European Union: Brave New Old World - Collective Redress In Europe - Part 2

Last Updated: January 10 2012
Article by Louise Moher
This article is part of a series: Click Brave New Old World - Collective Redress In Europe - Part 1 for the previous article.

COLLECTIVE REDRESS LEGISLATION OF MEMBER STATES OF THE EUROPEAN UNION

MEMBER STATE

TYPE OF COLLECTIVE REDRESS

SCOPE OF ACTION AND AVAILABLE REMEDIES

STANDING TO BRING ACTION

RELEVANT LEGISLATION

Austria

Representative Action

Scope

Business relations

Competition

Remedies

Injunction

Scope Business relations Competition Remedies Injunction Collective interest organizations such as the Austrian Federal Economic Chamber and the Austrian Association for Consumer Information

Other "qualified entities" pursuant to the E.U.'s Injunctions Directive

Consumer Protection Law of 1979 (ss. 28-30)

Directive 98/27/EC

Test Case

Scope

Consumer Protection

Remedies

All remedies including monetary damages and specific performance

VKI (Austrian Association for Consumer Information), who is assigned claims by Consumers

Section 227 of the Code of Civil Procedure

Belgium

Representative Action

Scope

Fair trade practices, including violations of the Unfair Trade Practices Act Environmental protection Anti-discrimination

Remedies

Injunction

Individuals (with a personal and direct interest)

Minister of Economic Affairs, Professional Organizations

Consumer organizations

 

Cyprus

Representative Action

Scope

Consumer Protection

Remedies

Injunction

Competition and Consumer Protection Department

Cyprus Ministry of Commerce, Industry and Tourism

Any lawfully incorporated body/organization with a legitimate interest in the issue

Directive 98/27/EC

The Czech Republic

Representative Action

Scope

Consumer Protection Unfair Competition

Remedies

Injunction

Individual consumers, but each plaintiff is considered an individual subject at each phase

Consumer organizations

Act No. 634/1992 Coll. On protection of consumers.

Act No. 99/1963 Coll., Civil Procedure Code

Act No. 513/1991 Coll., Commercial Code

Directive 98/27/EC

Denmark

Representative Action

Scope

Consumer Protection

Remedies

Injunction

Consumer Ombudsman

Any person or organization with sufficient legal interest

Art. 20 and art. 27 of the Marketing Practices Act

Group Action

Scope

Wide scope excluding matrimonial cases and paternity cases Opt-in Opt-out ONLY where: (1) the claims are so low that they would not be pursued through individual action; and (2) the opt-in model is considered to be inappropriate

Remedies

All remedies including monetary damages

Class representative is appointed, who can be a class member, an association or organization or a public authority.

Only the Consumer Ombudsman can initiate an opt-out action.

1 January 2008

Administration of Justice Act (Denmark), Pt 23, Act No. 181

Estonia

Representative Action

Scope

Consumer Protection (pursuant to the E.U.'s Injunctions Directive)

Remedies

Injunction

Consumer Protection Board

State Agency of Medicine

Communication Board

Financial Supervision Authority

Ministry of Culture

 

Finland

Representative Action

Scope

Wide scope excluding competition law, environment law or legislation regulating equality between men and woman

Remedies

Injunctions

Conditional fines, Corrective advertising

State or municipal authorities

The Consumer Protection Act, 1978

Group Action

Scope

Consumer protection

Opt-in procedure

Remedies

All remedies including monetary damages

Consumer Ombudsman only

The Group Action Act

October 1 2007

France

Group Action

Scope

Consumer protection

Investor protection

"Victims" must be personally identified

Opt-in: each plaintiff must give the Association a mandate to act on their behalf

Remedies

All remedies including monetary damages and specific performance

Approved associations representing consumers or investors

1992 Article L. 422-1 Consumer Code

Germany

Representative Action

Scope

Consumer protection: fair commercial practices or standard contract terms

Unfair competition

"Victims" must be personally identified

Remedies

Injunction

Disgorgement of ill-gotten gains, which is given to the Federal budget (in unfair competition)

Professionals and consumer organizations

Directive 98/27/EC, Act on Injunctive Remedies 2002 (Unterlassungsklagengesetz)

German Law Against Unfair Competition, 2004

1 § 3 No. 8 RBerG (German Law Governing Legal Advice)

Test Case

Scope

Where a series of investors suffer a similar damage as a result of misleading statements on securities or bad performance of a contract resulting from an offer of securities

Remedies

Monetary damages and specific performance may be awarded

Damages are individually awarded based on a "model proceeding"

An individual may bring an action for a test case, where at least 10 individual actions have been filed.

