COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS "Towards a European Horizontal Framework for Collective Redress"
Date: 2013-06-11
Institutions: European Commission
Subjects: collective interest, harmonisation of standards, legal action, public consultation, right of action

EUROPEAN 
COMMISSION 

Strasbourg, 11.6.2013  
COM(2013) 401 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

"Towards a European Horizontal Framework for Collective Redress" 

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   EN 

 
 
 
 
 
  
 
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

"Towards a European Horizontal Framework for Collective Redress" 

1. 

INTRODUCTION 

1.1. 

Objectives of this Communication 

In  economically  challenging  times,  a  sound  legal  environment  and  efficient  justice  systems 
can contribute decisively to the European Union’s goal of achieving competitive growth. The 
major policy objective for the EU is to remain competitive at global level and to have an open 
and  functioning  single  market,  as  stressed  in  the  Europe  2020  strategy  and  in  the  Single 
Market  Act.  Legal  certainty  and  a  reliable  legal  environment  are  of  key  importance  in  this 
context. 

EU justice policy aims to develop a genuine area of freedom, security and justice that serves 
citizens  and  businesses1.  Both  citizens  and  businesses  should  be  able  to  obtain  effective 
redress, in particular in cross-border cases and in cases where the rights conferred on them by 
European Union law have been infringed. This may require procedural law solutions on the 
basis of EU law. Work carried out in the area of procedural law so far has produced a number 
of  solutions  facilitating  effective  redress:  the  European  Small  Claims  Procedure2  is  a 
simplified  and  cost-effective  European  civil  procedure  that  facilitates  consumer  claims 
resulting from cross-border sales. The European Order for Payment Procedure3 contributes to 
fast cross-border debt recovery, making it easier for businesses to manage their claims. The 
Mediation  Directive4,  which  is  applicable  in  all  cross-border  civil  disputes,  promotes 
Alternative  Dispute  Resolution  that  saves  costs  and  efforts  and  reduces  the  time  needed  for 
cross-border  litigation.  In  the  field  of  consumer  policy5  the  recently  adopted  Directive  on 
consumer  Alternative  Dispute  Resolution6  together  with  Regulation  on  consumer  Online 
Dispute Resolution7 go further by requiring Member States to ensure that contractual disputes 

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their  welfare,  effectively  protecting 

See  the  Commission's  Communication  "Action  Plan  Implementing  the  Stockholm  Programme"  COM 
(2010)  171  20.4.2010.  See  Stockholm  Programme  —  An  open  and  secure  Europe  serving  and 
protecting citizens, adopted by the European Council on 9.12.2009, OJ C 115, 4.5.2010, p.1. 
Regulation (EC) No 861/2007 establishing a European Small Claims Procedure, OJ L 199, 31.7.2007. 
Regulation  (EC)  No  1896/2006  creating  a  European  Order  for  payment  procedure,  OJ  L  399, 
30.12.2006. 
Directive  2008/52/EC  on  certain  aspects  of  mediation  in  civil  and  commercial  matters,  OJ  L  136, 
24.5.2008. 
Communication  from  the  c-Commission  to  the  Council,  the  European  Parliament  and  the  European 
Economic and Social Committee, "EU Consumer Policy strategy 2007-2013 Empowering consumers, 
enhancing 
them",  COM(2007)99final,  {SEC(2007)321}, 
{SEC(2007)322},  {SEC(2007)323},  13.03.2007  and  Communication  from  the  Commission  to  the 
European  Parliament,  the  Council,  the  Economic  and  Social  Committee  and  the  Committee  of  the 
Regions 
growth", 
COM(2012)225final,{SWD(2012) 132 final}, 22.05.2012. 
P7_TA(2013)0066  Alternative  consumer  dispute  resolution,  Committee  on  the  Internal  Market  and 
Consumer Protection PE487.749 European Parliament legislative resolution of 12 March 2013 on the 
proposal for a directive of the European Parliament and of the Council on alternative dispute resolution 
for  consumer  disputes  and  amending  Regulation  (EC)  No  2006/2004  and  Directive  2009/22/EC 
(Directive on consumer ADR) (COM(2011)0793 – C7-0454/2011– 2011/0373(COD)). 
P7_TA(2013)0065  Online  consumer  dispute  resolution,  Committee  on  the  Internal  Market  and 
Consumer Protection PE487.752 European Parliament legislative resolution of 12 March 2013 on the 
proposal for a regulation of the European Parliament and of the Council on online dispute resolution for 

"A  European  Consumer  Agenda 

-  Boosting 

confidence 

and 

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between a consumer and a trader arising from the sale of goods or the provision of services 
can be submitted to an alternative dispute resolution entity. 

The above-mentioned  legal instruments, together with other instruments  that  go to make up 
the European Union’s acquis in the area of justice and consumer protection, respond to very 
concrete and well identified needs of citizens and businesses. In accordance with the principle 
of subsidiarity, they leave room also for national judicial solutions and redress systems. 

Collective redress is one of the mechanisms that has been analysed since several years by the 
EU institutions on the basis of experience made in several Member States as to its capacity to 
contribute  to  the  development  of  the  European  area  of  justice  to  ensure  a  high  level  of 
consumer protection and to improve the enforcement of the EU law in general, including the 
EU's competition rules, while serving economic growth and facilitating access to justice. The 
Commission  has  continued  and  deepened  this  analysis  between  2010  and  2012  to  provide 
answers to three basic questions:  

(1) what is the problem that is not yet satisfactorily addressed by existing instruments,  

(2)  could  a  particular  legal  mechanism,  such  as  a  possible  European  collective  redress 
mechanism, solve this problem? 

(3) how could such a mechanism be reconciled with the requirement of Article 67(1) TFEU, 
according  to  which  the  Union,  while  establishing  a  European  area  of  freedom,  justice  and 
security, is asked to respect the different legal systems and traditions of the Member States, in 
particular in areas (such as procedural law) which are well established at national level while 
being rather new at EU level. 

For  the  Commission,  any  measures  for  judicial  redress  need  to  be  appropriate  and  effective 
and bring balanced solutions supporting European growth, while ensuring effective access to 
justice.  Therefore,  they  must  not  attract  abusive  litigation  or  have  effects  detrimental  to 
respondents regardless of the results of the proceedings. Examples of such adverse effects can 
be seen in particular in ‘class actions’ as known in the United States. The European approach 
to  collective  redress  must  thus  give  proper  thought  to  preventing  these  negative  effects  and 
devising adequate safeguards against them. 

