Multi-Party Redress Mechanisms in Europe: Squeaking Mice?: (133 Ius Commune Europaeum)

The story of collective redress in the European Union up to the present day may be qualified as a story of missed opportunities and small steps forward. This is due to an overly cautious approach to the topic at the European and national levels, a fear of American-style class actions and lobbying against the introduction of such mechanisms by those who might become subject to them as defendant parties. As a result, many of the collective redress mechanisms introduced so far in the various EU Member States may rightly be qualified as 'Squeaking Mice'. This appears not only from the contributions to the present volume, but also from the considerable number of studies that have been published on collective redress mechanisms in Europe during the last few years. The editors of the present volume hope that the future of collective redress in Europe will be brighter than the past. They hope that the volume will further the discussion on collective redress in Europe by providing the most up-to-date information in the field, and that this will lead to the implementation of effective collective redress mechanisms in the various EU Member States, mechanisms that cannot be qualified as stillborn, as is the case with many of the reforms that until now have been introduced in most European Union Member States.

Table of Contents:
CONTENTS List of Authors List of Abbreviations Acknowledgements COLLECTIVE REDRESS IN THE EUROPE UNION - COMPARATIVE PERSPECTIVES (V. Harsagi and C.H. van Rhee) PART I: EU & USA EUROPEAN PERSPECTIVES ON COLLECTIVE LITIGATION (B. Hess) 1. Introduction: Regulating Collective Redress in the European Union 2. The EU Commission's Package of 11 June 2013 3. The New Legislative Approach 3.1. Public v Private Enforcement 3.2. Horizontal and Sectorial Approaches 3.3. Non-binding and Binding Instruments 4. Left-overs of the EU Commission's Recommendation 4.1. Cross-border Collective Redress 4.2. An Area Uncovered: Collective Redress and ADR Bibliography ACCESS TO JUSTICE IN ENVIRONMENTAL PROTECTION CASES (Gy. Bandi) 1. Class Actions and Environmental Group Actions - Similarities and Specialities 2. Modelling Class Actions within the EU 3. Right to Environment and Access to Justice 4. The Aarhus Convention and its Article 9 5. Access to Justice in Environmental Protection Cases within the EU - Facts and Proposals 6. The Role of CJEU Case Law in Opening up Access to Justice Possibilities 7. Summary Bibliography THE BIG BAD WOLF: AMERICAN CLASS ACTIONS (R.L. Marcus) 1. US Litigation and Private Enforcement 2. The Background of the Modern American Class Action 3. The Emergence and Evolution of the Modern American Class Action 4. Recent Revisions by Rule, Statute and Supreme Court Decision 4.1. Rule Revisions 4.2. Statutory Changes 4.3. Supreme Court Class-Action Decisions 5. Further Reform Initiatives? 5.1. Settlement Class Certification 5.2. Class Certification and Scrutiny of the Merits 5.3. 'Issue' Classes 5.4. Criteria for Settlement Review 5.5. Use of 'Cy Pres' Remedies 5.6. Other Issues 6. Taming the Wolf? Bibliography WHY NO CLASS ACTIONS IN EUROPE? A VIEW FROM THE SIDE OF DYSFUNCTIONAL JUSTICE SYSTEMS (A. Uzelac) 1. Introduction 2. Alice Meets the White Rabbit: Discovery of Collective Litigation by a (Southern) European Judiciary 2.1. Collective Litigation in Croatia or How Croatia Completed the EU Accession Homework and Devised the 'Most Modern' Legislation for Group Litigation 2.2. In the Quest for Gay Rights: First Anti-Discrimination Verbandsklagen and Their Meagre Success 2.3. Interim Victory of Bank Loans Consumers in Swiss Franc Appreciation Case 3. Why Not? Inferences from Particular Southern European Examples 3.1. Slow Individual, even Slower Collective Justice 3.2. Lack of Finality and Effective Enforcement: Toothless Collective Justice 3.3. No Appropriate Personal and Organizational Design for Mass Claim Processing 4. Why Yes? A General Test for the Desirability of Public Interest Litigation in Europe 4.1. Will It Make the Handling of Major Disasters and Burning Social Issues any Better? 4.2. Will It Help to Improve the Functioning of the Judiciary? 