The court adjudicates one individual action. The other individual lawsuits are suspended until judgment in the test case is rendered, which is then binding on all plaintiffs enrolled in the register.

November 2005

Capital Markets Model Case Act (mass securities litigation)

Five year pilot stage.

Greece

Representative Action

Scope

Consumer protection

Remedies

Injunction

Compensation for moral damages may be awarded for consumers, collectively

Consumer associations

Article 10of Law 2251/1994 regarding consumer protection.

Directive 98/27/EC

Hungary

Representative Action

Scope

Consumer protection

Remedies

Injunction

Social organizations representing consumer interests

Public prosecutor

General Inspectorate of Consumer Affairs

Cease and desist order pursuant to Section 39 of the Hungarian Consumer Protection Act, Section 209/B of the Hungarian Civil Code and Section 92 of the Hungarian Competition Act

Directive 98/27/EC

Ireland

Representative Action

Scope

Consumer protection

Remedies

Injunction

Director of Consumer Affairs

Consumer Information Act 1978; Unfair Terms in Contracts Regulations 1995

Italy

Representative Action

Scope

Consumer protection

Remedies

Injunction

Registered consumer associations

Consumers' Code of 2005 (Codice del Consumo)

Group Action (not yet in force; pending revisions)

Scope

Consumer protection

Opt-in

Remedies

Injunction

Registered consumer associations

Organizations and committees that sufficiently represent the collective interests at issue

Legge Finanziaria per il 2008, Articles 445-449.

Article 140bis in the Consumer code.

http://www.businessinsurance.com/cgi-bin/article.pl?article_id=25376

Latvia

Representative Action

Scope

Consumer protection

Remedies

Injunction

Consumer rights Protection Centre

Consumer Rights Protection Law of 2001 (Article 25)

Lithuania

Representative Action

Scope

Consumer protection

Remedies

Injunction

Consumer associations

National Consumer Rights Protection Board

Directive 98/27/EC

Luxembourg

Representative Action

Scope

Consumer protection

Remedies

Injunction

Individuals

Any professional group or domestic consumer organization authorized by the Law of 19 December 2003

Directive 98/27/EC

Article 6.2 of the Law of 25 august 1983 (legal protection of consumers.)

Article 25 of the Law of 30 July 2002 (regulating certain trade practices)

Malta

Representative Action

Scope

Consumer protection

Remedies

Dependent upon the type of complaint and applicable law

Director of Consumer Affairs. Consumers

Directive 98/27EC

Chapter 378, Consumer Affairs Act

Norway

Representative Action

Scope

Wide scope

Remedies

Injunction

Rectification of Damages

Organizations with sufficient connection to the subject matter in dispute (a "natural representative")

 

Action Group

Scope

Wide scope

Opt-in

Opt-out is available where (1) the claims are of such a small value that it wouldn't make sense to be pursued individually; (2) the claims likely do not raise individual issues.

Remedies

All remedies including monetary damages

An individual who fulfils the conditions for class membership

An organization, association or public body, provided the action falls within its purpose and scope

The representative may be an organization, trust or public body.

Chapter 35 in the Dispute Act of 2005.

1 January 2008

Civil Procedure Code.

The Netherlands

Representative Action

Scope

Consumer protection

Remedies

Injunction

Representative organizations

Dutch Civil Code 1 July 1994

3:305a/b Civil Code

6:240 Civil Code

Collective Settlement Approval

Scope

Wide scope

Opt-out

Remedies

Monetary damages

Two parties to the settlement can petition the court for approval of that settlement on an opt-out basis

1 August 2005

Act on Collective Settlement of Mass Damages (WCAM)

Dutch Code of Civil Procedure (Article 1013-1018 CPP)

Poland

Representative Action

Scope

Consumer protection: abusive contractual terms in consumer adhesion contracts; and unfair commercial practices

Remedies

Injunction

Ombudsmen or consumer organizations

An individual may initiate the procedure for an abusive contractual term.

Act on the Protection of Competition and Consumers implemented Directive 98/27/CE

Portugal

Representative Action

Scope

Consumer protection

Remedies

Injunction

Individuals

Consumer protection associations

Decree-Law 446/85 of 25 October

Group Action

Scope

Consumer protection

Opt-out

Remedies

All remedies including monetary damages

Any consumer who is directly injured

Consumer association

Ministerio Publico

The claimant in the popular action is granted standing as the representative, and acts for all those who do not opt out.