In  2011,  the  Commission  carried  out  a  horizontal  public  consultation  ‘Towards  a  coherent 
European  approach  to  collective  redress’.  Its  aim  was,  inter  alia,  to  identify  common  legal 
principles on collective redress and to examine how such common principles could fit into the 
EU legal system and into the legal orders of the 27 EU Member States. The consultation also 
explored the areas in which different forms of collective redress could help to better enforce 
EU legislation or protect the rights of EU citizens and businesses. 

The European Parliament decided to provide its input to the European debate by adopting a 
resolution based on a comprehensive own-initiative report on collective redress8. 

This Communication reports the main views expressed in the public consultation and reflects 
the  position  of  the  Commission  on  some  central  issues  regarding  collective  redress.  It  is 
accompanied by a Commission Recommendation, which recommends that all Member States 
of  the  European  Union  have  national  collective  redress  systems  based  on  a  number  of 
common European principles. The Recommendation advocates a horizontal approach, and its 
content therefore also applies to the field of competition law, an area for which specific rules 

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(Regulation  on  consumer  ODR) 

consumer  disputes 
2011/0374(COD)) (Ordinary legislative procedure: first reading) 
European  Parliament  resolution  of  2  February  2012  "Towards  a  Coherent  European  Approach  to 
Collective Redress". 

(COM(2011)0794  –  C7-0453/2011– 

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– justified by the specificities of competition law – are included in a proposal for a Directive 
on  certain  rules  governing  actions  for  damages  under  national  law  for  infringements  of  the 
competition  law  provisions  of  the  Member  States  and  of  the  European  Union9.  While  the 
Recommendation  encourages  all  Member  States  to  follow  the  principles  suggested  therein, 
the  proposed  Directive  leaves  it  to  Member  States  whether  or  not  to  introduce  collective 
redress actions in the context of the private enforcement of competition law.10  

1.2.  What is collective redress? 

Collective redress is a procedural mechanism that allows, for reasons of procedural economy 
and/or efficiency of enforcement, many similar legal claims to be bundled into a single court 
action.  Collective  redress  facilitates  access  to  justice  in  particular  in  cases  where  the 
individual  damage  is  so  low  that  potential  claimants  would  not  think  it  worth  pursuing  an 
individual  claim.  It  also  strengthens  the  negotiating  power  of  potential  claimants  and 
contributes  to  the  efficient  administration  of  justice,  by  avoiding  numerous  proceedings 
concerning claims resulting from the same infringement of law.  

Depending  on  the  type  of  claim,  collective  redress  can  take  the  form  of  injunctive  relief, 
where cessation of the unlawful practice is sought, or compensatory relief, aimed at obtaining 
compensation 
the  Commission 
Recommendation  accompanying  this  Communication  address  both  forms  of  collective 
redress, without interfering with means of injunctive relief already in place in Member States 
on the basis of Union law.  

suffered.  This  Communication  and 

for  damage 

It is indeed important to bear in mind that actions seeking injunctions or damages for alleged 
violations of different rights or cessation of unlawful practice are civil disputes between two 
private  parties11,  including  when  one  party  is  a  ‘collective’,  e.g.  a  group  of  claimants.  Any 
violation of rights and any consequent injunction or compensation for damage is determined 
only at the time of the court decision12 in the case13. In line with the principle of the rule of 
law, the defending party (respondent) to the civil litigation is not considered as having acted 
improperly or violated any rights unless and until this is ruled by the court14.  

1.3. 

State of play on collective redress in the European Union 

EU  legislation  and  international  agreements  ratified  by  the  EU  require  Member  States  to 
provide for collective injunctive relief in certain areas. In the area of consumer law, as a result 
of  the  Directive  on  Injunctions15,  qualified  consumer  protection  authorities  and  consumer 
organisations are authorised to commence proceedings before the courts or public authorities 

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[ADD reference COM(2013)XXX when known] 
For the Commission, the horizontal Recommendation and the sector-specific Directive are a "package" 
that, seen as a whole, reflects a balanced approach deliberately chosen by the Commission. While the 
adoption  procedures  differ  for  both  measures  under  the  Treaties,  significant  changes  to  this  balanced 
approach would require the Commission to reconsider its proposal. 
Also a public authority could be a claimant or defendant in civil disputes when it is not exercising its 
public power but acting under civil law.  
Unless  it  is  a  ‘follow-on’  damages  action  that  requires  the  prior  finding  of  an  infringement  by  a 
competent public authority, such as a competition authority. 
For  this  reason,  it  is  not  appropriate  to  refer  to  ‘victims’,  ‘harm’  or  ‘infringements’  in  the  context  of 
private collective actions before the court decides that damage has been caused by a particular violation 
of the law. 
Research carried out in Germany showed that around 60 % of (injunctive) actions brought by consumer 
protection  authorities  or  associations  were  successful  in  a  given  time  period.  This  percentage  is  high 
because  the  claimants  select  the  cases  carefully.  Nevertheless,  in  40 %  of  the  cases  no  violation  or 
the  court.  See  Meller-Hannich:  Effektivität  kollektiver 
illegal  activity  was 
Rechtschutzinstrumente, 2010. 
Directive 2009/22/EC, OJ L 110, 1.5.2009, p. 30. 

found  by 

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in  all  Member  States  to  request  the  prohibition  of  practices  that  infringe  national  and  EU 
consumer protection rules. In the area of environmental law, the Aarhus Convention requires 
Member  States  to  ensure  access  to  justice  with  regard  to  infringements  of  environmental 
standards16. All Member States thus have procedures in place which allow claimant  parties, 
acting in a collective or representative way, to seek an injunction to stop illegal practices. 

Procedures to bring collective claims for compensatory relief have been introduced also in a 
number  of  Member  States,  so  far  as  a  result  of  national  developments  in  justice  policy. 
Instruments  on  collective  compensatory  relief  do  not  yet  exist  at  EU  level.  Existing 
mechanisms  whereby  compensation  can  be  claimed  by  a  group  of  individuals  harmed  by 
illegal  business  practices  vary  between  the  Member  States17.  Major  differences  in  the 
mechanisms have to do with their  scope,  their  availability  to representative organisations or 
individuals  as  claimants,  their  availability  to  businesses  and  in  particular  SMEs,  how  the 
claimants group is formed (‘opt-in’ or ‘opt-out’), how an action is financed and how an award 
is distributed. 

The  Commission  has  worked  for  several  years  to  develop  European  standards  of 
compensatory  collective  redress  in  the  field  of  competition  and  consumer  law.  It  adopted  a 
Green Paper on antitrust actions in 200518 and a White Paper in 200819, examining the idea of 
integrating collective redress as a further instrument for the enforcement of EU competition 
rules by private parties. In 2008, the Commission also published a Green Paper on consumer 
collective redress20. 

