REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Concerning the application of Directive 2009/22/EC of the European Parliament and of the Council on injunctions for the protection of consumers' interest
Date: 2012-11-06
Institutions: European Commission
Subjects: application of EU law, civil proceedings, consumer movement, special procedure

EUROPEAN 
COMMISSION 

Brussels, 6.11.2012  
COM(2012) 635 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

Concerning the application of Directive 2009/22/EC of the European Parliament and of 
the Council on injunctions for the protection of consumers' interest 

EN 

   EN 

 
 
 
 
  
 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

Concerning the application of Directive 2009/22/EC of the European Parliament and of 
the Council on injunctions for the protection of consumers' interest 

TABLE OF CONTENTS 

1. 

2. 

3. 

4. 

5. 

6. 

INTRODUCTION........................................................................................................ 2 

APPLICATION OF THE DIRECTIVE FROM 2008 ONWARDS ............................ 3 

IMPACT OF THE DIRECTIVE ON CONSUMERS. ................................................ 6 

OBSTACLES TO THE EFFECTIVENESS OF INJUNCTIONS............................. 10 

NEXT STEPS............................................................................................................. 13 

CONCLUSION .......................................................................................................... 15 

EN 

2 

   EN 

 
1. 

INTRODUCTION 

Directive 98/27/EC of 19 May 1998 on injunctions 1 for the protection of consumers' interests 
introduced a Court or administrative procedure enabling consumer organisations and/or public 
authorities to seek an injunction to stop a trader's practice that infringes a number of EU rules 
on consumer protection (listed in the Annex to the Directive) in all Member States. Directive 
98/27/EC has been amended several times (new Directives have been added to the Annex). In 
the  interest  of  clarity,  this  Directive  has  been  codified  by  Directive  2009/22/EC,  which  is 
currently in force. 

1.1. 

Transposition of the Directive by Member States and its application until 2008. 

The first report concluded that the major benefit of the Directive on injunctions was the fact 
that it introduced a procedure enabling an entity to bring injunctions to protect the collective 
interest  of  consumers  in  each  Member  State.  These  procedures  were  successful  for  national 
infringements,  but  had  a  more  limited  impact  on  cross-border  infringements.  The  main 
reasons mentioned by both the Member States and the interested parties to explain the small 
number of injunctions sought in another Member State were the cost, complexity and length 
of time involved in taking action in another Member State. 

The  Commission’s  report  also  highlighted  that  the  entry  into  force  of  Regulation  (EC) 
N°2006/2004 on cooperation between national authorities responsible for the enforcement of 
consumer  protection  laws  (CPC  Regulation)2  partially  explained  the  limited  recourse  by 
public authorities to the injunctions procedure for cross-border infringements,  as the mutual 
assistance mechanisms under the Regulation are less costly. 

1.2.  Methodology and purpose of this report. 

Article 6(1) of Directive 2009/22/EC on injunctions for the protection of consumers' interests 
('the  Directive')  provides  for  the  adoption  of  a  report  on  its  application  every  three  years. 
Initially planned for 2003, the first report was adopted in November 2008.  

In March 2011, in order to prepare this second report, the Commission sent questionnaires on 
the  application  of  the  Directive  to  public  authorities  and  consumer  organisations.  The 
Commission received 58 replies, 37 of which were from ministries or other public authorities 
of Member States and 21 from consumer organisations at national or European level.  

In addition, the Commission commissioned an external study3 designed to collect further data 
on the application of the Directive and providing an overview of the impact of the Directive 
on  consumers  in  nine  Member  States,  namely  Austria,  Bulgaria,  France,  Germany,  The 
Netherlands,  Portugal,  Spain,  Sweden  and  United  Kingdom.  These  Member  States  were 

1 

2 
3 

EN 

text  of 

the  Directive 

The 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32009L0022:EN:NOT. 
(OJ 364 09 12 2004, p.1-11) 
Study  on  the  application  of  Directive  2009/22/EC  on  injunctions  for  the  protection  of  consumers’ 
interests, carried out by IBF International Consulting. 

(OJ  L  110,  1.5.2009,  p.  30–36) 

can  be 

found 

at: 

3 

   EN 

 
 
                                                 
chosen  because,  next  to  the  injunction  procedure,  they  have  systems  of  compensatory 
collective redress which have been already running for a number of years.  

2. 

APPLICATION OF THE DIRECTIVE FROM 2008 ONWARDS 

2.1. 

Estimate of the number of injunctions. 

Only  limited  data  are  available  on  the  number  of  national  and  cross-border  injunctions  that 
have  been  initiated  to  defend  the  collective  interests  of  consumers  in  the  various  Member 
States.  This  lack  of  comprehensive  and  reliable  statistical  data  is  due  to  the  absence  of  a 
formal obligation on Member States to maintain a central database of the injunctions initiated 
on their territory and report this information to the Commission. For this reason, estimating 
the number of injunctions is a difficult task and any estimate we make needs to be treated with 
care. It is possible to report a number of documented cases, but this does not mean that these 
are the only actions for injunctions that have actually been initiated.  

In the questionnaire sent to relevant stakeholders, respondents were asked about the number 
of  injunctions  they  had  tabled  since  2008,  at  both  domestic  and  cross-border  level.  In  total, 
5632  actions  for  injunction  were  reported.  The  vast  majority  of  these  were  national. 
Respondents  reported  only  around  70  injunctions  with  a  cross-border  dimension  during  the 
specified period. If we break down these  figures by Member  State,  the Member States with 
the  highest  number  of  actions  for  injunction  reported,  as  from  2008  are  as  follows: 
Germany:  although  there  is  a  lack  of  centralized  and  comprehensive  statistical  data,  the 
Federal  Republic  of  Germany  declared  that  just  seven  German  qualified  entities  had 
introduced  over  3,000  actions.  This  may  well  be  linked  to  the  fact  that,  in  Germany,  the 
policing  of  consumer  markets  is  traditionally  subject  to  private  enforcement.  Latvia:  the 
Consumer Protection Authority has reported 956 cases. United Kingdom: The Office of Fair 
Trading  (OFT)  reported  938  actions.  In  Austria,  the  external  study  identified  more  than 
500 actions and the Government of Malta reported 267 cases. 