1995

Law No 83/95 of 31st August, Right of Proceeding, Participation and Popular Action; and Law No 24/96 of 31st July, Establishing the Legal System Applicable to Consumer Protection.

Slovakia

Representative Action

Scope

Consumer protection

Remedies

Injunction

Consumers

Consumer organizations

Article 26 of Law 634/1992 Coll. Act on Consumers' Protection;

Code of Civil Procedure

Directive 98/27/EC

Slovenia

Representative Action

Scope

Consumer protection

Environmental protection

Remedies

Injunction

Individuals

Consumer protection organization

Articles 75-76 Consumer Protection Act

Article 133 Code of Obligations (1 January 2002)

Spain

Representative Action

Scope

Consumer protection

Environmental protection

Competition Law

Remedies

Injunction

Intituto Nacional de Consumo (National Consumer Institute) and their equivalents in the Regions (Comunidades Autónomas)

Consumers Associations

Public prosecutor

There is a general collective injunction regulated by the Ley 1/2000 (LEC) and other collective injunctions regulated by sectorial rules

Directive 98/27/CE

Group Action

Scope

Consumer Protection

Opt-in

Remedies

Compensation for damages

Injunction

Groups of "victims" or Consumers Associations, where the victims are easily Determinable

Where victims are not easily determinable, claims can only be brought by Consumer Associations

Civil Procedure Act (LEC) of 2000

There are other laws that may recognize standing in particular situations (eg. Ley 26/1984)

Sweden

Representative Action

Scope

Consumer protection: market law; and unfair contract terms

Remedies

Injunction

Consumer Ombudsman

Consumer and wage-earners' organizations

Individual competitors (only on grounds of alleged breach of the Marketing Practices Act)

 

Group Action

Scope

Wide scope

Opt-in

Remedies

All remedies including monetary damages

Individuals

Association of consumers, environmental organizations, or non-profit organizations

Designated public authorities

January 1 2003

Swedish Group Proceedings Act

United Kingdom (U.K.)

Representative Action

Scope

Consumer protection

Fair trading

Environmental protection

Competition law

Remedies

Injunction

Approved consumer representative bodies, e.g. Office of Fair Trading ("OFT")

Directive 98/27/CE

Group Action/ Test Case

Scope

Wide scope

Remedies

All remedies including monetary damages

An individual who has filed an action

On the court's own initiative

By the solicitors who act for any party

A Group Litigation Order ("GLO") is the mechanism that permits the collective action and is required from the court before individual actions are grouped.

The order defines the group that is to be included.

Civil Procedure Rules Part 19 III and practice directions

Injunctions may be obtained under Part 8 of the Enterprise Act 2002

Representative Actions: actions that are brought by an organization on behalf of a group of individuals, typically consumers. Remedies are restricted to injunctions.

The Test Case: individuals who have filed separate actions may agree that one individual action forms a model proceeding for the other individual actions against the same defendants. The outcome of the first individual action is only binding on those individuals that have joined the test case register.

Group Actions: Individuals may bring an action for monetary damages on behalf of a group of individuals. Generally group actions are opt-in, instead of opt-out, which means that the decision or settlement is binding only on those who have expressly joined the class.

The information for this chart was compiled from the following resources:

(1) The Global Class Actions Exchange, hosted by Stanford Law School. Online at: http://globalclassactions.stanford.edu/reports.html. This provides a collection of country reports prepared for "The Globalization of Class Actions Oxford Conference of 13 & 14 December 2007", organized by Professor Deborah Hensler, Stanford University and Dr. Christopher Hodges, Oxford University.

(2) Dr. Jules Stuyck et al, The Study Centre for Consumer Law- Centre for European Economic Law Katholieke Universiteit Leuven, Belgium, An Analysis and Evaluation of the Alternative Means of Consumer Redress Other Than Redress Through Ordinary Judicial Proceedings, Final Report: A Study for the European Commission, Health and Consumer Protection Directorate-General Directorate B- Consumer Affairs (Leuven, January 17, 2007), online: http://ec.europa.eu/consumers/redress/reports_studies/comparative_report_en.pdf

(3) 28 National Reports, prepared by the University of Leuven (November 16, 2006), available online: http://ec.europa.eu/consumers/redress_cons/collective_redress_en.htm

www.lerners.ca

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This article is part of a series: Click Brave New Old World - Collective Redress In Europe - Part 1 for the previous article.
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