Toward a European approach to collective redress such as group or class action?

On October 3, 2018, a study entitled "Collective redress in the Member States of the European Union" was published¹ (the "Collective Redress Study"). The study was commissioned by the European Parliament's Policy Department for Citizens' Rights and Constitutional Affairs at the request of the Committee on Legal Affairs. It aims to assess the current state of play of collective redress at national and European levels; evaluate the opportunity for European intervention in the matter; and provide the European Parliament with concrete recommendations.

The European Commission has been considering the introduction of a collective redress mechanism for many years in order to allow European class actions. Collective redress is a legal term used within the European Union to define a procedural mechanism that allows, for reasons of procedural economy and/or efficiency of enforcement, many similar legal claims to be bundled into a single court action. Hence, it refers to group proceedings such as group or class actions.

Following the Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law (the "Commission's 2013 Recommendation"), ² in January 2018 the European Commission published, a Report on the implementation of the Commission’s 2013 Recommendation (the "Commission's 2018 Report").³ The Report showed that the availability of collective redress mechanisms, as well as the implementation of safeguards against the potential abuse of such mechanisms, is still not consistent across the European Union. A harmonized approach to collective redress such as group or class actions does not currently exist.

On April 11, 2018, the European Commission published proposals on the "New Deal for Consumers",⁴ which aims to introduce new measures supporting collective redress for consumers, through revision of the Injunctions Directive (2009/22/EC) (the "New Deal for Consumers").

The Collective Redress Study aims to present the current trends in respect of collective redress across 12 Member States to give the European legislature a complete overview when considering the adoption of an effective European instrument. The study also found that the rules on jurisdiction under the Brussels I (Recast) Regulation are not currently adapted to collective redress, so this is another area for consideration when reviewing mechanisms which enable cross-border collective redress mechanisms to develop.

The publication of the Commission's 2018 Report, the presentation of the New Deal for Consumers and the publication of the Collective Redress Study have accelerated discussions on collective redress. However, the debate is far from over as the proposals are currently being discussed by the European Commission and the European Council and will undoubtedly be subject to heated discussions among stakeholders and Member States.

¹ Study, Collective redress in the Member States of the European Union, October 3, 2018, available at http://www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL_STU(2018)608829.
² EU Commission, Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union law, 2013/396/EU, 11 June 2013, available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:JOL_2013_201_R_NS0013.
³ EU Commission, Report on the implementation of the Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law, COM(2018) 40 final, January 25, 2018, available at www.ec.europa.eu/newsroom/just/document.cfm?action=display&doc_id=49502.
⁴ The New Deal comprises two proposals for Directives; a new Directive governing "representative actions for the protection of the collective interests of consumers" to replace the existing Injunctions Directive 2009/22/EC; and a broader Directive amending and 'modernising' four existing consumer protection directives (the Unfair Commercial Practices Directive 2005/29/EC, the Consumer Rights Directive 2011/83/EU, the Unfair Contract Terms Directive 93/13/EEC, and the Price Indication Directive 98/6/EC).

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