Stakeholders raised the issue of inconsistencies between the different Commission initiatives 
on  collective  redress,  a  fact  which  points  to  the  need  for  a  more  coherent  system.  Indeed, 
collective redress is a procedural tool that can be relevant for EU policies in areas other than 
competition  or  consumer  protection.  Good  examples  are  financial  services,  environmental 
protection,  data  protection21  or  non-discrimination.  The  Commission  therefore  deems  it 
necessary to increase policy coherence and to take a horizontal approach on collective redress 
on the basis of a public consultation carried out in 201122. 

2. 

MAIN OUTCOMES OF THE PUBLIC CONSULTATION 

2.1. 

Stakeholders’ contributions 

The Commission's public consultation on collective redress met with a considerable response: 
310 replies were received from other stakeholders, and 300 people attended a public hearing 
on 5 April 2011. In addition, over 19 000 replies were received in the form of mass mailing 

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the 

the 

and 

requested 

Commission 

European  Union’ 

The  Member  States  have  implemented  this  by  giving  non-governmental  organisations  standing  to 
challenge administrative decisions in environmental matters before the courts. 
See e.g. the 2008 study ‘Evaluation of the effectiveness and efficiency of collective redress mechanisms 
in 
at 
by 
http://ec.europa.eu/consumers/redress_cons/collective_redress_en.htm#Studies. 
COM(2005)672, 19.12.2005. 
COM(2008)165, 2.4.2008. 
COM(2008)794, 27.11.2008. 
A form of representative collective redress has been proposed by the Commission in its proposal for a 
Regulation  on the  protection of  individuals  with  regard  to  the  processing  of personal  data  and  on  the 
free  movement  of such data  (General  Data Protection  Regulation). Here,  the  judicial  remedy  for  data 
protection violations could be exercised by any body, organisation or association which aims to protect 
data subjects’ rights and interests concerning the protection of their personal data, if they act on behalf 
of one or more data subjects (see COM(2012)11, 25.1.2012, Articles 73(2) and 76). In these cases, the 
action is thus brought on behalf of the represented data subject and only goes as far as the data subject 
himself/herself would be entitled to bring an action. 
COM(2010)135, 31.3.2010. 

available 

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from citizens23. The quality of most responses demonstrates the substantial interest in and the 
importance of this issue. The contributions informed the Commission’s understanding of the 
varying  positions  taken  by  stakeholders,  and  highlighted  which  issues  are  controversial  and 
which are more consensual. 

The primary difference of opinion concerning the benefits  that could  flow from introducing 
new  mechanisms  of  collective  redress  for  the  enforcement  of  EU  law  is  between 
citizens/consumers  and  business:  consumers  are  generally  in  favour  of  introducing  new 
mechanisms,  while  businesses  are  generally  against.  Academics  are  generally  in  favour. 
Lawyers  are  divided  on  this  issue,  although  those  who  are  sceptical  or  opposed  outnumber 
those in favour.  
The  Member  States24  which  responded  to  the  consultation  also  expressed  diverging  views, 
ranging from support for binding EU rules on collective redress to strong scepticism.  

Some Member States would consider binding EU rules with regard to specific policy fields or 
issues only (Denmark – with regard to cross-border collective redress, the Netherlands– with 
regard to private international law aspects of collective redress, Sweden – in policy fields with 
harmonised substantive rules, such as competition, the UK - in the competition field; Latvia 
would  consider  a  set  of  binding  minimum  requirements  in  the  area  of  consumer  and 
competition law for cross-border cases).  

Several  contributors,  representing  various  categories  of  stakeholders,  took  the  view  that 
collective  redress  as  a  form  of  private  enforcement  should  normally  be  independent  of 
enforcement  by  public  bodies,  but  that  a  certain  level  of  coordination  is  required  between 
public  and  private  enforcement;  in  effect  they  should  complement  each  other.  Some 
contributors  argued  that  collective  redress  should  only  come  into  play  after  public 
enforcement, as "follow on" actions. 

Most  stakeholders  agree  that  establishing  common  principles  for  collective  redress  at  EU 
level is desirable. However, such principles should fit into the EU legal system and the legal 
orders of the 27 Member States, and take into account the practical experience of collective 
redress systems already operating in several Member States. According to many stakeholders, 
the  principles  should  ensure  effective  proceedings,  prevent  threats  of  abusive  litigation, 
encourage  collective  consensual  resolution  of  disputes,  and  provide  a  mechanism  for  the 
cross-border enforcement of judgments. 

More  specifically,  many  stakeholders  agree  with  the  following  basic  parameters  of  a 
collective  redress  system  in  terms  of  effectiveness  and  safeguards:  any  collective  redress 
mechanism  should  first  and  foremost  be  capable  of  effectively  resolving  a  large  number  of 
individual  claims  that  raise  the  same  or  common  issues  and  relate  to  a  single  alleged 
infringement of rights granted under EU law. It should be capable of delivering legally certain 
and  fair  outcomes  within  a  reasonable  timeframe,  while  respecting  the  rights  of  all  parties 
involved.  At  the  same  time,  it  should  incorporate  safeguards  against  abusive  litigation  and 
avoid  any  economic  incentives  to  bring  speculative  claims.  In  examining  the  concrete 
building  blocks  needed  to  ensure  effectiveness  and  safeguards,  the  public  consultation  has 
confirmed  that  collective  redress  mechanisms  vary  significantly  amongst  Member  States. 
These  mechanisms  differ  from  each  other  as  regards  the  type  of  available  collective  action 
and its main features, such as admissibility, legal standing, the use of an opt-in or an opt-out 
system,  the  role  of  the  judge  in  collective  proceedings  and  requirements  on  informing 

23 
24 

Almost all were uniform responses from French and German citizens. 
15 Member States responded to the public consultation (AT, BG, CZ, DE, DK, EL, FR, HU, IT, LV, 
NL, PL, PT, SE, UK). 

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potential claimants about a collective action. Furthermore, each collective redress mechanism 
operates in the broader context of general civil and procedural rules, rules regulating the legal 
profession  and  other  relevant  rules,  which  also  differ  amongst  Member  States.  Given  this 
diversity, stakeholders naturally have very different views as to whether any specific national 
system  of  collective  redress  —  or  its  features  —  may  be  particularly  instructive  when 
formulating EU-wide standards on effectiveness and safeguards. 

2.2. 

Potential  advantages  and  disadvantages  of  collective  redress  according  to  the 
public consultation 

In  numerous  responses,  various  stakeholders  pointed  out  the  inherent  advantages  and 
disadvantages  of  collective 
redress  mechanisms.  These  potential  advantages  and 
disadvantages  are  to  be  viewed  in  the  context  of  the  values  and  policies  of  the  European 
Union, in particular as expressed in the Treaties and legislation. Advantages can be achieved 
and  the  disadvantages  can  be  mitigated  if  the  common  principles  to  be  followed  under  the 
Commission Recommendation are appropriately implemented. 