Concerning injunctions with a cross-border dimension, the Member States with the highest 
number  of  actions  reported  during  the  specified  period  are  as  follows:  Germany:  The 
Federation  of  German  Consumer  Organisations  declared  that  it  had  initiated  approximately 
20 injunctions  for  cross-border  infringements.  Austria:  The  Federal  Chamber  of  Labour 
declared  that  it  had  filed  8  cross-border  injunctive  actions.  Qualified  entities,  as  well  as 
lawyers (barristers) specialised in consumer law, tend to bring actions only in cases where the 
standing of Austrian courts is ensured. 

The success rate of actions initiated is usually high. However, this is partly because, owing to 
the cost risks linked to litigation, qualified entities only launch injunctive actions when they 
are sure to win. 

2.2.  Most affected economic sectors. 

Although there have been injunctions in a very wide range of economic sectors, the majority 
of injunctive actions are concentrated in only a limited number of sectors. 

The  economic  sectors  which  were  most  often  mentioned  by  respondents  as  being  most 
affected by injunctions are the following: 

EN 

4 

   EN 

 
(1) 

Telecommunications 

(2) 

Banking and investments 

(3) 

Tourism and package travel 

Other sectors mentioned by several respondents are distance selling, insurance, energy, non-
food consumer goods and passenger transport. A few respondents mentioned real estate and 
home  repairs,  or  lending  by  non-banking  institutions  (so-called  "quick  loans"),  as  other 
affected sectors. 

2.3.  Most common infringements of consumer protection rules 

Injunctions  have  been  taken  out  against  a  wide  range  of  breaches  in  consumer  protection 
legislation. In addition, some Member States have extended the scope of injunctions beyond 
the  limited  list  contained  in  the  Annex  to  the  Directive.  This  extension  is  positive  for 
consumers.However,  an  appropriate  reference  should  be  made  to  the  legislation  included  in 
the  Annex  to  the  Directive,  in  order  to  ensure  legal  certainty.  Germany,  Austria,  Portugal, 
Spain, Bulgaria and the Netherlands are some Member States where the scope of injunctions 
is much broader than the list of legislation included in the Annex to the Directive. However, 
the majority of injunctive actions have been initiated to stop only a limited number of illegal 
practices harming the collective interests of consumers.  

Judging  by  the  responses  to  the  questionnaire,  the  following  illegal  practices  that  harm 
consumers' collective interests have resulted most frequently in the exercise of injunctions, in 
order of importance: 

(1) 

Unfair  contract  terms.  This  is  clearly  the  type  of  practice  which  most 
frequently gave rise to an action for injunction;  

(2) 

Unfair commercial practices and misleading advertising, in equal measure.  

To a much lesser extent, other violations of the rights of consumers that led to the serving of 
an  injunction  were  violations  of  provisions  regarding  guarantee  rules,  price  indication 
regulations or the sending of unsolicited e-mails. Some Member States (Spain, in particular) 
also have a group of injunctions concerning the application of the Consumer Credit Directive. 
In  some  Member  States  where  the  injunctions  have  a  broader  scope,  actions  were  brought 
against  the  interruption  of  essential  services  (such  as  electricity  supply).  In  this  case,  the 
injunction order can perfectly order to comply with consumer rights requiring a party to take a 
certain  action.  Cases  such  as  the  interruption  of  services  or  utilities  in  Spain  are  a  good 
example of this kind of injunction ordering action to be taken. 

2.4. 

Qualified entities: legal environment in the different Member States. 

The latest list of qualified entities4 includes a total of 313 qualified entities. The number and 
characteristics of these entities vary widely from one Member State to another. While several 
Member  States  have  designated  just  one  qualified  entity  (Ireland,  Latvia,  Lithuania,  The 
Netherlands,  Romania  and  Sweden),  others  have  designated  more  than  70  (Germany  and 

4 

OJ C 97 of 31.3.2012 

EN 

5 

   EN 

 
                                                 
Greece). Spain, Italy and France are in an intermediate position, with more than 15 and less 
than 30 designated qualified entities. In general terms, when Member States have designated a 
single  qualified  entity,  it  is  typically  a  public  authority  in  charge  of  consumer  protection, 
although there are exceptions, such as the Netherlands. 

The Member States that have designated several qualified entities normally include a mix of 
public authorities  responsible for  consumer affairs at local, regional and  national level, plus 
the most representative consumer organisations. The list of qualified entities contains the list 
of  entities  authorised  to  seek  an  injunction  in  another  Member  State,  but  in  many  Member 
States some legal entities that are not included in the list also have the legal standing to bring 
injunctions at national level. Some consumer organisations criticize the excessive margin of 
discretion in deciding which legal entities are included in the list, which may lead to unfair 
and arbitrary decisions. Others also claim that consumer organisations should have the legal 
standing  to  bring  injunctions  in  all  Member  States,  both  for  national  and  for  cross-border 
cases.  

The  study  also  shows  that  whether  injunctions  are  actually  used  depends  on  the  knowledge 
and capabilities of the legal staff entitled to apply them. Experience also shows that, even in 
those  Member  States  where  a  large  number  of  entities  have  the  legal  standing  to  seek 
injunctions, only a small proportion of them make use of this possibility.  

