Our legal powers

Super-complaints

The Enterprise Act of 2002 enabled named consumer organisations to make what are called super-complaints to the Office of Fair Trading (OFT).

Consumers' Association (the former campaigning name of Which?) was among the first groups granted these new powers.

A super-complaint can be made about any market that is not working properly for consumers.

For example, the goods and services provided by a market might be very complex, making it hard or impossible for consumers to make comparisons, or information may be hard to access, preventing people making informed decisions.

Alternatively there may be barriers to entering a market which may make it hard for new firms to come in and provide effective competition to existing companies.

Because individuals are often unaware of the problems caused by these and other failures, and are not in a position to overcome them, it is essential for consumer organisations such as Which? to have the power to investigate and make a super-complaint.

The organisation making the complaint must provide a well argued case, though need not provide all the evidence of a problem. The OFT then has 90 days in which to assess the complaint and decide what to do about it. It can reject the complaint in part or as a whole, it can launch a market investigation, take action under competition law or consumer law, or refer the market to the Competition Commission for further investigation.

We made the first ever super-complaint about private dentistry in 2001 and have since made complaints about care homes, the Northern Ireland banking sector and credit card interest calculation methods.

Part 8 powers – stopping rogue traders in their tracks

Which? also has legal powers to bring rogue traders to account for their actions under Part 8 of the Enterprise Act 2002.

The Enterprise Act was an important piece of legislation, aiming to make it easier for bodies such as local Trading Standards and the OFT to stop rogue traders when they damage consumers’ interests. Which? also applied for the powers and we were granted them in May 2005.

The powers mean that we can investigate bad behaviour by a firm and, following negotiations, ask them to stop their bad practices. If the firm fails to comply with this undertaking, we could apply to court to have an order placed against the trader for breaking the undertaking. We haven’t used this power to date.

Representative action in competition cases

Since 20 June 2003, under the Enterprise and Competition Acts, a 'specified body' may bring proceedings before the Competition Appeals Tribunal (CAT) on behalf of two or more consumers for damages. Which? was granted specified body status on October 1 2005 by the Ministers of the Department of Trade and Industry.

A red card for price fixing from Which? Campaigns Lawyer Ingrid Gubbay and Online Editor Malcolm Coles

Before Which? can commence proceedings before the CAT for damages, the OFT or other sectoral regulators, the European Commission or CAT need to have ruled that an infringement of UK or EU competition law took place and appeal concluded.

This enables Which? to present the case that affected consumers should be paid damages for, say, infringements such as price fixing between cartels, and collect and distribute the funds to consumers. In April 2007 we launched our first representative action on behalf of consumers unlawfully overcharged for football shirts due to price fixing.

More information:

Super-complaints (external site) More information on super-complaints on the Office of Fair Trading website.