Abstract
The chapter describes the main contents of the Recommendation and the Communication issued in June 2013 by the European Commission on the topic of collective redress with the view to outlining a set of common and harmonized principles that should inspire Member States in their respective regulations on group actions for the judicial enforcement of rights granted under EU law. It remains to be seen whether these principles are a step forward in the direction of a coherent, pan-European framework of group actions.
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- 1.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Towards a European Horizontal Framework for Collective Redress’, COM(2013) 401/2. http://ec.europa.eu/justice/civil/files/com_2013_401_en.pdf. Accessed 11 January 2015.
- 2.
Commission Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law, C(2013) 3539/3. http://ec.europa.eu/justice/civil/files/c_2013_3539_en.pdf. Accessed 11 January 2015. For some general comments on the Commission’s Communication and Recommendation, see Voet, Stefaan. 2014. European Collective Redress: A Status Quaestionis, International Journal of Procedural Law 4: 97–128; Jones, Graham. 2014. Collective Redress in the European Union: Reflections from a National Judge, Legal Issues of Economic Integration 41: 289–304.
- 3.
Proposal for a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, COM(2013) 404 final, 2013/0185 (COD). http://eur-lex.europa.eu/LexUriServ/LexUriServ.do? uri = COM:2013:0404:FIN:EN:PDF. On 26 November 2014 a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union was signed into law: the text is available at http://ec.europa.eu/competition/antitrust/actionsdamages/damages_directive_final_en.pdf. Accessed 11 January 2015.
For clarity’s sake, it is worth mentioning that directives are one type of ‘legal acts’ that European Union institutions can adopt. According to Article 288 of the Treaty on the Functioning of the European Union: ‘A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.’ Put simply, directives must be implemented by national legislators. The implementation of directives, that is, their ‘transposition’ into the laws of Member States, must take place within a deadline. In case of untimely or defective transposition, the European Commission can initiate an infringement procedure against the defaulting Member State in the European Court of Justice: see Sprungk, Carina. 2013. Legislative Transposition of Directives: Exploring the Other Role of National Parliaments in the European Union, JCMS: Journal of Common Market Studies 51: 298–315. Craig, Paul- de Búrca, Gráinne. 2011. EU Law: Text, Cases and Materials (5th edn.). Oxford: Oxford University Press, 191–216.
- 4.
See Section 1.2. of the Communication, at p. 4.
- 5.
Reference is made to the so-called ‘Loi Hamon’ (Statute no. 2014–344) concerning consumer law and adopted in March 2014. See Amrani-Mekki, Soraya. 2014. Décret sur l’action de groupe. La procedure… enfin!, La Semaine Juridique, no. 42: 1822–25; Haeri, Kami-Javaux, Benoît. 2014. L’action de groupe à la française, une curiosité, La Semaine Juridique, no. 13: 586–89; Rebeyrol, Vincent. 2014. La nouvelle action de groupe. Recueil Dalloz, no. 16: 940–46; Piedelièvre, Stéphane. 2014. La loi du 17 mars 2014 et l’action de groupe, La Gazette du Palais, no. 2: 829–31.
- 6.
It seems appropriate to emphasize that the ‘opt-in’ system adopted by the French legislators is quite peculiar, since class members must join the action (meaning, they must opt-in) at a late stage of the judicial proceeding, that is, after the judgment finding against the defendant has been issued: group members who choose to ‘accept’ the judgment by a formal act by which they express their will to join the action de group shall receive compensation for the loss suffered, and shall be bound by the res judicata effect of the judgment. It has been argued that the French model of group action is ‘a de facto opt-out system’, since class members are not required to do anything during the development of the proceeding, and are expected to ‘show up’ (so to say) only if they are inclined to accept the judgment and receive their share of damages: for this interesting thesis, see Nagy, Csongor István. 2014. The European Collective Redress Debate after the European Commission’s Recommendation: One Step Forward, Two Steps Back? (unpublished manuscript on file with the author), at 8.