2.5. 

Injunctions with a cross-border dimension: the design of the Directive and the 
situation on the ground. 

In  order  to  properly  assess  the  use  of  injunctions  in  the  EU,  the  concept  of  cross-border 
litigation  needs  to  be  clarified.  It  appears  that  cross-border  injunctions,  i.e.  injunction 
proceedings which include a cross-border element, can take different forms.  

The Directive was crafted to permit qualified entities of Member State A to pursue business 
operators in Member State B if the latter, by trading with consumers in Member State A, were 
breaching consumer laws. In order to make this possible, qualified entities were vested with 
legal standing in foreign courts. The Court in Member State B, served with a request to issue a 
injunction against a trader established within its jurisdiction, would hear and decide the case 
without questioning the legal standing of the qualified entity of Member State A.  

However, one of the main findings of the study is that the Directive’s designation of a ‘cross-
border case’ is only one of two possible forms of injunction proceedings with a cross-border 
dimension, and it is rarely used.  

The second, more common, form of ‘cross-border case’ appears in the same scenario of trade 
from  Member  State  B  into  Member  State  A.  However,  contrary  to  what  the  drafters  of  the 
Directive had in mind, a lawsuit is brought by a qualified entity in Member State A before a 
court in Member State A. The trader, although established abroad, is sued in the country to 
which  he  directs  his  commercial  activity.  Operating  in  this  way  has  the  advantage  that  a 
qualified  entity  can  file  a  case  in  its  own  familiar  jurisdiction  which  applies  the  procedural 
law that it probably knows best. If, in addition, the applicable law is the law of Member State 
A (the lex loci damni principle of Article 6 of ‘Rome II’5), and the problem of the serving of 

5 

Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the 
law applicable to non-contractual obligations (Rome II) OJ L 199, 31.7.2007, p. 40–49 

EN 

6 

   EN 

 
                                                 
legal  documents  abroad  can  be  resolved,  this  second  possibility  of  injunctive  action  is  the 
easiest option to choose. This also makes it possible to seek injunctive relief against traders in 
third countries. 

A  "cross-border"  action  of  a  particular  kind  was  started  in  May  2009  by  DECO6  in 
cooperation  with  France’s  UFC-Que  Choisir  and  Belgium’s  Test-Achats.  The  “coordinated 
action” concerned airlines’ general conditions of carriage (Directive 93/13/EEC). A judgment 
was delivered for Belgium, and obliged three airlines to stop using a number of contract terms 
regarded as unfair. Every step of the consumer organisations was coordinated, including the 
accompanying  publicity  measures  such  as  press  releases.  This  form  of  coordinated  action 
represented a particular type of cross-border cooperation, although it did not formally qualify 
as cross-border litigation. 

2.6. 

Interaction with the CPC Regulation on cross-border infringements. 

The  CPC  Regulation  establishes  a  mutual  assistance  framework  for  national  enforcement 
authorities  which  allows  authorities  to  call  on  each  other  to  seek  investigative  and/or 
enforcement  assistance  in  order  to  stop  practices  that  are  not  compliant  with  the  legislation 
listed  in  the  Annex  to  the  Regulation.  The  CPC  Regulation  aims  at  protecting  collective 
consumer's economic interests and not at handling individual complaints.  

The  2008  report  on  the  injunctions  Directive,  indicated  that  the  CPC  Regulation  had  an 
impact  on  the  use  of  injunctions,  in  particular  experience  showed  that,  since  the  entry  into 
force of the CPC Regulation, most public authorities have opted to use its mutual assistance 
mechanisms when combating an illegal practice by a trader in another Member State, instead 
of directly seeking an injunction before the courts of that Member State, as the first possibility 
could  be  less  costly  for  them.  The  replies  to  the  questionnaire  in  2011  confirm  this  trend, 
although  one  public  authority  of  a  Member  State  highlighted  the  fact  that  injunctions  still 
constitute  a  valuable  tool  for  public  authorities,  which  could  be  used  should  the  CPC 
mechanisms not reach the results expected.  

Finally, several respondents emphasized that the list of legislation contained in the Annex to 
the Directive on injunctions should be aligned with that of the Annex to the CPC Regulation. 

3. 

IMPACT OF THE DIRECTIVE ON CONSUMERS.  

The  replies  to  the  questionnaire  and  the  findings  of  the  study  show  that  injunctions  are  a 
successful tool for policing markets, especially to ensure fair contract terms. In this respect, 
they  have  brought  substantial  benefits  to  consumers  as  a  whole.  However,  their  impact  is 
projected more towards the future rather than being useful for correcting past damage, and it 
is very difficult to quantify in monetary terms. 

Although injunctions do not, as such, provide a remedy for claiming damages for the past, the 
possibility of using injunctions can in itself be of value. As a governance tool, injunctions can 
be used as a deterrent without being applied in Court. 

6 

Associação Portuguesa para a Defesa do Consumidor. 

EN 

7 

   EN 

 
                                                 
Another  important  conclusion  is  that  injunctions work particularly well with market players 
who respect to a certain extent the law. Against rough traders and criminal actors, injunctive 
actions  are  not  always  an  appropriate  mechanism  to  put  a  stop  to  illicit  practices.  Several 
interviewees say that, in such situations, criminal and administrative sanctions like penalties 
and  imposing  specific  restrictions  on  carrying  on  business  activities  may  be  necessary  to 
ensure compliance with consumer protection legislation. 

3.1. 