2.2.1.  Advantages: access to justice and stronger enforcement 

Under  Article  47(1)  of  the  Charter  of  Fundamental  Rights,  everyone  whose  rights  and 
freedoms guaranteed by the law of the Union are violated has the right to an effective remedy 
before a tribunal. Effectiveness of the remedy depends on various factors, including practical 
accessibility to the remedy offered by the legal system. 

The European Council emphasised in the Stockholm Programme that access to justice in the 
European judicial area should be made easier, particularly in cross-border proceedings. One 
obstacle to access to justice can be the cost of judicial proceedings. Where a large number of 
persons claim to be harmed by an alleged infringement of rights granted under EU law but the 
potential  loss  of  each  individual  is  small  in  comparison  to  the  potential  costs  for  each 
claimant, the pooling of similar claims in a collective redress scheme allows persons claiming 
damages to share the costs, thereby reducing the financial burden on individual claimants. The 
possibility  of  collectively  bringing  an  action  encourages  more  persons  who  have  been 
potentially  harmed  to  pursue  their  rights  for  compensation25.  The  availability  of  collective 
court action in national legal systems — together with the availability of collective consensual 
dispute resolution methods — may therefore contribute to improving access to justice. 

In addition, when potential  claimants can  enforce their rights granted under  EU law against 
possible violators more effectively, this contributes to the overall level of enforcement of EU 
law. In policy areas where the designated public authorities have powers to enforce the rules 
in the public interest, public and private enforcement are complementary: while the former is 
aimed  at  prevention,  detection  and  deterrence  of  infringements,  the  latter  aims  to  secure 
compensation for victims. In policy areas with weaker public enforcement, collective actions 
may, besides their compensatory or preventive function, also serve a deterrence function.  

2.2.2.  Disadvantage: risk of abusive litigation 

The main concerns voiced against the introduction of collective judicial redress mechanisms 
were  that  it  would  attract  abusive  litigation  or  otherwise  have  a  negative  impact  on  the 
economic  activities  of  EU  businesses26.  Litigation  can  be  considered  abusive  when  it  is 
intentionally targeted against law-abiding businesses in order to cause reputational damage or 
to inflict an undue financial burden on them.  

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26 

According to a 2011 Eurobarometer survey, 79 % of those polled in the 27 Member States stated that 
they would be more willing to defend their rights in court if they could join with other consumers. Flash 
Eurobarometer ‘Consumer attitudes towards cross-border trade and consumer protection’, March 2011. 
Opinion expressed by the majority of all stakeholders, in particular businesses. 

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There is the risk that the mere allegation of infringements could have a negative influence on 
the  perception  of  the  defendant  by  its  existing  or  potential  clients.  Law-abiding  defendants 
may  be  prone  to  settle  the  case  only  in  order  to  prevent  or  minimise  possible  damage. 
Furthermore,  the  costs  of  legal  representation  in  a  complex  case  may  constitute  substantial 
expenditure, in particular for smaller economic operators. 

‘Class  actions’  in  the  US  legal  system  are  the  best  known  example  of  a  form  of  collective 
redress but also an illustration of the vulnerability of  a system to abusive litigation. Several 
features  of  the  US  legal  system  have  made  class  actions  a  particularly  powerful  instrument 
that is, however, feared by those on the defending side, namely trade and industry as it can be 
used  as  a  forceful  tool  to  compel  them  to  settle  a  case,  which  may  not  necessarily  be  well-
founded.  Such  features  are  for  instance  contingency  fees  of  attorneys  or  the  discovery  of 
documents procedure that allows ‘fishing expeditions’. A further important feature of the US 
legal  system  is  the  possibility  to  seek  punitive  damages,  which  increases  the  economic 
interests at stake in class actions. This is enhanced by the fact that US class actions are legally 
‘opt-out’  procedures  in  most  cases:  the  representative  of  the  class  can  sue  on  behalf  of  the 
whole class of claimants possibly affected without them specifically requesting to participate. 
In  recent  years,  U.S.  Supreme  Court  decisions  have  started  to  progressively  limit  the 
availability of class actions in view of the detrimental economic and legal effects of a system 
that is open to abuse by frivolous litigation.  

2.3. 

The 2012 Resolution of the European Parliament 

The European Parliament's resolution ‘Towards a Coherent European Approach to Collective 
Redress’  of  2  February  201227  takes  well  note  of  the  widely  divergent  opinions  of 
stakeholders expressed on the issue of collective redress. 

The  European  Parliament  welcomes  the  Commission's  work  towards  a  coherent  European 
approach  to  collective  request  stressing  that  "victims  of  unlawful  practices  –  citizens  and 
companies  alike  –  must  be  able  to  claim  compensation  for  their  individual  loss  or  damage 
suffered,  in  particular  in  the  case  of  scattered  and  dispersed  damages,  where  the  cost  risk 
might not be proportionate to the damages suffered".28 Moreover, it underlines "the possible 
benefits  of  collective  judicial  actions  in  terms  of  lower  costs  and  greater  legal  certainty  for 
claimants,  defendants  and  the  judicial  system  alike  by  avoiding  parallel  litigation  of  similar 
claims"29.  

However,  the  Parliament  also  calls  on  the  Commission  to  first  of  all  carry  out  a  thorough 
impact  assessment  before  any  further  regulatory  action  is  undertaken.30  According  to  the 
European  Parliament,  the  Commission  should  demonstrate  in  this  impact  assessment  "that, 
pursuant to the principle of subsidiarity, action is needed at EU level in order to improve the 
current  EU  regulatory  framework  so  as  to  allow  victims  of  infringements  of  EU  law  to  be 
compensated for the damage they sustain and thus to contribute to consumer confidence and 
smoother  functioning  of  the  internal  market."  The  European  Parliament  also  recalls  "that, 
currently,  only  Member  States  legislate  on  national  rules  quantifying  the  amount  of 
compensation  that  can  be  awarded".31  The  European  Parliament  furthermore  calls  on  the 

27 

28 
29 
30 
31 

European  Parliament  Resolution  of  2  February  2012  on  ‘Towards  a  Coherent  European  Approach  to 
Collective Redress’ (2011/2089(INI)). 
Point 1 of the Resolution. 
Point 5 of the Resolution. 
Point 4 of the Resolution. 
Point 7 of the Resolution. 

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Commission "to examine thoroughly the appropriate legal basis for any measure in the field 
of collective redress"32.  