- 7.
See n. 37 below.
- 8.
See European Parliament resolution of 2 February 2012 on ‘Towards a Coherent European Approach to Collective Redress’ (2011/2089(INI)). http://www.europarl.europa.eu/sides/getDoc.do?pubRef = -//EP//NONSGML + TA + P7-TA-2012-0021 + 0 + DOC + PDF + V0//EN. Accessed 11 January 2015.
- 9.
See Section 1.1. of the Communication, at p. 2.
- 10.
Reference in the text is made to the Green Paper – Damages actions for breach of the EC antitrust rules, Brussels, 19.12.2005, COM(2005) 672 final (http://eur-lex.europa.eu/LexUriServ/site/en/com/2005/com2005_0672en01.pdf. Accessed 11 January 2015), and to the White Paper on Damages actions for breach of the EC antitrust rules, Brussels, 2.4.2008, COM(2008) 165 final. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri = COM:2008:0165:FIN:EN :PDF. Accessed 11 January 2015.
- 11.
See White Paper on Damages actions for breach of the EC antitrust rules, n. 5 above, at 2.1., p. 4.
- 12.
Directive 98/27/CE has been repealed and replaced by Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (Codified version). http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri = OJ:L:2009:110:0030:0036:EN:PDF. Accessed 11 January 2015. The literature on the so-called Injunction Directive is extensive: see, among others, Hodges, Christopher. 2008. The Reform of Class and Representative Actions in European Legal Systems. A New Framework for Collective Redress in Europe. Oxford: Hart Publishing. 93–115; Cafaggi, Fabrizio and Micklitz, Hans-Wolfang (eds.). 2009. New Frontiers of Consumer Protection – The Interplay between Private and Public Enforcement. Cambridge-Antwerp-Portland: Intersentia; Cafaggi, Fabrizio, Micklitz, Hans-Wolfang. 2008. Collective Enforcement of Consumer Law: A Framework for a Comparative Assessment, European Review of Private Law 16: 391–425.
- 13.
See Arts. 2–3 of Directive 2009/22/EC, n. 12 above.
- 14.
See Report from the Commission to the European Parliament and the Council concerning the application of Directive 2009/22/EC of the European Parliament and of the Council on injunctions for the protection of consumers’ interest, Brussels, 6.11.2012, COM(2012) 635 final. http://ec.europa.eu/consumers/enforcement/docs/report_inj_2012_en.pdf, at para. 6, p. 16. Accessed 11 January 2015.
- 15.
See ibid., at para. 3.3.a), p. 9.
- 16.
See Green Paper on Consumer Collective Redress, Brussels, 27.11.2008, COM(2008) 794 final. http://ec.europa.eu/consumers/redress_cons/greenpaper_en.pdf, at para. 15, p. 5. Accessed 11 January 2015.
- 17.
Report from the Commission, n. 14 above, para. 3.17, p. 6.
- 18.
The definition of class actions as ‘toxic cocktails’, that is, a deadly combination of dangerous elements, such as punitive damages, contingency fees, pretrial discovery and the like, comes from a press release accompanying the Green Paper on Consumer Collective Redress: see Green Paper on Consumer Collective Redress – Questions and Answers, memo/08/741, Brussels, 27 November 2008. http://europa.eu/rapid/press-release_MEMO-08-741_en.htm, at § 9. Accessed 11 January 2015.
- 19.
See extensively the essays prepared for the session on Cultural Dimensions of Group Litigation of the IAPL World Conference on Civil Procedure, 18–21 September 2012, Moscow, Russian Federation, and published in Maleshin, Dmitry (ed.). 2012. Civil Procedure in Cross-Cultural Dialogue: Eurasia Context. Moscow: Statut, 413–548.
- 20.
See sec. II, Definitions and scope, of the Recommendation, para. 3.
- 21.
See ibid., para. 3 ‘(b): “mass harm situation” means a situation where two or more natural or legal persons claim to have suffered harm[-]causing damage resulting from the same illegal activity of one or more natural or legal persons’.