Reduction in the number of infringements to consumer protection rules 

While most of the respondents and experts interviewed declared that the effect of injunctions 
cannot  only  be  measured  in  terms  of  the  number  of  cases  brought  to  Court,  it  is  also  an 
important option that can be used to convince companies to cease infringements voluntarily. 
For several interested parties, the very possibility of being able to bring injunctive actions has 
an  inherent  deterrent  effect  in  negotiations  with  those  who  infringe  the  legislation.  In  some 
cases, on the other hand, when an injunctive action is successful and declares that a practice 
of a trader is illegal, other traders tend to refrain from using similar practices, even if they are 
not legally bound by the ruling.  

Taking  into  account  the  results  of  the  study  and  the  replies  to  the  questionnaire,  our 
conclusion  is  that  the  Directive  has  to  a  certain  extent  enhanced  compliance  with  consumer 
protection laws among economic operators in certain sectors of the economy, although there 
are not enough data available to estimate this reduction in percentage terms. 

3.2. 

Reduction in consumer detriment 

An important conclusion of the study is that the Directive has had direct qualitative benefits 
for consumers, although it was not necessarily possible to express these benefits in monetary 
terms.  This  is  due  to  the  fact  that,  in  many  cases,  it  is  not  possible  to  establish  the  exact 
number  of  consumers  who  potentially  suffer  damage  as  a  result  of  an  illegal  practice. 
Moreover,  many  contract  terms  which  are  declared  illegal  following  an  injunction  are  not 
related to the price to be paid by consumers.  

In  order  to  assess  the  possible  effect  of  injunctions  in  reducing  consumer  detriment,  a 
particular  attention  should  be  paid  to  unfair  contract  terms  that  can  have  immediate  direct 
affect on consumer obligations under the contract.  

When a Court declares a particular contract term to be null and void, the trader can no longer 
apply that term in all contracts. This benefits the consumer, particularly if the term regulates 
price  increases  or  other  financial  effects,  and  in  such  a  case  the  benefit  can  be  evaluated  in 
monetary  terms,  since  many  consumers  will  reduce  their  future  payments  as  a  direct 
consequence  of  injunctions.  For  instance,  the  "rounding  up"  cases  in  Spain  have  led  to  the 
banning of new illegal charges in a range of sectors (banking, telecommunications, parking).  

For  instance,  in  Austria  an  action  for  injunction  was  brought  against  unfair  terms  in  the 
banking contracts of an Austrian bank. In August 2009 the bank informed its customers in the 
statement of accounts that prices for current accounts were to be increased as from 1 October 
in line with the increase of the consumer-price index for 2008, which amounted an increase of 
3.2%. The bank referred to the index-clause in the Standard Contract Terms, which allowed 
the bank to automatically increase prices for continuing obligations once a year, according to 
the movements of the consumer-price index. This injunction measure had a significant impact 
on consumers, because in spring 2011 most of the other banks, which had used similar terms, 

EN 

8 

   EN 

 
refrained from automatically increasing the price, and this benefited several million clients of 
Austrian banks. This is a clear instance of a successful injunction having a tangible impact on 
compliance with the law, not only with regard to the defendant, but for the whole economic 
sector. Moreover, the benefit for consumers was easy to evaluate in monetary terms.  

Another case where the consumer benefit flowing from the successful proceedings has been 
computed  in  monetary  terms  is  the  Foxtons’  case  in  the  UK  7  (concerning  unfair  terms  in 
lettings  agreements  with  consumer  landlords).  The  test  of  fairness  related  to  Foxtons  a) 
Renewal  Commission  terms,  b)  Commission  on  Sale  of  the  Property,  and  c)  Third  Party 
Renewal  Commission.  The  High  Court  declared  formally  that  certain  terms  in  Foxtons' 
contracts were unfair, and granted an injunction restraining Foxtons from relying on these or 
on  similar  terms,  or  inserting  these  terms  into  future  contracts.  According  to  the  OFT 
consumer benefit amounts to £4.4 million, although one interviewee believes that the positive 
effect might easily turn out to be ten to twenty times higher. 

3.3. 

Effects  of  injunctions  on  individual  consumers  affected  by  infringements: 
possibilities of redress in different Member States. 

As  a  general  rule,  the  injunction  procedure  introduced  by  the  Directive  does  not  enable 
consumers  who  have  suffered  harm  because  of  an  illicit  practice  to  obtain  compensation. 
However,  the  possibilities  of  redress  for  consumers  affected  by  a  trader's  practice  that  has 
been declared illegal following an injunction varies from one Member State to another. Some 
Member  States  pass  on  the  impact  of  an  injunction,  to  a  certain  extent,  to  the  affected 
consumers. Several of those responding to the questionnaire and interviewees, underlined the 
importance  of  extending  the  effects  of  injunctive  actions  to  include  individual  consumers, 
enabling them to obtain appropriate compensation for the harm suffered. Some possibilities of 
redress, of both an individual and a collective nature, which are available to consumers in the 
various Member States,are described below. 

a) Individual redress 

In  most  Member  States,  there  is  no  link  between  an  injunctive  action  and  the  granting  of 
compensation to consumers for the harm suffered due to an illegal practice. Thus, consumers 
whose rights have been infringed have to enforce their rights by bringing an action before an 
ordinary  Court,  either  individually  or  collectively,  in  those  Member  States  where  collective 
redress  mechanisms  exist.  Moreover,  in  many  Member  States,  Courts  dealing  with  such 
proceedings initiated by consumers to obtain compensation are not bound by the earlier ruling 
on the injunctive action. Consumers seeking damages will have to prove the infringement, the 
damage and the causal link between the two. 

