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New citations to this author. New articles related to this author's research. Email address for updates. My profile My library Metrics Alerts. Get my own profile Cited by View all All Since Citations h-index 16 11 iindex 20 Title Cited by Year Same menu, seperate tables: European Journal of Political Research 38 1 , , British Journal of Political Science 37 1 , , Journal of Common Market Studies 47 1 , , Collective action in the European Union: The transformation of governance in the European Union, , Irish Business and Society.
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Because of a lack of harmonisation at EU level, national judicial systems have, in the recent past, developed along very different lines. These differences cannot be attributed so much to divergences in basic principles but rather to different traditions as regards procedural law. It was on this occasion that the question of the establishment of a uniform system for actions for injunctions was examined in detail for the first time.
The Parliament also indicated that it would be appropriate to harmonise, to a certain extent, the conditions applicable to bringing actions for injunctions against illegal commercial practices. The suggestion that the scope of application be extended to include damages was not however followed up. In parallel, the Commission drew up an Action plan on consumer access to justice and the settlement of consumer disputes in the internal market , presented on 14 February , in which, having defined and described the problem of consumer disputes and studied the various solutions available at national level in the Member States, it listed a number of initiatives which it planned to launch.
It recognised the importance of out-of-court procedures for settling consumer disputes but drew attention to the need for the consumer, having exhausted all the out-of-court conciliation procedures, to be able to resort to ordinary court procedures in accordance with the principles of legal effectiveness and certainty. Consideration should therefore be given to ways in which these interests can be better protected by collective actions. Beyond the specific protection of consumer interests, collective actions can serve to consolidate a large number of smaller claims into one action, thereby saving time and money.
The Commission entrusted to the Consumer Law Studies Centre of the Catholic University of Leuven the task of drawing up a major study, recently published, on alternative dispute resolution ADR methods. The new European Commissioner with responsibility for consumer affairs, Meglena Kuneva, has announced in several declarations that this issue was one of the priorities of her term of office. The Council of Ministers of the OECD has also recently adopted a Recommendation on Consumer Dispute Resolution and Redress [C 74 of 12 July ], which acknowledges that most existing frameworks for consumer dispute resolution and redress in the Member States were developed to address domestic cases and are not always adequate to provide remedies for consumers from another Member State.
Why should collective actions be introduced at Community level? It should also be pointed out that the increase in the volume of cross-border trade has brought about an expansion of consumer litigation at EU level. In many cases, it is recognised that the settlement of litigation on an individual basis is an inadequate measure. The cost and the slowness of such settlements are major contributory factors in rendering consumer rights ineffective, particularly in cases where a multitude of consumers i. As things stand at present, improper practices which occur under identical circumstances and cause identical damage in several Member States may give rise to compensation only in those few Member States which have introduced a system of collective actions.
This right includes, inter alia, the right to have meaningful and effective access to the courts.
EUR-Lex - IE - EN - EUR-Lex
Under the existing legal systems, citizens cannot always contest, in concrete, practical terms, certain practices which are injurious to them and initiate court proceedings. Over a period of several decades, a number of Member States have introduced two types of response to address this problem. Initially, they recognised the right to protect the collective interests of consumers by bringing actions before administrative bodies or before courts and tribunals. A further appropriate response has also taken the form of recognition of a procedure under which individual actions are lumped together.
These actions mainly seek to bring about procedural savings by lumping together all of the actions and synthesising them into a single procedure. The creation of a European collective action would make it possible to provide access to justice to all consumers, irrespective of their nationality and financial situation and the amount of individual damage which they have suffered.
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It would also be beneficial to commercial operators in view of the procedural savings which could be achieved. The costs of such an action would be lower than the costs liable to be incurred as a result of a multitude of individual actions. Finally, such a measure would avoid contradictions in jurisprudence between courts in the different EU Member States called upon to settle similar cases. The introduction of a common system for all European countries would therefore make it possible to provide consumers with improved protection, whilst enhancing the confidence of the business world and, as a result, boosting trade within the EU.
The introduction of a European collective action, as defined above, would have a beneficial effect in respect of private international law in view of the difficulties in interpreting and applying the standards for resolving contractual and extra-contractual disputes Rome I and Rome II. This would apply, in particular, to the recent Unfair Commercial Practices Directive. Such practices are often used simultaneously in several Member States, causing harm to many consumers but giving them no opportunity to seek collective redress. Group action is a complementary procedure vital to the effective implementation of this directive.
All of the currently known directives in the field of consumer protection, as transposed into national law by the Member States, would therefore be made more effective by the recognition of collective actions in the fields covered by these directives. It would be desirable for small and medium-sized enterprises SMEs also to benefit from the application of the provisions in question as they, too, find themselves in a similar situation.
It goes without saying that the bringing of collective actions at EU level, as a final means of seeking to resolve disputes, in no way precludes recourse to systems of out-of-court settlement of consumer disputes. The latter measures have received the unqualified support of the EESC and their potential should be further explored in detail and further developed.
In order to be able to properly identify the subject of the proposal, agreement must be reached on the type of legal action in question. As the survey of the different systems adopted in the various Member States demonstrates, the designation and contents of the various types of action vary considerably. Representative actions can be brought only by consumer associations or administrative bodies the Ombudsman and similar bodies , with a view to securing the cessation of acts which infringe the rights of the consumer and even, in the case of some countries, securing the abolition of unfair or unlawful terms in consumer contracts.