4.3. Will It be More Attractive for the End Users of the Justice System? Bibliography BEYOND OPT-IN AND OPT-OUT: THE LAW AND ECONOMICS OF GROUP LITIGATION (A. Szalai) 1. Economic Theory of Group Litigation 1.1. The Collective Action Problem: Key Question 1.2. The Free-rider Problem 1.3. The Types of Collective Actions - Different Collective Action Problems 1.4. The Case for Injunctions 1.5. Compensatory Actions - The Res Iudicata Problem 1.6. Remedying Collective Action Problems 1.7. Low-value Group: The Prisoner's Dilemma 1.8. High-value Groups: 'Chicken Game' 1.9. Necessary Incentives: Personal Benefits for Participants 1.10. The Role of Settlement: The Problem of the Enrichment of the Victim 2. Law and Economics of some Regulatory Problems 2.1. Opt-in or Automatic Membership 2.2. Opt-Out 2.3. The Role of Non-profit Organizations as Representatives 3. Summary Bibliography PART II: NATIONAL PERSPECTIVES BELGIUM'S NEW CONSUMER CLASS ACTION (S. Voet) 1. Introduction 2. Consumer Law Only 3. Standing to Sue 4. Superiority 5. Brussels Courts 6. Opt-in or Opt-out 7. Procedure: Settlement Phase and Merits Phase 7.1. Settlement before the Proceedings 7.2. No Settlement before the Proceedings 8. Collective Redress in Kind or by Monetary Payment 9. Collective Claims Settler 10. Evaluation 10.1. Holistic Approach 10.2. Bottlenecks Bibliography MULTI-PARTY LITIGATION IN ENGLAND (N. Andrews) 1. Test Cases 2. Consolidation and Joinder 3. Representative Proceedings ('Opt Out') 4. Group Litigation Orders ('Opt In') 5. Rejection (2009) of Generic 'Opt Out' Class Action 6. Concluding Remarks Bibliography COLLECTIVE LITIGATION IN FRANCE: FROM DISTRUST TO CAUTIOUS ADMISSION (F. Ferrand) 1. Introduction - Several Previous Attempts to Introduce Group Litigation in France 2. Where Are We? The Current State of Affairs in France before the Coming into Force of the New Statute 2.1. The Existing Procedural Devices 2.1.1. An Action for the Financial Compensation of the Consumers' Collective Interest (Article L. 421-1 Consumer Code) 2.1.2. A Joint Representative Action for Consumers (Article L. 422-1 Consumer Code) Brought by Approved Consumer Associations (action en representation conjointe d'une association agreee de consommateurs) 2.1.3. A Joint Representative Action for Investors (Article L. 452-2, para 1 Monetary and Financial Code) 2.2. The Insufficiencies of the Existing Mechanisms 3. Where Do We Go? The New French Act (Loi No. 2014-344 of 17 March 2014 relative a la consommation) 3.1. The Recent Introduction of an Action de Groupe 3.2. Much Criticism with Regard to the Cautious Regulation of Group Litigation 3.3. Comparison with the Content of European Recommendation 2013 4. Conclusion Bibliography The German Experience with Group Actions - The Verbandsklage and the Capital Markets Model Case Act (KaPMuG) (M. Bakowitz) 1. The Verbandsklage 1.1. Prohibitory Injunctions Act (UKlaG) 1.2. Act Against Unfair Competition (UWG) and Act Against Restraints on Competition (GWB) 1.3. Practical Application 2. The Capital Markets Model Case Act 2.1. Emergence of a Group Action 2.1.1. The Starting Point: The Telekom Case 2.1.2. Legislative Procedure 2.1.3. Limited Scope 2.2. Mechanics of the Act 2.2.1. Constitution of the Civil Courts in Germany 2.2.2. Three Phases 2.2.3. Registration of a Claim 2.2.4. Costs 2.2.5. Nature of the Model Proceeding 2.3. Practical Application 2.3.1. Geltl v Daimler Chrysler 2.3.2. The Telekom Case - A Never-Ending Story 2.4. First Conclusions 3. Summary Bibliography THE NEED FOR FURTHER DEVELOPMENT OF COLLECTIVE REDRESS IN HUNGARY (V. Harsagi) 1. Introduction 2. Present Areas of Collective Rights Protection (actio popularis) 2.1. Public Interest Litigation on Unfair Standard Contract Terms 2.2. Further Means of Consumer Protection 2.3. Actions against Financial Service Providers 2.4. Other Areas of Collective Redress under the Hungarian Regulations in Force 3. On the Lack of Group Litigation 4. Outlook for the Future Bibliography PRIVATE ENFORCEMENT IN HUNGARY WITH A VIEW ON CLASS ACTIONS (T. Toth and P. Szilagyi) 1. Introduction 2. The Proposed Directive on Actions for Damages 3. The European Way: Collective Redress instead of Class Actions 4. Experience in Hungary Regarding Private Enforcement - Stand-alone Actions 5. Experience in Hungary Regarding Private Enforcement - Follow-on Actions 6. Practical Difficulties with Antitrust Claims 7. Rules Supporting Private Enforcement 8. Conclusions Bibliography CLASS ACTIONS IN ITALY: GREAT EXPECTATIONS, BIG DISAPPOINTMENT (E. Silvestri) 1. Introduction 2. Collective Actions for Injunctive Relief 3. Class Actions Italian-Style 4. 