However,  in  some  Member  States  the  situation  is  different.  For  instance,  according  to  the 
Bulgarian Commission for Consumer Protection, consumers may invoke an enforceable Court 
decision on a claim for an injunction when filing a claim for damages, having to prove only 
the amount of damage suffered. In Luxembourg, the consumer can use the court decision on 
an injunction to request the "juge de paix" to award him damages. In Ireland, it is open to the 
Court to require the trader to pay damages to a consumer who has suffered loss as a result of 
the  trader's  actions.  In  Malta,  in  connection  with  the  administrative  proceedings,  the 
restitution of any money or property given by the consumer may be ordered. 

7 

http://www.oft.gov.uk/OFTwork/consumer-enforcement/consumer-enforcement-completed/foxtons 

EN 

9 

   EN 

 
                                                 
In  other  Member  States,  consumers  affected  by  illegal  practice  can  obtain  compensation 
through the enforcement of a Court ruling, and the Court may then determine how consumers 
affected  by  the  illegal  practice  should  be  compensated,  for  instance  by  making  the  trader 
repay the amounts unduly paid.  

In  The  Netherlands,  a  Court  accepted  that  the  wrongfulness  of  the  behaviour  of  a  company 
was  also  established  with  regard  to  the  individual  claimant  in  as  far  as  he  belonged  to  the 
group mentioned in the declaration. This means that the judgment of the wrongfulness of the 
behaviour  in  a  collective  proceeding  can  be  taken  as  a  starting  point  in  a  later  follow  on 
action.  The  injunction  procedure  thus  helped  an  individual  claimant  to  establish  the 
wrongfulness of the defendant’s behaviour. 

b) Collective redress 

In some of the Member States where systems of collective redress exist, the successful pursuit 
of an injunction may have some consequences on a collective action initiated by the affected 
consumers  to  claim  damages  resulting  from  the  illegal  practice,  in  addition  to  the  normal 
effects of a successful injunction mentioned in the previous point. 

In Spain, it is possible to append to the injunction a request to pay back the amounts received 
from consumers as a result of an unlawful practice, and the ruling which declares a practice as 
illegal  will  also,  in  this  case,  set  the  damages  to  be  paid  by  the  trader.  If  the  affected 
consumers  have  been  identified,  the  court  will  determine  the  amount  each  of  them  must 
receive. However, there are some procedural obstacles, which make it difficult in practice to 
combine both the injunction and the application for damages. 

In  The  Netherlands,  parties  acting  on  behalf  of  consumers  who  have  incurred  damages  can 
seek  a  declaratory  judgment  stating  that  an  infringement  has  been  committed  by  the  party 
causing the damage. This declaratory judgment is considered to be an incentive for parties to 
reach  a  settlement,  and  to  make  the  settlement  binding  through  the  use  of  the  Dutch  Class 
Actions Act (Wcam8). Under the terms of the Collective Settlements of Mass Damages Act 
2005,  the  Amsterdam  court  of  appeal  can  make  a  settlement  on  mass  damages  between  an 
entity representing collective interests and the person(s) causing the damages binding on all 
class  members.  The  starting  point  is  an  agreement  that  seeks  to  compensate  collective 
damages. The parties that have reached the agreement issue a joint request to the Amsterdam 
court to declare the agreement binding. Crucial to the Wcam is the fact that the entire group of 
victims  is  bound  by  the  settlement  agreement  once  the  Court  has  declared  the  agreement 
binding. However, there is a possibility to ‘opt out’. One of the limitations of this system is 
that  it  only  works  if  the  parties  reach  an  agreement,  and  even  a  decision  establishing  the 
wrongfulness of the behaviour is not always sufficient to ensure that a settlement is reached. 

In Bulgaria, a claim for compensation of the injured parties can be filed at the same time as an 
action for injunction. The Court sets a time limit by which the injured parties may declare that 
they will take part in the proceedings. After handing down its decision, the court may stipulate 
that compensation is to be paid to the injured parties.  The  court judgment is  binding on  the 
infringer, the plaintiffs and all persons who suffered damage from the same infringement and 
have not declared that they will bring an individual claim. The action for injunction precedes 
the action for compensation. If the action for injunction is successful, a group of consumers 

8 

Wet collectieve afwikkeling massaschade 

EN 

10 

   EN 

 
                                                 
can bring an action for compensation. In this (new) court action they will not have to prove 
infringement of the legislation (illegal practice or unfair term); they will have to prove only 
the amount of damage suffered. Although the representative action may be considered in the 
same proceedings as the action for injunction, or in separate proceedings, courts quite often 
split the two actions into separate proceedings. 

In Sweden, a central role in collective consumer enforcement is also played by the Consumer 
Ombudsman, who can file a group action for damages on behalf of a plurality of consumers in 
injunction proceedings. However, this possibility has been used in only a limited number of 
cases. 

4. 

OBSTACLES TO THE EFFECTIVENESS OF INJUNCTIONS 

The  obstacles  that  prevent  the  injunctive  actions  to  be  effective  can  be  classified  in  the 
following  groups:  financial  risks,  length  of  the  proceedings,  complexity  of  the  proceedings, 
limited legal effect of the rulings and enforcement of the rulings. 

4.1. 

Financial risk linked to the proceedings 

Costs  of  the  proceedings  are  indicated  as  one  of  the  major  obstacles  to  a  wider  use  of 
injunctions. Although Court fees are generally low and lawyers are not exorbitantly expensive 
in  all  countries,  cost  remains  a  major  deterrent,  mainly  due  to  the  "loser  pays  principle".  In 
order to limit the risk of paying the fees and costs of the opposing party, only cases that are 
‘sure  to  be  won’  are  taken  to  court.  However,  qualified  entities  that  are  better  funded  are 
occasionally prepared to take a case to the Courts, accepting the risk of losing when a matter 
of  principle  is  at  stake.  But  even  winning  a  case  does  not  prevent  qualified  entities  from 
incurring a financial risk: stakeholders also mention the risk of the costs of proceedings not 
being reimbursed even if the plaintiff wins the case, because the defendant is unable to pay 
the  costs.  Moreover,  in  some  Member  States  such  as  Austria,  there  is  an  obligation  on  the 
party  seeking  the  injunction  to  pay  damages  if  the  decision  reached  in  interlocutory 
proceedings is subsequently set aside in the main proceedings. 

