The Reform of Class and Representative Actions in European Legal Systems: A New Framework for Collective Redress in Europe

This book examines the principal trends and policy goals relating to collective redress mechanisms in Europe. It identifies three principal areas in which procedures and debates have emerged: within consumer protection and competition law, and from some national court systems. It identifies differing national models of public and private enforcement in consumer protection law in the Member States, and the search for more efficient and inclusive procedures that would deliver increased access to justice and enhanced compliance with desired standards (arguably through deterrence). A sequence of case studies illustrates the pros and cons of differing models. Lessons are also drawn from the experience of class actions in the USA over the transactional costs of private law mechanisms, and adverse economic consequences. The various policy strands are unravelled and prioritised, and options for the future are recommended. The American 'private enforcement' model is contrasted with the more prevalent European public and mediated enforcement tradition. New developments involving Ombudsmen and oversight of compensation by public enforcement bodies are identified, and underlying theories of restorative justice and responsive regulation discussed. Public, private, formal, informal, ADR and voluntary methodologies are evaluated against criteria, and it is concluded that the optimal options for collective redress in Europe involve a combination of approaches, with priority given to public and voluntary solutions over private court-based mechanisms. "Reform of collective redress is the hottest topic in European civil justice today. Dr. Hodges, one of the world's leading experts in the field, provides a deeply informed evaluation of the current debates. Illustrative case studies drawn from both consumer protection and competition areas enrich and ground his provocative analysis of the complex issues at stake making this a "must-have" book for every practitioner, academic and policy-maker in the field". Professor Jane Stapleton, Australian National University, and University of Texas, Austin.

Table of Contents:
1.Introduction 2.Consumer Collective Redress Mechanisms Initial Consumerist Models France Differentiation between Public and Private Models in National Enforcement Model A: Primacy of Public Bodies The UK UK Consumer Protection Law Compensation Orders UK Competition Law The Nordic Model Nordic Compensation Schemes: Medical and Drug Injuries and Road Traffic Accidents The Netherlands Model B: Emphasis on Private Sector Bodies Portugal Spain The CEE Situation Issues with the Involvement of Civil Society Organisations Experimentation and Reform Conclusions 3.Court Rules for Multiple Claims Introduction The English GLO Experience with English Group Actions Ireland Sweden The Netherlands Germany Italy Possible Introduction of Procedures in Other Member States France Poland Conclusions on the Newer Damages Mechanisms Principles: Rights versus Efficiency? Criteria Settlement An Issue of Evolution 4.Collective Redress at European Level: Existing Mechanisms The EU Legislative Background Legal Competence EU Policy on Civil Justice Systems Alternative Dispute Resolution Evolution of Consumer Collective Redress Misleading Advertising Unfair Terms in Consumer Contracts The 'Injunctions Directive' The Consumer Protection Cooperation Regulation The Unfair Commercial Practices Directive Other EU Collective Mechanisms Intellectual Property Enforcement Late Payments ePrivacy Directive Environmental Protection Compensation for Crime Victims Conclusions 5.Technical Issues Similarity or Difference? Opt-in and Opt-out: Binding Solutions, Avoiding Abuse and Delivering Justice Binding Effect and Inclusivity Fundamental Rights Funding and Cost Considerations Discussion Conclusions 6.The Problems that Need to be Avoided Undesirable Consequences The Australian Tort Crisis The England and Wales Product Liability Cases Conclusion: Abuse Could Happen Anywhere Issues for Europe 7.Towards a European Collective Approach to Damages The Developing Debate Consumer Protection Evidence of Need in Consumer Protection: a Compensation or Market Rectification Issue? Competition Damages and Enforcement The 2008 Competition Damages White Paper Evidence of Need: a Competition Deficit? The Challenges at EU Level: Different National Models The Policy Options for Europe Conclusion: Summary of the Issues 8.The Policy Rationales for and Goals of Collective Redress Access to Justice Enhancing the Economy Regulation Through Litigation Deterrence and Behaviour Modification Regulatory and Enforcement Theory Penalties and Sanctions Theory: Restorative Justice Practical Examples Conclusions 9. Evaluating the Options Establishing Criteria 1. The Private Litigation Model 2. A Public Body Approach 3. The Voluntary and ADR Approach 4. The NGO Approach Evaluating the Options-and a Holistic Approach 10.Summarising the Findings and Challenges for Europe Consumer Protection Competition Law Conflicting Models of Influencing Behaviour Policy Objectives Redress and Justice