- 22.
See sec. I, Purpose and subject matter, of the Recommendation, para. 2.
- 23.
See ibid., para. 3 (d); also sec. III, Principles common to injunctive and compensatory collective redress, of the Recommendation, para. 4–7 ‘Standing to bring a representative action’.
- 24.
See sec. III, Principles common to injunctive and compensatory collective redress, of the Recommendation, para. 8–9 ‘Admissibility’.
- 25.
See ibid., para. 10–12 ‘Information on a collective redress action’.
- 26.
See ibid., para. 13 ‘Reimbursement of legal costs of the winning party’.
- 27.
See ibid., para. 14–16 ‘Funding’. Third-party litigation funding (often referred to as TPLF) is one of the ‘new frontiers’ of financing litigation: quite popular in common law jurisdictions, TPLF does not seem to have conquered the civil law world yet. TPLF in practice may take different forms that share a common feature: at their basis there is always a contract by which the plaintiff commits himself to grant the third party a percentage of the amount of money he will recover in case of victory in the lawsuit; in exchange, the third party relieves the plaintiff of the financial risk of litigation, since the third party will not be entitled to claim any money if the outcome of the case is against the plaintiff. For an accurate analysis of TPLF, see De Morpurgo, Marco. 2011. A Comparative Legal and Economic Approach to Third-Party Litigation Funding. Cardozo Journal of International and Comparative Law 19: 343–412.
- 28.
See sec. IV, Specific principles relating to injunctive collective redress, of the Recommendation, para. 19 ‘Expedient procedures for claims for injunctive orders’ and para. 20 ‘Efficient enforcement of injunctive orders’.
- 29.
See ibid., para. 20 ‘Efficient enforcement of injunctive orders’.
- 30.
The French astreinte was originally devised by courts in order to overcome the rule laid down by the Civil Code (Art. 1142) according to which failure to comply with legal duties to do something or to refrain from doing something has no consequences other than the right for the creditor to claim damages, since the debtor’s will cannot be forced. The penalty amounting to a fine for each day of delay courts can impose works as an effective threat that is likely to persuade the debtor to comply with his duties. At present, courts are allowed to resort to the ‘persuasive’ force of astreintes in a wide variety of situations, well beyond the specific circumstances of their initial use. See Perrot, Roger. L’astreinte à la française. 2004. In Mélanges Jacques van Compernolle. 487–510. Brussels: Bruylant; Desdevises, Yves. 2004. Astreintes – Introduction, JurisClasseur Procédure Civile, 2120.
- 31.
See European Parliament resolution of 2 February 2012 on ‘Towards a Coherent European Approach to Collective Redress’, n. 8 above, at § 11.
- 32.
See sec. V, Specific principles relating to compensatory collective redress, of the Recommendation, para. 21–24, at 21 ‘Constitution of the claimant party by “opt-in” principle’.
- 33.
On the debate at the European level, see, e.g., Benör, Iris. 2013. Consumer Dispute Resolution after the Lisbon Treaty: Collective Actions and Alternative Procedures, Journal of Consumer Policy 36: 87–110; Tzakas, Dimitrios-Panagiotis. 2011. Effective Collective Redress in Antitrust and Consumer Protection Matters: A Panacea or A Chimera?, Common Market Law Review 48: 1125–1174; Hodges, Christopher. 2010. Collective Redress in Europe: The New Model, Civil Justice Quarterly 29: 370–387; Stuyck, Jules. 2009. Class Actions in Europe? To Opt-In or To Opt-Out, That is the Question, European Business Law Review 20; 483–505; Fairgrieve, Duncan & Howells, Geraint. 2009 Collective Redress Procedures – European Debates, International and Comparative Law Quarterly 58: 379–409.
- 34.
See § 3.4 of the Communication, at p. 12.
- 35.
See ibid.
- 36.