The  financial  risk  of  injunctions  is  mitigated  in  some  Member  States  where  organizations 
defending collective interests are exempted from Court fees and can even apply for a subsidy 
under the general legal aid system. This is the case, for instance, in Spain and it is also under 
consideration  in  The  Netherlands.  In  Spain,  this  right  to  legal  aid  includes  lawyers’  and 
solicitors’  fees,  publication  of  announcements  or  edicts,  copies,  certificates,  etc.  However, 
even  in  those  Member  States  where  consumer  organizations  benefit  from  legal  aid  systems, 
payment  for  the  advertisements  in  the  mass  media  that  are  required  when  consumer 
organisations initiate collective claims for damages, in addition to the injunction, is one of the 
main problems that consumers associations face, because this cost is not reimbursed. 

In  Bulgaria,  consumer  organisations  do  not  receive  any  subsidy  for  Court  actions,  but 
financing is provided to consumer organisations according to what actions they have taken in 
favour  of  consumers  in  the  previous  year.  One  of  the  criteria  used  for  the  allocation  of  the 
State  subsidy  assigned  to  consumer  organisations  is  the  number  of  actions  for  injunction 
brought to court during the previous year. In addition,in Bulgaria there are additional criteria 
set  out  on  the  Civil  Code  Procedure  with  regard  the  admissibility  of  claims,  whereby 
‘qualified entities’ have to prove their capacity to assume the charges related to the conduct of 
the case, including costs. 

EN 

11 

   EN 

 
4.2. 

Length of the proceedings 

The  second  obstacle  is  the  length  of  the  proceedings. The concept of what length would be 
acceptable varies from one Member State to another. It is worth pointing out that the length of 
the proceedings is not linked to the injunction mechanism in itself, but rather to the inherent 
slowness of the national Court proceedings. 

In  Sweden,  the  existence  of  a  special  Court,  the  Market  Court,  which  deals  predominantly 
with injunction proceedings for the protection of collective consumer interests, guarantees a 
relatively  speedy  procedure  in  such  cases.  Nevertheless,  the  average  length  of  proceedings 
before the Market Court is still around 11-12 months. In other Member States, the length of 
the  whole  procedure  going  through  three  Court  hearings  may  even  exceed  5  years  in  some 
complex cases.  

Another  obstacle  related  to  the  length  of  the  proceedings  is  when  the  enforcement  can  be 
requested.  For  instance,  in  Spain,  although  the  law  provides  as  a  general  rule  for  the 
provisional execution of any sentence and there are no special rules for collective actions that 
contradict this general rule, normally the courts have decided not to allow execution because 
of  the  provisional  nature  of  these  pronouncements,  and  the  qualified  entities  are  therefore 
obliged to wait until the final decision. 

In Bulgaria, the entry into force of the provisions of the new Code of Civil procedure in 2008 
meant  that  the  court  decisions  on  actions  for  injunction,  in  case  of  appeal,  can  only  be 
enforced after the third instance court has taken a decision. 

4.3. 

Complexity of the procedure 

Most  stakeholders  and  experts  consider  that  another  major  deterrent  to  the  wider  use  of 
injunctions is the complexity, real or perceived of the procedure. This situation is aggravated 
in  cross-border  cases,  due  to  the  ignorance  of  substantive  and  procedural  rules  in  other 
Member States. 

In connection with this, one of the difficulties in cross-border cases that has been mentioned 
by stakeholders and experts is the difficulty in applying the rules of private international law, 
in  particular  those  concerning  jurisdiction  (Regulation  44/2001  on  jurisdiction,  recognition 
and enforcement of judgements in civil and commercial matters, "Brussels I"9) and applicable 
law  (Regulation  864/2007  on  the  applicable  law  on  the  non-contractual  obligations,  "Rome 
II"10). It is difficult to understand from the submissions by stakeholders whether this is due to 
a  lack  of  knowledge,  inexperience  or  the  weakness  of  the  law.  The  harmonisation  of  the 
private  international  law  rules  at  Union  level  has  without  doubt  increased  legal  certainty 
compared  to  the  situation  a  couple  of  years  ago  where  each  Member  State  applied  its  own 
rules.  Nevertheless,  despite  the  harmonisation  of  these  rules,  doubts  on  the  interpretation  of 
these rules may remain pending further guidance by the ECJ on their application, especially as 
regards  the  Regulation  on  the  applicable  law  on  the  non-contractual  obligations  "Rome  II", 
which only applies since recently in the Union. 

9 
10 

OJ L 12, 16.1.2001, p. 1–23 
OJ L 199, 31.7.2007, p. 40–49 

EN 

12 

   EN 

 
                                                 
The complexity of the injunctions in cross-border cases is compounded by other problems of 
a  more  practical  nature,  such  as  language  barriers  and  also  the  difficulty  of  accessing 
company data abroad. One of the problems is to identify a foreign trader and find his address. 
This  makes  the  sending  of  Letters  of  Caution  or  filing  a  lawsuit  more  difficult.  Even  if  the 
trader  is  identified,  serving  notices  on  foreign  companies  can  take  a  long  time  and  be 
unsuccessful, particularly when traders give only P.O. boxes or fake addresses11. 

4.4. 

Limited effect of the rulings 

In  many  Member  States,  a  ruling  is  mandatory  only  in  respect  of  the  case  and  the  parties 
involved. 