Recourse to collective actions is not necessarily limited to just the fields of consumer protection and competition. As things stand at present, even though consumer law has mainly come into being on the basis of the benchmark Article 95 of the EC Treaty, consumer protection policy, as envisaged here, clearly represents a measure designed to promote the economic interests of consumers. There is no doubt that collective actions will provide a high level of protection and will enable consumer organisations to organise themselves with a view to protecting the interests of consumers, i.
This solution could be considered since collective actions could be used in the case of both cross-border disputes and national litigation and in fields other than that of consumer law. The collective action should, at all events, respect the principles of subsidiarity and proportionality; it should never go beyond the bounds of what is required to meet the objectives set out in the Treaty, insofar as such objectives cannot be adequately achieved by the Member States and are thus better realised by taking action at Community level. C 74 of 12 July , which are presented as common principles despite the diversity of legal cultures that exist in the Member States.
Representative actions are open only to a number of specially authorised bodies consumer associations and the Ombudsman. Under this procedure consumers are generally not able to obtain redress for damage suffered by individuals. The main aim of these procedures is to secure the cessation of acts which infringe consumer rights and even, in some countries, to secure the abolition of unfair or unlawful terms in consumer contracts in respect of which the courts are unable to make provision for any compensation.
Certain countries have made adjustments to these mechanisms in order to make it possible to compensate consumers. Such compensation is not, however, paid to individual consumers but retained by the representative bodies or paid to the State to be used for social purposes. Representative actions are thus, in practice, not to be equated with real collective actions, in which all consumers are compensated in a single legal proceeding.
The introduction of a European collective action must not result in the establishment in Europe of US style class actions. In the USA, court decisions are delivered by people's juries and elected judges. In the USA, the compensatory damages awarded may be accompanied by punitive damages. These damages, which are set by the juries and elected judges, frequently attain astronomical proportions.
Punitive damages are not applied in most EU Member States. Lawyers in the USA are remunerated by means of a generally applicable system of contingency fees. This system is prohibited — either by law or under lawyers' codes of professional conduct — in the majority of EU Member States. In the light of an examination of the collective action procedures adopted in the Member States, these procedures may be classified into two categories, depending on the main mechanism which underpins the initiation of the action and the intervention of the consumer in the procedure.
In the latter case, the consumer always retains the right to choose not to be covered by the procedure. The drawing-up of a European collective action thus inevitably involves selecting the mechanism which is to underpin such an action. Under the opt-in system the persons concerned have to make known their desire to be party to the procedure. The persons concerned must therefore make themselves known and expressly ask to be part of the action before the decision is delivered.
These procedures are similar to collective actions based on the opt-in principle since, in the case of test cases too, the persons concerned must make themselves known in order to be able to be party to the procedure and to lodge individual claims. The distinctive feature of the test case mechanism does, however, lie in the fact that the judge selects one of the individual claims and gives a ruling on that claim alone.
The ruling given under the test case procedure will then be applicable to all the other individual claims lodged with the court. Each member of the group in question has to make himself or herself known in order to be party to the procedure; the way in which this is done is generally by signing a register. It is therefore a question of making known an express desire to participate; this enables the procedure to be in line with the principle of freedom to take legal proceedings.
The plaintiff only takes action on behalf of the persons concerned once they have given their formal agreement. Under the opt-in method, the foreseeable extent of the damages at stake may be determined ex ante. This is important for the defendants who are directly concerned by the claim for compensation, generally, and it enables them to take out insurance policies to cover part of the potential damages. Sufficient funds will therefore be held in reserve to meet legitimate compensation claims. These mechanisms are difficult to administer and are expensive: The management of the individual files becomes a complex matter once a large number of persons in involved.
This leads to very long procedural delays since the court has to organise and deal with each of the individual dossiers. In the case of mass litigation, from which most collective actions derive, the damages suffered by individuals are relatively homogenous and frequently do not need to be examined on an individual basis.
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Turning to the test case procedure, the judge does not always lay down the amount of compensation due and sometimes transfers cases to individual procedures. This gives rise to administrative problems and extends the time limits of the procedure. Furthermore, an analysis of collective actions under the opt-in procedure and the test cases instigated in those states which provide for such a mechanism shows that a large proportion of consumers do not lodge a claim before the courts because they do not have proper information on the existence of the procedures in question.
A large proportion of the persons concerned also refuse to initiate legal proceedings because of the material, financial and psychological obstacles thrown up by legal proceedings demands as regards time and money and the fact that the whole matter is extremely complex.
There is therefore a sizeable drop-out rate between the number of persons who really do take action and the potential number of persons concerned. The compensation for damages awarded to consumers is therefore incomplete and any profit unlawfully acquired by commercial operators as a result of the practice in question may, in large, part be retained by them. The deterrent goal of the procedure is not achieved. These procedures also give rise to a problem with regard to the relative effect of the judgement delivered.
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The decision delivered in connection with a collective action will be applicable only to those persons who were party to the action. Consumers who had not made themselves known will therefore be fully at liberty to initiate individual actions which could give rise to decisions which are in contradiction with those secured in the case of the collective action. A number of European States have drawn up a sui generis procedure in respect of collective actions based on the abovementioned system.