate litigation in that they lead to a multiplicity of substantive law being applicable on a distributive basis. However, it is questionable whether this is an absolute impediment to the admission of the group action. It is in particular suggested that, when the individual claims derive from EU substantive provisions, the commonality of legal issues requirement is satisfied, so that their aggregate treatment has to be allowed.