For the Defense: Twenty-Eight Shades of EU Class Actions, in Class Actions in Europe: Holy Grail or a Wrong Trail?, Public And Private Justice: Dispute Resolution in Modern Societies (Springer 2020)

Abstract

Throughout the twentieth century, virtually all European countries that had studied, evaluated, and considered the American class action procedural device for resolving aggregate claims had rejected implementation of the class action as a part of domestic law. In the early twentyfirst century, however, several European countries began to reconsider their longstanding antipathy to the American class action. After further study and deliberation, the EU Parliament in 2013 issued a Recommendation for Injunctive and Compensatory Collective Redress Mechanisms in Member States (concerning violations of rights granted under Union law). The Recommendation requested that all 28 EU countries – by 2017 – implement some form of collective redress mechanism. The Recommendation set forth a comprehensive list of principles to guide legislative initiatives in developing collective redress law. In May 2018, the Commission issued a Report to the European Parliament, the Council, and the European Economic and Social Committee assessing the practical implementation of the Recommendation four years after its publication. The Commission’s study reveals that the 28 EU countries have developed or enacted a patchwork quilt of differing approaches to class actions or collective redress. Although many EU countries have undertaken some legislative initiatives and implemented some of the Commission’s recommendations, in a number of countries, several of the Commission’s principles have had little or no impact on domestic laws. Perhaps most significantly, the 28 EU countries largely have eschewed implementing any procedural mechanisms that resemble the American class action rule, in efforts to preserve domestic cultural and legal norms, and to avoid Americanstyle class action abuses. Thus, these European initiatives towards implementing a class action device throughout Europe represent an American class action defense lawyer’s dream. The Commission, based on its assessment of the current state of collective redress in the EU has concluded that “the potential of the principles of the Recommendation in facilitating access to justice for the benefit if the functioning of the single market is still far from being fully exploited.”