The  European  Parliament  concludes  by  calling  "in  the  event  that  is  decided  after  detailed 
consideration  that  a  Union  scheme  of  collective  redress  is  needed  and  desirable",  for  any 
proposal  in  the  field  of  collective  redress  to  take  the  form  of  a  horizontal  framework 
including  a  common  set  of  principles  providing  uniform  access  to  justice  via  collective 
redress  within  the  EU  and  specifically  but  not  exclusively  dealing  with  the  infringement  of 
consumer  rights."33  The  Parliament  also  stresses  "the  need  to  take  due  account  of  the  legal 
traditions and legal orders of the individual Member States and enhance the coordination of 
good practices between Member States"34. 

As regards the scope of the possible horizontal framework on collective redress, the European 
Parliament finds that EU action would deliver most benefit in cross-border cases and in cases 
involving infringements of EU law.  

The Parliament also finds that the European rules of private international law should apply to 
collective actions in general; however, the horizontal framework itself should lay down rules 
to prevent forum shopping. It points to the need to examine conflict of law rules. 

Furthermore,  the  European  Parliament  raises  several  issues  concerning  specific  features  of 
collective redress. It supports the ‘opt-in’ principle as the only appropriate European approach 
to  collective  redress.  Legal  standing  should  be  given  to  representative  organisations  that 
should  be  qualified  in  advance.  Punitive  damages  should  be  clearly  prohibited  and  full 
compensation  should  reach  individuals  once  the  court  confirms  that  they  are  right  in  their 
claims. 

It stresses that one  way of fighting abusive litigation is to exclude certain  features from the 
scope  of  the  horizontal  framework,  in  particular  punitive  damages,  third-party  financing  of 
collective redress and contingency fees for lawyers. As one of the central safeguards against 
abusive litigation, the European Parliament points  out that the ‘loser pays’ principle usually 
prevailing in civil disputes should apply also in collective cases. The European Parliament is 
not in favour of setting out conditions or guidelines for the private funding of damages claims 
at EU level.  

3. 

ASPECTS OF A EUROPEAN HORIZONTAL FRAMEWORK ON COLLECTIVE REDRESS 

Careful analysis of the views and arguments put forward during the public consultation, and 
notably of the position of the European Parliament, together with the expertise gathered by the 
Commission  in  the  course  of  previous  activities  in  the  area  of  consumer  protection  and 
competition, makes it possible to identify the main issues that must be addressed in a coherent 
manner in a European horizontal framework on collective redress. 

In particular, it is common ground that any European approach should: 

– 

– 

– 

32 
33 
34 

be  capable  of  effectively  resolving  a  large  number  of  individual  claims  for 
compensation of damage, thereby promoting procedural economy; 

be  capable  of  delivering  legally  certain  and  fair  outcomes  within  a  reasonable 
timeframe, while respecting the rights of all parties involved; 

provide for robust safeguards against abusive litigation; and 

Point 8 of the Resolution. 
Point 15 of the Resolution. 
Point 16 of the Resolution. 

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– 

3.1. 

avoid any economic incentives to bring speculative claims. 

The  relationship  between  public  enforcement  and  private  collective  redress  — 
compensation as an object of collective action 

There  is  a  consensus  among  stakeholders  that  private  and  public  enforcement  are  two 
different means that should normally pursue different objectives. Whereas it is the core task of 
public enforcement to apply EU law in the public interest and impose sanctions on infringers 
to  punish  them  and  to  deter  them  from  committing  future  infringements,  private  collective 
redress  is  seen  primarily  as  an  instrument  to  provide  those  affected  by  infringements  with 
access to justice and — as far as compensatory collective redress is concerned — possibility 
to  claim  compensation  for  harm  suffered.  In  this  sense,  public  enforcement  and  private 
collective redress are seen as complementing each other. 

Collective damages actions should aim to secure compensation of damage that is found to be 
caused by an infringement. The punishment and deterrence functions should be exercised by 
public enforcement. There is no need for EU initiatives on collective redress to go beyond the 
goal of compensation: Punitive damages should not be part of a European collective redress 
system. 

3.2. 

Admissibility of collective redress 

Conditions for the admissibility of collective actions vary in Member States depending on the 
concrete type of collective redress mechanism. Typically, the basic conditions are set by the 
law regulating a given type of collective action. There are also systems leaving the assessment 
of admissibility to the discretion of the courts. The extent of discretion given to the court to 
decide  on  admissibility  conditions  varies  between  Member  States,  also  when  the  legal 
conditions are codified in a law. 

Some  collective  actions  are  available  for  all  types  of  civil  damages  claims;  others  are  only 
available  for  claims  concerning  damages  for  alleged  breaches  of  specific  legal  rules: 
consumer  protection  rules,  environmental  protection,  investor  protection,  competition  law, 
etc. There are also systems in which particular types of collective action are only admissible 
once  a  public  authority  has  established  an  infringement  of  the  relevant  rules:  i.e.  follow-on 
actions35. 

It  should  be  ensured  that  collective  actions  for  damages  (compensatory  relief)  can  only  be 
brought  when  certain  admissibility  conditions  are  fulfilled.  In  any  event,  the  court  should 
decide  on  the  admissibility  of  a  concrete  collective  action  at  a  very  early  stage  of  the 
proceedings. 

3.3. 

Legal standing 

Legal standing to bring a collective action in the Member States depends on the concrete type 
of collective redress mechanism. In certain types of collective actions, such as group actions 
where the action can be brought jointly by those who claim to have suffered harm, the issue of 
standing  is  fairly  straightforward.  In  the  context  of  representative  actions,  the  issue  of  legal 
standing needs to be defined. A representative damages action is an action which is brought 
by a representative entity (which in some systems can also be a public authority) on behalf of 
a defined group of individuals or legal persons who claim to have been harmed by the same 
alleged infringement. The individuals are not parties to the proceeding; only the representative 
entity acts on the claimant side. It should therefore be ensured that the representative entity 
acts  genuinely  in  the  best  interest  of  the  group  represented,  and  not  for  own  profit.  The 

35 

E.g. the UK follow-on representative action for damages arising from breaches of competition law that 
have been determined by competent authorities. 

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Commission believes that under a European horizontal framework on collective redress it is 
desirable that collective actions are available in all Member States to natural or legal persons 
as a means of collectively asking for injunctions or claiming compensation for harm caused to 
them by infringements of rights granted under EU law. 

