On 7 July 2020, the Members of the Committee on Legal Affairs will vote on the provisional agreement resulting from the interinstitutional negotiations on representative actions for the protection of the collective interests of consumers. The text is available here.
Here are some points of interest (and a few on-the-spot comments).
1. The resulting document will be a directive not intended to replace the enforcement mechanisms contained in previous legal acts listed in Annex I, among which the GDPR.
2. The Directive will cover both domestic and crossborder infringements, in particular when consumers affected by an infringement live in one or several Member States other than the Member State where the infringing trader is established.
3. As announced in the Commission’s proposal (referred to here), the Directive should not affect the application of nor establish rules on private international law regarding jurisdiction, the recognition and enforcement of judgments or applicable law (NoA: how long have academics and the CJEU, AGs included, been warning about the PIL rules being utterly inadequate for collective redress? Apparently not enough).
4. Qualified entities should be allowed to bring representatives actions in the Member State where they have been designated as well as in another Member State.
5. When a qualified entity brings a representative action in another Member State than the one of its designation, that action should be considered a cross-border action.
6. When a qualified entity brings a representative action in the Member State where it is designated, the action is considered a domestic representative action even if that action is brought against a trader domiciled in another Member State or even if consumers from several Member States are represented within that action. (NoA: if I am understanding this correctly, the action against a trader domiciled in another Member State is domestic for the purposes of the Directive, although from a PIL perspective it is definitely not domestic).
7. Principle of origin: for the purpose of cross-border representative actions, qualified entities should comply with the same criteria across the Union. It should be for the designating Member State to ensure that the qualified entity designated for the purpose of cross-border representative actions fulfils the criteria, to assess whether it continues to comply with them and, if necessary, to revoke the designation of the qualified entity.
8. Legal standing: Member States should ensure that cross-border representative actions can be brought in their courts (or administrative authorities) by qualified entities designated for the purpose of such representative actions in another Member State.
9. Qualified entities from different Member States should be able to join forces within a single representative action in front of a single forum, subject to relevant rules on competent jurisdiction (NoA: usually who the claimant is has no impact on jurisdiction, so the caveat has to refer to something different. In any event, is this a lost opportunity to reflect on extended rules for related claims?).
10. The mutual recognition of the legal standing of qualified entities designated for the purpose of cross-border representative actions should be ensured
11. When bringing a representative action, the qualified entity should provide sufficient information on the consumers concerned by the action to the court or the administrative authority. The information should allow the court (or the administrative authority) to establish its jurisdiction and the applicable law.
12. Cooperation and exchange of information between qualified entities from different Member States have proven to be useful in addressing in particular cross-border infringements (NoA: has it?). There is a need for continuing and expanding the capacity-building and cooperation measures to a larger number of qualified entities across the Union in order to increase the us representative actions with cross-border implications.
13. The Commission should draw up a report, accompanied if appropriate by a relevant proposal, assessing whether cross-border representative actions could be best addressed at Union level by establishing an European Ombudsman for collective redress (NoA: not sure what his/her role would be).
Here are some points of interest (and a few on-the-spot comments).
1. The resulting document will be a directive not intended to replace the enforcement mechanisms contained in previous legal acts listed in Annex I, among which the GDPR.
2. The Directive will cover both domestic and crossborder infringements, in particular when consumers affected by an infringement live in one or several Member States other than the Member State where the infringing trader is established.
3. As announced in the Commission’s proposal (referred to here), the Directive should not affect the application of nor establish rules on private international law regarding jurisdiction, the recognition and enforcement of judgments or applicable law (NoA: how long have academics and the CJEU, AGs included, been warning about the PIL rules being utterly inadequate for collective redress? Apparently not enough).
4. Qualified entities should be allowed to bring representatives actions in the Member State where they have been designated as well as in another Member State.
5. When a qualified entity brings a representative action in another Member State than the one of its designation, that action should be considered a cross-border action.
6. When a qualified entity brings a representative action in the Member State where it is designated, the action is considered a domestic representative action even if that action is brought against a trader domiciled in another Member State or even if consumers from several Member States are represented within that action. (NoA: if I am understanding this correctly, the action against a trader domiciled in another Member State is domestic for the purposes of the Directive, although from a PIL perspective it is definitely not domestic).
7. Principle of origin: for the purpose of cross-border representative actions, qualified entities should comply with the same criteria across the Union. It should be for the designating Member State to ensure that the qualified entity designated for the purpose of cross-border representative actions fulfils the criteria, to assess whether it continues to comply with them and, if necessary, to revoke the designation of the qualified entity.
8. Legal standing: Member States should ensure that cross-border representative actions can be brought in their courts (or administrative authorities) by qualified entities designated for the purpose of such representative actions in another Member State.
9. Qualified entities from different Member States should be able to join forces within a single representative action in front of a single forum, subject to relevant rules on competent jurisdiction (NoA: usually who the claimant is has no impact on jurisdiction, so the caveat has to refer to something different. In any event, is this a lost opportunity to reflect on extended rules for related claims?).
10. The mutual recognition of the legal standing of qualified entities designated for the purpose of cross-border representative actions should be ensured
11. When bringing a representative action, the qualified entity should provide sufficient information on the consumers concerned by the action to the court or the administrative authority. The information should allow the court (or the administrative authority) to establish its jurisdiction and the applicable law.
12. Cooperation and exchange of information between qualified entities from different Member States have proven to be useful in addressing in particular cross-border infringements (NoA: has it?). There is a need for continuing and expanding the capacity-building and cooperation measures to a larger number of qualified entities across the Union in order to increase the us representative actions with cross-border implications.
13. The Commission should draw up a report, accompanied if appropriate by a relevant proposal, assessing whether cross-border representative actions could be best addressed at Union level by establishing an European Ombudsman for collective redress (NoA: not sure what his/her role would be).
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