In  some  Member  States  this  principle  is  less  strictly  applied,  particularly  with  regard  to  the 
nullity  of  unfair  contract  terms.  France  is  a  prime  example  of  the  strict  application  of  this 
principle, since the annulment of unfair clauses only affects the future contracts of the trader, 
thereby  making  lawsuits  against  unfair  terms  useless  when  the  disputed  contract  term  is  no 
longer proposed by the trader to the consumers.  

In  Spain,  when  a  clause  is  declared  unfair,  the  consequence  is  the  clause  becomes  null  and 
void with effects ex tunc, which involves reverting to the status quo ante and the obligation to 
return the money illegally paid to the affected consumers in application of the unfair clause. 
Moreover, in some cases the courts ruled that the effects of the nullity should be extended to 
other companies using the same contract term. 

Another problem is the fact that the scope of an injunction is not pan-European, meaning that 
a  rogue  trader  can  move  from  one  Member  State  to  another,  repeating  its  activities.  A 
stakeholder  also  mentioned  the  fact  that,  in  many  jurisdictions,  orders  cannot  be  served 
against  individuals.  In  the  UK,  the  OFT  can  take  action  for  misleading  advertising  against 
“any person” involved in the dissemination of an advertisement (such as company Directors 
and Chief Executive Officers). 

4.5. 

Enforcement of rulings 

The  difficulties  highlighted  in  the  previous  sections  have  related  mainly  to  the  declarative 
stage  of  the  injunction  proceedings.  From  this,  it  may  be  assumed  that,  once  the  obstacles 
have been overcome and the qualified entity has obtained a final favourable decision in Court, 
the case is resolved. However, this is not necessarily true, as on many occasions the taking of 
a favourable decision does not mean that it is actually enforced and that the infringement is 
stopped.  Many  stakeholders  underlined  the  difficulty  of  ensuring  the  settlement  of  adopted 
decisions,  especially  in  cases  where  the  seller  or  service  provider  ignores  the  decision, 
regardless  of  the  penalties  enforced.  Experience  has  shown  that  infringements  can  only  be 
properly  challenged  when  traders  expect  a  sanction  which  is  sufficiently  dissuasive  and 
actually  enforced.  If  the  sanction  is  not  sufficiently  dissuasive,  many  traders  consciously 
accept the cost of legal proceedings, which is low by comparison with the profits made. 

The  sanctions  imposed  for  non-compliance  with  injunction  rulings  vary  from  one  Member 
State  to  another,  but  they  are  generally  considered  as  not  dissuasive  enough.  In  The 

11 

Regulations  (EC)  No  1393/2007  and  No  1206/2001  have  increased  the  speed  and  legal  certainty  of 
cross-border service of documents and taking of evidence.  

EN 

13 

   EN 

 
                                                 
Netherlands,  it  is  possible  to  impose  the  payment  of  a  lump  sum  where  the  decision  of  the 
Court is not complied with. When this occurs, and the payment of a lump sum is imposed, this 
sum goes to the other party. In Sweden, injunctions are issued under penalty of a fine in the 
case of non-compliance. In Bulgaria, a financial penalty ranging from 5000 to 23 000 BGN12 
is imposed on any person who fails to comply with an injunction order. In Spain, there is a 
daily  penalty  for  non-compliance  ranging  from  600  to  60.000  €  per  day  of  delay  in 
implementing  the  court  decision.  Theoretically,  anyone  who  persistently  refuses  to  comply 
with  a  court  decision  may  face  criminal  sanctions  in  Spain,  but  to  our  knowledge  this  has 
never happened in an injunctions-related case. 

5. 

NEXT STEPS 

5.1. 

Introduction 

Despite  its  limitations,  injunctive  actions  are  regarded  by  the  overwhelming  majority  of 
stakeholders  and  experts  as  a  useful  tool  with  considerable  potential  if  the  shortcomings 
identified are addressed. 

In the European Parliament resolution of 2 February 2012 on ‘Towards a Coherent European 
Approach  to  Collective  Redress’,  the  European  Parliament  takes  the  view  that  "injunctive 
relief also plays an important role in safeguarding rights which citizens and companies enjoy 
under  EU  law  and  believes  that  the  mechanisms  introduced  under  Regulation  (EC)  No 
2006/2004  on  consumer  protection  cooperation,  as  well  as  Directive  2009/22/EC  on 
injunctions  for  the  protection  of  consumer  interests  can  be  significantly  improved  so  as  to 
foster cooperation and injunctive relief in cross-border situations". 

Possible measures suggested by stakeholders to improve the effectiveness of injunctions: 

a) Non legislative measures 

There are measures which may increase the use of injunctions and their effectiveness without 
changing  the  legal  framework,  either  at  European  or  at  national  level.  One  possible  such 
measure  is  organising  awareness-raising  campaigns  and  training  for  qualified  entities  in 
the use of injunctions, as many of them do not have enough knowledge to make use of them. 
In  the  same  vein,  some  stakeholders  suggest  the  introduction  of  mechanisms  (such  as  a 
website)  to  give  publicity  to  injunction  cases  across  Europe.  Such  a  website  could  also 
contain  information  on  the  scope  of  injunctions  and  the  procedural  rules  in  the  different 
Member States, translated into all the official languages of the EU.  

b) Possible changes in the legal framework 

Most  stakeholders  believe  that  the  Directive  is  a  straightforward,  well  crafted,  piece  of 
legislation.  However,  it  appears  that  the  level  of  use  and  effectiveness  of  injunctions  varies 
from  one  Member  State  to  another  more  than  would  be  desirable.  The  Directive  contains 
some  basic  rules,  but  leaves  considerable  latitude  for  Member  States  to  design  the 
characteristics of injunctive actions, including the procedural rules, as well as their scope and 
effects. Unequal effectiveness of injunctions in different Member States derives largely from 

12 

From 2.556 to 11.759 €, according to the exchange rate of 21 June 2012.  