See sec. V, Specific principles relating to compensatory collective redress, of the Recommendation, para. 21–24, at 21 ‘Constitution of the claimant party by “opt-in” principle’.
- 37.
On the different models of group actions adopted in Member States, see, in general, Werlauff, Eric. 2013. Class Actions and Class Settlement in a European Perspective, European Business Law Review, 24: 173–186; Mulheron, Rachael. 2009. The Case for an Opt-Out Class Action for European Member States: A Legal and Empirical Analysis, Columbia Journal of European Law 15: 409–451. One of the most interesting and successful opt-out collective procedures existing in the European Union is the one provided for by the Dutch Act on the Collective Settlement of Mass Damage Claims (known as WCAM) that dates back to 2005. In short, according to the Act a collective settlement agreement can be negotiated between one or more entities – representing a class of individuals who were identically harmed by the defendant – and the defendant. Once a settlement agreement is reached, the parties may jointly request the Amsterdam Court of Appeal to declare the collective settlement binding on the class, except for those class members who have expressed their wish not to be bound by the agreement, that is, those who have decided to opt out within the time-limit set by the court; on this procedure, see van Boom, Willem H. 2009. Collective Settlement of Mass Claims in The Netherlands. In Auf dem Weg zu einer europäischen Sammelklage?, eds. Casper, Matthias, Janssen, André, Pahlmann, Petra, Schulze, Reiner, 171–192. Munich: Sellier.
- 38.
See sec. V, Specific principles relating to compensatory collective redress, of the Recommendation, para. 25–28 ‘Collective alternative dispute resolution and settlements’.
- 39.
The Recommendation makes reference to Directive 2008/52/EC on certain aspects of mediation in civil and commercial cases, whose Art. 5, sec. 1 provides: ‘A court before which an action is brought may, when appropriate and having regard to all the circumstances of the case, invite the parties to use mediation in order to settle the dispute.’ More generally, Member States are advised to take into account all the requirements laid down by the Directive.
- 40.
See sec. V, Specific principles relating to compensatory collective redress, of the Recommendation, at para. 26 ‘Collective alternative dispute resolution and settlements’.
- 41.
On the vicissitudes of mediation in Italy, see Silvestri, Elisabetta & Jagtenberg, Rob. 2013. Tweeluik – Diptych: Juggling a Red Hot Potato: Italy, the EU, and Mandatory Mediation, Nederlands-Vlaams tijdschrift voor Mediation en conflictmanagement 17: 29–45.
- 42.
See sec. V, Specific principles relating to compensatory collective redress, of the Recommendation, at para. 28 ‘Collective alternative dispute resolution and settlements’.
- 43.
See ibid., para. 29–30 ‘Legal representation and lawyers’ fees’ and para. 32 ‘Funding of compensatory collective redress’.
- 44.
See ibid., para. 30.
- 45.
See ibid., para. 31 ‘Prohibition of punitive damages’.
- 46.
See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Towards a European Horizontal Framework for Collective Redress’, n. 1 above, at 3.1., p. 10.
- 47.
On this issue, see, e.g., Koziol, Helmut. 2008. Punitive Damages. A European Perspective. Louisiana Law Review 68: 741–764; Pinna, Andrea. 2008. Recognition and Res Judicata of US Class Action Judgments in European Legal Systems. Erasmus Law Review 1: 31–61, in particular 49–56.
- 48.
These comments on the documents issued by the Commission derive from Hodges, Christopher. 2014. Collective Redress: A Breakthrough or a Damp Squibb? Journal of Consumer Policy 37: 67–89.
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Silvestri, E. (2016). Group Actions À La Mode Européenne: A Kinder, Gentler Class Action for Europe?. In: Picker, C., Seidman, G. (eds) The Dynamism of Civil Procedure - Global Trends and Developments. Ius Gentium: Comparative Perspectives on Law and Justice, vol 48. Springer, Cham. https://doi.org/10.1007/978-3-319-21981-3_10
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