'Public Class Actions' 5. Conclusions Bibliography COLLECTIVE REDRESS IN THE NETHERLANDS (C.H. van Rhee and I.N. Tzankova) Introduction 1. Collective Litigation 1.1. Sources of Law and Scope 1.2. Content of the Rules 2. Collective Settlement Procedures (Wet Collectieve Afwikkeling Massaschade or WCAM) 2.1. Sources of Law and Scope 2.2. Content of the Rules 3. Final Remarks Bibliography POLISH PERSPECTIVES AND PROVISIONS ON GROUP PROCEEDINGS (R. Kulski) 1. Introductory Notes 2. Key (Basic) Issues Related to the Act on Enforcing Claims in Group Proceedings 2.1. The Scope of Matters that can be dealt with in Group Proceedings (Article 1, Sec. 2 of the Act) 2.2. Admissibility of Group Proceedings 2.3. The Model of Group Membership 2.4. The Possibility of Introducing the Opt-out Model into the Polish System of Court Proceedings 3. Parties to Group Proceedings 3.1. Competence and Composition of the Court in Group Proceedings 3.2. Plaintiff 3.3. Defendant 4. Stages in the Course of Group Proceedings 4.1. Introductory Remarks 4.2. Proceedings on Admissibility of Group Proceedings 4.2.1. Instituting an Action 4.2.2. Delivering a Copy of the Group's Statement of Claim to the Defendant and Submitting a Reply to a Statement of Claim 4.2.3. Court's Decision on Admissibility of Group Proceedings 4.3. The Actual Group Proceedings 4.3.1. Announcement of Initiation of Group Proceedings 4.3.2. Submitting Declarations on Joining the Group to the Group Representative by Parties whose Claims might be included in Group Proceedings 4.3.3. Delivering the List of Persons who have joined the Group to the Defendant and Defining the Time Limits for the Defendant to Submit Objections as to Group Membership 4.3.4. Decision on the Composition of the Group 5. Judgment in Group Proceedings 6. Enforcement proceedings 7. Appeal 8. Costs of Group Proceedings Bibliography GROUP ACTIONS IN SWEDEN - A MODERATE START (L .Ervo) 1. The Scope of Group Actions 2. The Nature of Group Actions 3. Opt-in 4. The Role of Group Members 5. Evidence 6. The Role of the Court 7. Funding and Costs 8. Enforcement 9. Case Law and Evaluation 10. Conclusion Bibliography

About the Author :
Viktória Harsági is currently professor and head of department of Civil Procedure Law of the Pázmány Péter Catholic University and lecturer at the Andrássy Gyula German Speaking University in Budapest. She studied Law at the University of Miskolc (1999) and obtained in 2005 her PhD with the thesis "The Influence of Harmonisation of Law and Technical Development on Documentary Evidence". As a visiting research fellow at predoctoral level she spent a full academic year at the Johannes Gutenberg Universität Mainz (2002-2003, DAAD-scholarship), at postdoctoral level two months at the Universität Basel (2011, von Caemmerer scholarship) a month in Vienna (2012, Institut für Zivilverfahrensrecht, ÖAD-scholarship) three months at the University of Cambridge Clare College (Eötvös Scholarship). She is the member of the International Association of Procedural Law, editor of the Pázmány Law Review. Her main fields of research is the international and comparative civil procedure law. C.H. (Remco) van Rhee is Professor of Comparative Civil Procedure and European Legal History at Maastricht University (Netherlands) and director of the program "Foundations and Principles of Civil Procedure in Europe" of the Ius Commune Research School. He studied law at the universities of Leiden and Edinburgh, History at the university of Leuven and Psychology at the university of Leiden. He defended his PhD thesis on early-modern civil procedure at the university of Leiden, where he received his doctorate in 1997. His PhD thesis was awarded the prix d'excellence of the Praemium Erasmianum Foundation in 1997. Van Rhee taught Roman Law at the University of Leiden (1991-1994) and Property and Civil Procedure at the University of Utrecht (1994-1998) before being appointed at Maastricht University. He served, amongst other things, as head of department, member of the science committee of the law faculty of Maastricht University, academic director of the Maastricht University European Law School Master program and chairman of the Education Board of the Maastricht University European Law School. He held visiting positions at various universities in Europe, the Americas, Asia and Africa. He is a member of the several editorial boards: "The Legal History Review"; "Pro Memorie: Bijdragen tot de Rechtsgeschiedenis der Nederlanden" ("Dutch Legal History Journal") and "Tijdschrift voor Civiele Rechtspleging" ("Dutch Civil Procedure Journal"). He is general editor of the History of Private Law series and of the China & Comparative Law series. He is founding member of the European Society for Comparative Legal History, Council Member of the International Association of Procedural Law, Member of the Wissenschaftliche Vereinigung für Internationales Verfahrensrecht and fellow of the Maastricht European Private Law Institute (Mepli). He is also an elected member of "Maatschappij der Nederlandse Letterkunde" ("Society of Dutch Literature and History").