EN 

14 

   EN 

 
                                                 
differences  in  the  way  that  Member  States  have  transposed  the  Directive  into  domestic  law 
and from differences in their procedural and substantive law. Several respondents, including 
some public authorities of Member States, advocate a greater degree of harmonization (with 
regard to time limits for introducing the action, the deadline for rendering a court decision and 
costs)  in  the  injunction  procedures  of  the  various  Member  States,  at  least  for  cross-border 
cases. In any event, it would be appropriate for those provisions that are particularly useful for 
improving the effectiveness of injunctions used in some Member States to be introduced into 
the others. 

Stakeholders  have  suggested  a  number  of  possible  measures  that  would  ensure  that 
injunctions  are  more  frequently  used  and  are  more  effective.  It  has  been  suggested  to 
introduce  some  of  the  measures  which  already  exist  in  some  Member  States  at  European 
level. The most important of these are as follows: 

1. 

2. 

3. 

4. 

Extension  of  the  scope  of  application  of  the  Directive  to  all  consumer  protection 
rules.  Several  stakeholders  are  in  favour  of  extending  the  scope  of  injunctions 
beyond the list included in the Annex, as is already the case in some Member States. 
For  instance,  laws  on  the  protection  of  privacy  and  personal  data  are  increasingly 
regarded as "consumer laws". 

Extension  of  the  effects  of  the  decisions.  Most  stakeholders  take  the  view  that 
consumers  should  benefit  directly  from  a  judgment  following  a  successful  case, 
rather than being obliged to introduce new proceedings to enforce their rights. Clear 
provisions on the possibility of compensating consumers and the method of doing so 
should be introduced into the Directive. Furthermore, the limitation period for claims 
by  consumers  affected  by  the  legal  infringement  must  be  suspended  during  the 
injunction  proceedings.  When  a  contract  term  is  declared  illegal,  the  effect  of  this 
decision should be extended to all similar present and future contracts (it is already 
the case in some Member States).  

Fast-track proceedings for interim measures. Several stakeholders were in favour of 
a  provision  requiring  the  mandatory  use  of  an  accelerated  procedure  for  all  actions 
for injunction, and not only "where appropriate", as provided for by Article 2 of the 
Directive.  However,  as  different  national  legislations  do  not  have  the  same 
understanding of the meaning "accelerated procedure", the Directive should contain 
some requirements relating to the accelerated procedure, such as regarding deadlines 
for rendering the court’s decision on the injunction.  

Right  to  information.  Several  stakeholders  indicated  that  qualified  entities  should 
have  the  right  of  access  to  the  name  and  legal  address  of  businesses  involved  in 
unlawful  practices.  Companies  should  be  obliged  to  make  available  the  standard 
contracts that they use, as is the case in Spain, where standard contract terms have to 
be  included  in  the  "Registro  de  Condiciones  Generales  de  la  Contratación".  Most 
stakeholders  are  also  of  the  opinion  that  decisions  should  be  published  in  order  to 
inform consumers and to dissuade traders. This is already the case in some Member 
States.  

5. 

Financing.  Most  stakeholders  consider  that  the  “loser  pays"  principle  should 
continue  to  apply  in  actions  for  injunction.  Some  however  acknowledged  that  this 

EN 

15 

   EN 

 
principle  should  be  applied  in  a  flexible  manner  which  is  favourable  to  qualified 
entities, as is the case in some Member States.  

6. 

Enforcement  of  decisions  should  be  improved.  To  this  end,  several  stakeholders 
consider  that  Member  States  should  be  required  to  impose  dissuasive  penalties  for 
non-compliance  with  injunction  orders,  in  order  to  ensure  that  unfair  business 
practices are unprofitable for traders. 

Finally, several stakeholders, including public authorities from some Member States, declared 
that a mechanism of collective redress for consumers should be introduced at European level, 
in addition to possible improvements on injunctions. 

6. 

CONCLUSION  

Based on the above findings, the Commission draws the following conclusions concerning the 
application of the Directive: 

Despite  its  limitations,  injunctive  actions  constitute  a  useful  tool  for  the  protection  of  the 
collective  interests  of  consumers.  Qualified  entities  are  gradually  becoming  aware  of  the 
possibilities offered to them by the Directive and gaining experience with its use. 

However,  important  disparities  exist  among  Member  States  in  its  level  of  use  and 
effectiveness.  In  any  event,  even  in  those  Member  States  where  injunctions  are  considered 
quite effective and are widely used, their potential is not fully exploited due to a number of 
shortcomings  identified  in  this  report.  The  most  important  are:  the  high  costs  linked  to  the 
proceedings, the length of the proceedings, the complexity of the procedures, the relatively 
limited  effects  of  the  rulings  on  injunctions  and  the  difficulty  of  enforcing  them.  These 
difficulties are even more present in injunctions with a cross-border dimension.  

The  Commission  takes  note  of  the  issues  raised  by  stakeholders  and  their  suggestions  to 
adress them. The Commission will continue monitoring the application of the Directive in the 
Member  States.  It  will  further  assess  how  best  to  address  with  Member  States  the  issues 
identified  in  this  report,  and  how  to  achieve  improvements  within  the  current  legal 
framework.  The  Commission  considers  that  there  does  not  appear  to  be  sufficiently  strong 
reasons  to  propose  amendments  to  the  Directive  at  this  stage,  and  will  review  the  situation 
when preparing the subsequent report on its application.  

EN 

16 

   EN