Bridging the Divide? Theories For Integrating Competition Law and Consumer Protection

"The integration of competition law and consumer protection has both substantive and systemic components. The substantive question is whether pursuing the end of consumer welfare optimisation through market regulation is consistent with pursuing the same end through regulating transactions. The systemic question is whether an agency or remedial scheme constituted to advance competition policy can also serve the purpose of protecting individual consumers or an agency or remedial scheme constituted to protect individual consumers is consistent with the larger goal of preserving competition.

In Section B, I discuss the meaning of consumer harm. The prevention of consumer harm is a goal of both competition law and consumer protection. What consumer harm means is remarkably under-theorised. In Section C, I address the following doctrinal and theoretical innovations and their place in the two fields. First is the common use of deception rationales in consumer protection and competition law enforcement. Second is the application of behavioural economics in both consumer protection and competition law enforcement. Third is market manipulation as a specific example of a hybrid competition/consumer protection

theory. Fourth and last is monopoly exploitation as a specific example of a hybrid competition/consumer protection theory. I then turn in Section D to the topic of enforcement systems. I inquire whether an agency created for competition law enforcement is appropriately situated to engage in consumer protection work. I also propose the possibility that private actions are better used in consumer protection than in competition law."