There are different systems as regards qualifying criteria for representative entities which are 
not  public  authorities.  One  possible  approach  is  to  let  the  court  check  whether  the 
representative entity is fit for purpose on a case-by-case basis (ad hoc certification). Another 
approach is to set certain qualification criteria by law and, thus, define the standing upfront. It 
can be left to the court to check whether such qualification criteria are met, or an authorisation 
system can be introduced where a public authority is in charge of checking the fulfilment of 
qualification  criteria.  Mass  harm  situations  could  span  across  the  border,  especially  in  the 
context  of  a  further  developed  digital  single  market,  therefore  representative  entities 
originating from other Member States than the one where a collective action is brought before 
the court should have the possibility to continue performing their role.  

Whereas  some  stakeholders,  in  particular  businesses,  are  strongly  in  favour  of  granting  the 
standing  to  bring  representative  actions  only  to  qualified  entities  that  fulfil  express  criteria, 
other  stakeholders  are  opposed  to  determining  standing  by  law,  arguing  that  this  might 
unnecessarily  restrict  access  to  litigation  seeking  compensation  for  all  those  who  have 
potentially suffered harm. The Commission considers it desirable to define the conditions for 
legal standing in representative actions in the Commission Recommendation.36  

3.4. 

‘Opt-in’ vs. ‘opt-out’ 

There are two basic approaches to the way in which the represented group is composed: ‘opt-
in’, where the group includes only those individuals or legal persons who actively opt in to 
become  part  of  the  represented  group,  and  opt-out’,  where  the  group  is  composed  of  all 
individuals who belong to the defined group and claim to have been harmed by the same or 
similar  infringement  unless  they  actively  opt  out  of  the  group.  In  the  ‘opt-in’  model,  the 
judgment is binding on those who opted in, while all other individuals potentially harmed by 
the  same  or  similar  infringement  remain  free  to  pursue  their  damages  claims  individually. 
Conversely, in the ‘opt-out’ model, the judgment is binding on all individuals that belong to 
the  defined  group  except  for  those  who  explicitly  opted  out.  The  ‘opt-in’  model  is  used  by 
most  Member  States  that  provide  for  collective  redress.  The  ‘opt-out’  model  is  used  in 
Portugal,  Bulgaria  and  the  Netherlands  (in  collective  settlements)  as  well  as  in  Denmark  in 
clearly defined consumer cases brought as representative actions37. 

A significant number of stakeholders, in particular businesses, strongly oppose the ‘opt-out’ 
model,  arguing  that  it  is  more  prone  to  abuse  and  that  it  may  be  unconstitutional  in  some 
Member States, or at least incompatible with their legal traditions. On the other hand, some 
consumer  organisations  argue  that  ‘opt-in’  systems  may  fail  to  deliver  effective  access  to 
justice for all consumers who have been harmed38. In their view, the availability of ‘opt-out’ 
is therefore desirable, at least as an option in appropriate cases and subject to approval by the 
court. 

36 
37 

38 

See points 6-9 of the Commission Recommendation. 
The  ‘opt-out’  system  has  two  advantages  that  explain  why  some  Member  States  have  introduced  it: 
first,  it  facilitates  access  to  justice  in  cases  where  individual  damage  is  so  small  that  some  of  the 
potential claimants would not opt in to the proceedings. The second is that ‘opt-out’ proceedings give 
more certainty to the defendant, since the judgment would not bind only those who opted out. 
The  UK  consumer  organisation  Which?  refers  to  its  experience  in  the  Replica  Football  Shirts  case, 
where  an  ‘opt-in’  collective  action  (follow-on  damages  action  in  the  competition  field)  ultimately 
secured  compensation  for  only  a  tiny  percentage  of  those  harmed  in  the  terms  of  the  decision  of  the 
competent authority. 

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In the Commission's view, it should be ensured that the represented group is clearly defined 
so as to allow the court to conduct the proceedings in a manner consistent with the rights of 
all parties, and in particular with the rights of the defence. 

The ‘opt-in’  system respects the right of a person to  decide whether to participate or  not. It 
therefore  better  preserves  the  autonomy  of  parties  to  choose  whether  to  take  part  in  the 
litigation or not. In this system the value of the collective dispute is more easily determined, 
since it would consist of the sum of all individual claims. The court is in a better position to 
assess both the merits of the case and the admissibility of the collective action. The ‘opt-in’ 
system  also  guarantees  that  the  judgment  will  not  bind  other  potentially  qualified  claimants 
who did not join. 

The ‘opt-out’ system gives rise to more fundamental questions as to the freedom of potential 
claimants to decide whether they want to litigate. The right to an effective remedy cannot be 
interpreted in a way that prevents people from making (informed) decisions on whether they 
wish to claim damages or not. In addition, an ‘opt-out’ system may not be consistent with the 
central  aim  of  collective  redress,  which  is  to  obtain  compensation  for  harm  suffered,  since 
such persons are not identified, and so the award will not be distributed to them. 

The Commission therefore takes the view in the Commission Recommendation that under the 
European horizontal framework on collective redress the claimant party should be formed on 
the basis of the ‘opt-in’ method and that any exception to this principle, by law or by court 
order, should be duly justified by reasons of sound administration of justice.  

3.5. 

Effective provision of information to potential claimants 

Effective  information  on  collective  action  is  a  vital  condition  for  ensuring  that  those  who 
could  claim  to  have  been  harmed  by  the  same  or  similar  alleged  infringement  learn  of  the 
possibility  to  join  a  representative  action  or  a  group  action  and,  thus,  can  make  use  of  this 
means of accessing justice. On the other hand, it cannot be overlooked that advertising (e.g. 
on TV or via flyers) of the intention to bring collective action may have a negative impact on 
the reputation of the defendant, which could have adverse effects on its economic standing. 

There  is  a  consensus  among  stakeholders  on  the  importance  of  rules  stipulating  that  a 
representative  entity  has  an  obligation  to  effectively  inform  potential  members  of  the 
represented  group.  Many  stakeholders  suggest  that  the  court  should  play  an  active  role  in 
checking that this obligation is fulfilled. 

For any type of collective action, any rules regarding the provision of information to potential 
claimants  should  balance  concerns  regarding  freedom  of  expression  and  the  right  to  access 
information with the protection of the reputation of the defendant. The timing and conditions 
in which the information is provided will play an important role in ensuring that this balance 
is kept. 

3.6. 

Interplay of collective redress and public enforcement in specific policy areas 

With  regard  to  EU  policy  fields  where  public  enforcement  plays  a  major  role  —  such  as 
competition, environment, data protection or financial services — most stakeholders see the 
need for specific rules to regulate the interplay between private and public enforcement, and 
protect the effectiveness of the latter39. 

39 

In the competition field, many stakeholders emphasise the need to protect the effectiveness of leniency 
programmes applied by the Commission and national competition authorities when enforcing EU rules 
against  cartels.  Other  issues  frequently  mentioned  in  this  context  include  the  binding  effect  of 
infringement decisions by national competition authorities with regard to follow-on collective damages 
actions and setting specific limitation periods for bringing such follow-on actions. 

