Collective legal protection: The European approach

Abstract

One of the basic goals of the EU justice policy is to ensure an efficient and effective legal protection, particularly in cross-border disputes and cases concerning the violation of rights guaranteed under the EU legislation. In order to accomplish this goal, the EU embarked on a horizontal harmonization of civil procedure in some sectors and reinforced the institutional cooperation of Member States in the field of civil justice. Concurrently, there were some legal interventions in the field of civil procedure, which contributed to establishing a number of European procedural mechanisms, such as: the European Small Claims Procedure (2007), the European Payment Order Procedure (2006), etc. Many studies and analyses show that procedural mechanisms of collective legal protection are essential for ensuring an efficient and effective legal protection of rights guaranteed by the EU law. The idea of introducing the collective legal protection instruments into the EU law has been present for more than two decades. It has been endorsed by the European Economic and Social Committee, which has played the key role in its promotion. In June 2013, after extensive consultations, the European Commission adopted the Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Members States concerning violations of rights guaranteed under the EU law. This document has provided a coherent horizontal framework for the collective legal protection at the EU level by establishing the common European principles for collective redress mechanisms which the Member States should incorporate into their national systems. Analysis of the common principles governing the collective legal protection shows that the European approach to shaping the collective redress claims is significantly different from the American class action model, which is considered to be incompatible with the European legal tradition and deemed to provide a wide margin for abuse. The common European principles are universal because they refer to the collective protection of all rights guaranteed under the EU law, including the rights in the area of consumer protection, unfair competition, environment protection, etc. On the other hand, these principles are significant not only for the collective judicial protection but also for the collective protection which is exercised by using out-of-court (alternative) dispute resolution methods. Within the framework of collective judicial protection, the Recommendation includes two basic procedural mechanisms: the injunctive collective action and the compensatory collective action. The former is aimed at prohibiting the harmful or unlawful conduct; the latter enables a number of persons affected by the commission of an unlawful act to seek redress (damages) in a judicial proceeding, which is particularly important in cases where the damage is disproportional to the costs of the proceedings. The Member States are expected to incorporate the common European principles into their national systems within a period of two years. After four years, in order to ensure a uniform implementation of the Recommendation, the European Commission will assess the need for introducing additional legislative measures.

Keywords

• collective legal protection
• injunctive collective action
• compensatory collective action