European Collective Action: Towards Coherence?
| Published date | 01 December 2012 |
| Author | Christopher Hodges,Rebecca Money-Kyrle |
| DOI | 10.1177/1023263X1201900402 |
| Date | 01 December 2012 |
| Subject Matter | Article |
19 MJ 4 (2012) 477
ARTICLES
EUROPEAN COLLECTIVE ACTION:
TOWARDS COHERENCE?
R M-K* and C H**
ABSTRACT
Collective action procedures exist in many jurisdictions. e European Commission’s
policy goal is to harmonize colle ctive redress in consumer and competition law, to improve
access to justice, and to enhance deterrence against unlawful commercial practices. A
European collective action process should include su cient safeguards against abusive
litigation, without compromising the procedure’s e ectiveness . is article considers
which safeguards might be appropriate, drawing on comparative examples from national
civil justice systems within and outside the European Union. It concludes that national
idiosyncrasies as well as Commission policy aims should inform the design of a European
collective action mechanism . Abusive litigation will not be prevented if safeguards are weak
or poorly targeted, but highly restrictive safeguard s will create insurmountable barriers to
justice; both approaches could unde rmine existing nation al collective action pro cesses. An
ill-conceived collective action process could exacerbate rather than ameliorate dispar ities
in access to justice acros s Member States. Alternative dispute resolution schemes may al low
a more exible approa ch, accommodating national di erence s, and so could potentially be
e ective in delivering the Commi ssion’s primary policy aims in a cohe rent way.
Keywords: civil procedure; collective action; comparative law; mass litigation; safeguards
* DPhil Oxon, Solicitor (E ngland & Wales, currently non-pract ising), Post Doctoral Researc her, C ivil
Justice Systems, C entre for Socio-Legal St udies, University of Ox ford.
** Professor of the Fund amentals of Pr ivate Law, Erasmus Universit y, Rotterdam, Head of t he CMS
Research Prog ramme on Civil Justice, C entre for Socio-Legal Stud ies, University of Oxford; Solic itor
(England & Wales).
Rebecca Money-Kyrle and Ch ristopher Hodges
478 19 MJ 4 (2012)
§1. IN T RODUCT ION
Harmonizing collec tive action procedures for infringements of consumer and
competition law is an accepted European policy goal.1 e European Commission’s
Directorates General of Competition, Justice, and Consumer A airs are cooperating
to develop a ‘coherent approach’ across their areas of competence, with t wo key policy
objectives: improving access to justice for compensation, and deterring unlawful
behaviour. Private collective mechanisms with those policy aims are regarded as having
the collateral potential to enhance the Commission and national authority markets
regulation, by removing i llicit gains and thus restoring marke t equilibrium.2
Consensus is lacki ng whether ‘collective actions’ (litigation) are the most appropriate
mechanism for those objectives. Amongst others, regulatory or alternative dispute
resolution (ADR) procedures have been proposed. Whichever are pursued, procedural
design should be calibrated towa rds policy goals a nd rights protection, without causi ng
undue risk of abusive claims, disproportionate costs, and wider adverse e ects on the
justice system and the economy.3
Procedural rules, regulating access to courts, preventing groundless litigation,
protecting litigants’ rights, and upholding the public interest, are axiomatic in civil
procedure, and especially important in collective actions. e size, complexity and cost
of som e mass harm cases risk o verwh elmi ng cour ts if not pro perly re gul ated. P roced ural
safeguards aga inst unmeritorious and abusive claims wil l therefore be necessary a nd
justi ed aspect s of any harmoni zed collect ive action model , as the Europe an Parliame nt
(EP) recognized in its 2012 Resolution.4
Drawing on examples from around the world, this paper identi es safeguards
typical of collective action procedures, wh ich might inform design of a European
model. General consideration is given to the range and purpose of collec tive action
models in various jurisdictions, noting some distinctions in terminology, concept,
aim and procedura l design and function between common law and civil co de systems.
Examples are then considered of substantive, procedural and economic safeguards
found in national collective action regimes. Having identi ed examples illustrating the
1 Mot ion fo r a Eu rop ean P arl iam ent R eso luti on on ‘Towa rds a Coh eren t Appr oac h to C oll ect ive R edr ess’,
12January 2 012, para. 1–12.
2 European Commission, Commission Sta Working Document Public C onsultation: ‘Towards a
Cohere nt Europ ean Appr oach to C ollec tive Red ress’ ( Public C onsult ation), SE C (2011) 173 na l, par a. 2 .
3 e European Parlia ment Resolution noted ‘that t he information avai lable to date, in part icular a study
carried out for DG SA NCO in 2008 entitled ‘Ev aluation of the e ectiveness and e ciency of collective
redress mechan isms in the EU’, indicates that col lective redress mechan isms available within t he EU
have not generated dispropor tionate economic consequences’. e European Parliame nt will require a
ful l im pact ass essm ent b efore col lect ive r edre ss pr opos als prog res s: Eu rope an Pa rli amen t Res olut ion of
2Febru ary 2012 on ‘Towards a Coherent Europea n Approa ch to Col lective Redres s’, (2011/2089 (I NI)),
para. 29.
4 Ibid., para. 20 .
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