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Collective  damages  actions  in  regulated  policy  areas  typically  follow  on  from  infringement 
decisions adopted by public authorities and rely on the finding of an infringement, which is 
often  binding  on  the  civil  court  before  which  a  collective  damages  action  is  brought.  For 
example,  in  the  competition  field,  Regulation  (EC)  No  1/2003  provides  that  when  national 
courts  rule  on  issues  concerning  EU  antitrust  rules  which  are  already  the  subject  of  a 
Commission decision, they cannot take decisions running counter to the decision adopted by 
the Commission.  

In  such  cases,  follow-on  actions  essentially  concern  the  questions  of  whether  damage  has 
been caused by the infringement and, if so, to whom and in what amount. 

It is necessary to ensure that the effectiveness of public enforcement is not put into jeopardy 
as  a  result  of  collective  damages  actions  or  actions  that  are  brought  before  courts  while  an 
investigation  by  a  public  authority  is  still  on-going.  This  may  typically  require  rules 
regulating access by claimants to documents obtained or produced by the public authority in 
the  course  of  the  investigation,  or  specific  rules  on  limitation  periods  allowing  potential 
claimants  to  wait  with  a  collective  action  until  the  public  authority  takes  its  decision  as 
regards infringement. Beyond the purpose of protecting public enforcement, rules of this kind 
also facilitate effective and efficient redress through collective damages actions. Namely, the 
claimants  in  a  follow-on  action  can  to  a  significant  extent  rely  on  the  results  of  public 
enforcement and, thus, avoid the (re-)litigation of certain issues. Due account should be taken 
of  the  specificities  of  collective  damages  actions  in  policy  areas  where  public  enforcement 
plays  a  major  role,  to  achieve  the  twofold  goal  of  protecting  the  effectiveness  of  public 
enforcement  and  facilitating  effective  private  collective  redress,  particularly  in  the  form  of 
follow-on collective actions. 

3.7. 

Effective  enforcement  in  cross-border  collective  actions  through  private 
international law rules 

The general principles of European international private law require that a collective dispute 
with cross-border implications should be heard by a competent court on the basis of European 
rules on jurisdiction, including those providing for a choice of court, in order to avoid forum 
shopping.  The  rules  on  European  civil  procedural  law  and  applicable  law  should  work 
efficiently in practice to ensure proper coordination of national collective redress procedures 
in cross-border cases. 

With regard to jurisdictional rules, many stakeholders asked for collective proceedings to be 
specifically  addressed  at  European  level.  Views  differ,  however,  as  to  the  desirable 
connecting  factor  between  the  court  and  the  case.  A  first  group  of  stakeholders  advocate  a 
new rule giving jurisdiction in mass claim situations to the court where the majority of parties 
who  claim  to  have  been  injured  are  domiciled  and/or  an  extension  of  the  jurisdiction  for 
consumer  contracts  to  representative  entities  bringing  a  collective  claim.  A  second  category 
argues that jurisdiction at the place of the defendant’s domicile is best suited since it is easily 
identifiable  and  ensures  legal  certainty.  A  third  category  suggests  creating  a  special  judicial 
panel for cross-border collective actions with the Court of Justice of the European Union. 

In  this  respect,  the  Commission  considers  that  the  existing  rules  of  Regulation  (EC)  No 
44/2001  on  jurisdiction,  recognition  and  enforcement  of  judgments  in  civil  and  commercial 
matters  (‘the  Brussels  I  Regulation’)40,  should  be  fully  exploited.  In  the  light  of  further 
experience involving cross-border cases, the report foreseen on the application of the Brussels 

40 

As amended by Regulation (EC) no 1215/2012 that will enter into application 10 January 2015. OJ L 
351, 20.12.2012. 

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I  Regulation  should  include  the  subject  of  effective  enforcement  in  cross-border  collective 
actions. 

Finally,  some  stakeholders  raised  the  problem  that,  under  the  EU’s  current  conflict  of  law 
rules41, a court to which a collective dispute is submitted in a case involving claimants from 
several Member States would sometimes have to apply several different laws to the substance 
of  the  claim.  The  general  rule  for  tort  cases  is  that  the  law  applicable  for  the  obligations 
arising  out  of  tort  is  the  law  of  the  country  in  which  the  event  giving  rise  to  the  damage 
occurred.  In  tort  cases  concerning  product  liability,  the  law  is  determined  by  the  habitual 
residence of the person sustaining the damage. Furthermore, for cases on unfair competition, 
the  law  applicable  is  the  law  of  the  country  where  competitive  relations  or  the  collective 
interests  of  consumers  are  or  are  likely  to  be  affected.  Admittedly,  there  can  be  situations 
where the conflict of law rules can render cross-border litigation complex, in particular if the 
court has to apply several compensation laws to each group of persons sustaining the damage. 
However, the Commission is not so far persuaded that it would be appropriate to introduce a 
specific  rule  for  collective  claims  which  would  require  the  court  to  apply  a  single  law  to  a 
case.  This  could  lead  to  uncertainty  when  this  is  not  the  law  of  the  country  of  the  person 
claiming damages.  

3.8. 

Availability of collective consensual dispute resolution 

Stakeholders agree that consensual dispute resolution can provide parties with a fast, low-cost 
and simple means of resolving their disputes. Consensual dispute resolution can also reduce 
the need to seek judicial redress. Parties to collective proceedings should therefore have the 
possibility to resolve their disputes collectively out of court, either with the intervention of a 
third  party  (e.g.  using  a  mechanism  such  as  arbitration  or  mediation)  or  without  such 
intervention (e.g. settlement among the parties concerned). 

The large majority of stakeholders including small and medium enterprises (SMEs) are of the 
opinion that the consensual collective resolution of disputes should not be a mandatory first 
step before going to court. Indeed, this approach could trigger unnecessary costs and delays 
and  may  in  certain  situations  even  undermine  the  fundamental  right  of  access  to  justice42. 
Resorting  to  the  consensual  collective  resolution  of  disputes  should  therefore  remain 
voluntary , with due regard to existing EU law in the ADR area. However, judges in collective 
redress  proceedings  should  not  be  prevented  from  inviting  the  parties  to  seek  a  consensual 
collective resolution of their dispute43. 

