La protection du consommateur par le droit de la concurrence: analyse civiliste et pratique des positions canadienne et européenne

Benjamin Lehaire

Revue internationale de droit économique, 2016, vol. t. XXX, issue 3, 289-313

Abstract: Competition law contributes to protect the consumers. European competition law proves the link between competition law and consumer law. The single market needs a protection of the European consumers. Nonetheless, all the occidental countries don?t know this link between the consumer law and the competition law. Canadian competition law illustrates this issue. Indeed, constitutionals barriers explain this difficulty. The Canadian parliament has a legislative power in the regulation of trade and commerce, but also in criminal law. So the Canadian competition law has been taking under the power in regulation of trade and in criminal law. In Canada, the consumer protection is provided by the provinces who can take a law to protect the consumer?s contracts. This power is based on the power of the Canadian provinces in civil law. The Quebec civil code and the consumer protection Act of this province shows this competence. There is, in Canada, a direct protection of the consumers by the provinces, like in Quebec, and an indirect protection by the federal competition law. For example, the misleading advertising is punishing under the criminal rules of the competition law. Another aspect of this subject is the private enforcement of the competition law. The section 36 of the competition law permits to the consumer to sue the person who had a conduct that was contrary to any provision of the criminal part of the law. The constitutional validity of this section was disputing at the Canadian Supreme Court. For the court, the section 36 was constitutional. Consequently, this section protects directly the consumer against a violation of the competition law. This paper tries to identify how the civil law, particularly in Quebec, can be used to improve the protection of consumers in the area of competition. The competition damages is one of the solutions can be explored. In this context, the comparison is made with European law. The Directive 2014/104 shows that consumer protection can take place in competition law. In a civil law system, such as France, the introduction of collective redress demonstrates that there may be a link between consumer law and competition law. This article finally shows that consumer protection occurs at two levels. The supranational law ensures healthy competition in the market and consumer safety. National law protects consumers in contractual relations. We find this situation in Canada and in the European Union. But in these two legal systems reconcile consumer law and competition law is done by the private enforcement of competition law. The article explores this new reality.

Keywords: competition law; civil law; consumer protection; private enforcement; European Union; Canada (search for similar items in EconPapers)
Date: 2016
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