The EU Directive on Representative Actions for Consumers: A Milestone or Another Missed Opportunity?

Abstract

Collective redress has been on the EU civil justice agenda for a long time, and has triggered considerable debate as a result of the complexity of the matter and the hugely diverging approaches in the Member States. The 2013 Recommendation on collective redress was the result of compromises, and up until now it has had little practical impact. On 11 April 2018, the Commission published its proposal for a directive on representative actions for the protection of the collective interests of consumers, replacing Directive 2009/22/EC (the ‘Injunctions Directive’). This proposal is a follow-up to the 2016-2017 Fitness Check of EU consumer and marketing law, and to the 2018 evaluation report of the Commission on the implementation of the 2013 Recommendation on collective redress. While this is a big step in the right direction, the proposal has a number of shortcomings. It is submitted that, first, in view of the ever-increasing globalization of goods and services, a revision of European private international law rules is urgently needed for resolving cross-border mass claims. Second, the proposal fails to fully consider new actors and new forms of mass litigation that are now emerging, in particular the rise of mass dispute entrepreneurs who are using online platforms and digital tools to structure and to create mass claims. Third, it leaves several questions relating to the financing of mass litigation still unanswered.