Verification of the legality of the outcome of consensual collective resolution of the dispute 
and its enforceability is of particular importance in collective cases, as not all members of the 
group claiming to be harmed by an alleged illegal practice are always able to directly take part 
in the consensual collective resolution of the dispute. The court should therefore confirm the 
outcome. The Commission recommends this to the Member States.44 

41 

42 
43 

44 

Regulations  (EC)  No  593/2008  on  the  law  applicable  to  contractual  obligations  (Rome  I),  OJ  L  177, 
4.7.2008, and (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II), OJ L 
199, 31.7.2007. 
Article 47 of the Charter of Fundamental Rights of the European Union. 
This is already the case for mediation in cross-border disputes, where, in accordance with Article 5 of 
Directive  2008/52/EC  on  certain  aspects  of  mediation  in  civil  and  commercial  matters,  courts  before 
which an action is brought may invite the parties to use mediation in order to settle the dispute. 
See point 30 of the Commission Recommendation. In cross-border civil and commercial disputes, under 
Directive 2008/52/EC, the content of an agreement resulting from mediation is to be made enforceable 
by the court requested unless it is contrary to the law of the Member State where the request is made or 
the law of that Member State does not provide for its enforceability. 

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The Commission sees therefore that a useful complementary role can be played by consensual 
dispute resolution mechanisms. Building on the steps that have already taken in this direction, 
namely the Mediation Directive, Directives on consumer Alternative Dispute Resolution and 
Regulation  on  consumer  Online  Dispute  Resolution,  the  Commission  considers  that  it  is  a 
useful  further  step  to  recommend  to  the  Member  States  to  develop  collective  consensual 
dispute resolution mechanisms45.  

Funding of collective action 

3.9. 
In  the  case  of  collective  redress,  costs46  usually  borne  by  parties  engaged  in  civil  litigation 
could be relatively high, in particular where there are many claimants. While lack of funding 
should  not  limit  access  to  justice47,  funding  mechanisms  available  for  collective  actions 
should not create incentives for abusive litigation. 

3.9.1.  Third-party financing 

Financial  support  by  a  private  third  party  who  is  not  a  party  to  the  proceedings  could  take 
different forms. Direct third-party financing of collective actions is seen as a potential factor 
driving  abusive  litigation,  unless  it  is  properly  regulated.  Legal  expenses  insurance  is 
perceived by some as more neutral and ‘after-the-event’ insurance could have some relevance 
for collective actions. 

Contingency  or  success  fees  for  legal  services  that  cover  not  only  representation,  but  also 
preparatory action, gathering evidence and general case management constitute de facto third-
party  financing.  The  variety  of  the  solutions  adopted  in  this  sphere  by  the  Member  States 
ranges  from  prohibition  to  acceptance.  Some  stakeholders  consider  the  abolition  of 
contingency  fees  as  an  important  safeguard  against  abusive  litigation  while  others  see 
contingency fees as a useful method of financing collective actions.  

Third-party  financing  is  an  area  which  needs  to  be  designed  in  a  way  that  it  serves  in  a 
proportionate manner the objective of ensuring access to justice. The Commission therefore 
takes the view in the Commission Recommendation that it should be made subject to certain 
conditions. An inappropriate and non-transparent system of third party financing runs the risk 
of  stimulating  abusive  litigation  or  litigation  that  does  little  to  serve  the  best  interests  of 
litigants.  

3.9.2.  Public funding 

In  the  public  consultation  some  stakeholders,  namely  consumer  organisations  and  some 
lawyers,  favoured  the  creation  of  public  funds  that  would  provide  financial  support  for 
potential claimants in collective redress cases. 

However, given that collective redress would be a procedure arising in the context of a civil 
dispute between two parties, even if one of them is composed of a number of claimants, and 
deterrence will be a side-effect of the proceedings, the Commission does not find it necessary 
to recommend direct support from public funds, since if the court finds that damage has been 
sustained,  the  party  suffering  that  damage  will  obtain  compensation  from  the  losing  party, 
including their legal costs.  

45 

46 

47 

See points 27-30 of the Commission Recommendation. The Directive on consumer Alternative Dispute 
Resolution  does  not  prevent  Member  States  maintaining  or  introducing  alternative  dispute  resolution 
procedures that deal jointly with identical or similar disputes between a trader and several consumers, 
thus enabling collective alternative dispute resolution procedures to develop. 
Such  costs  include  court  fees,  remuneration  of  legal  representatives,  costs  of  participation  in  the 
hearing, costs of general case management, costs of expert’s analyses. 
The national legal aid systems should be appropriately used to prevent this. 

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3.9.3. 

‘Loser pays’ principle 

The  principle  that  the  losing  party  should  bear  the  costs  of  the  court  proceedings  is  well 
embedded in the European legal tradition, although it is not present in every jurisdiction of the 
European Union and the way in which it is applied differs between jurisdictions. 

In the public consultation all stakeholders agreed that the ‘loser pays’ principle should apply 
to  collective  redress  cases.  The  Commission  has  no  doubt  that  the  ‘loser  pays’  principle 
should form part of the European approach to collective redress, and thus it recommends to 
follow that principle in collective actions.48 

4. 

CONCLUSIONS 

The  Commission's  public  consultation  in  2011,  the  European  Parliament  Resolution  of  2 
February  2012  and  the  Commission’s  own  analyses  have  made  it  possible  to  identify 
particular  issues  to  be  addressed  in  developing  a  European  horizontal  framework  for 
collective redress. As a principal conclusion the Commission sees the advantage of following 
a horizontal approach in order to avoid the risk of uncoordinated sectorial EU initiatives and 
to  ensure  the  smoothest  interface  with  national  procedural  rules,  in  the  interest  of  the 
functioning of the internal market.  

Taking  into  account  the  complexity  on  the  one  hand  and  the  need  to  ensure  a  coherent 
approach to collective redress on the other hand, the Commission adopts, in parallel with this 
Communication,  a  Recommendation  on  the  basis  of  Article  292  TFEU  that  suggests 
horizontal  common  principles  of  collective  redress  in  the  European  Union  that  should  be 
complied  with  by  all  Member  States.  After  adoption  and  publication  of  the  Commission 
Recommendation, the Member States should be given two years to implement the principles 
recommended by the Recommendation in national collective redress systems. On the basis of 
practical experience to be made with the Recommendation, the Commission will, four years 
after  the  publication  of  the  Recommendation,  assess  whether  further  legislative  measures  to 
consolidate  and  strengthen  the  horizontal  approach  reflected  in  the  present  Communication 
and in the Recommendation should be proposed. The Commission will in particular assess the 
implementation  of  the  Recommendation  and  its  impact  on  access  to  justice,  on  the  right  to 
obtain  compensation,  on  the  need  prevent  abusive  litigation  and  on  the  functioning  of  the 
single market, the economy of the European Union and consumer trust.  

48 

See point 15 of the Commission Recommendation. 

EN 

16 

   EN