List of Authors... xiii. List of Abbreviations... xv. Acknowledgements...xvii

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1 CONTENTS List of Authors... xiii List of Abbreviations... xv Acknowledgements...xvii V. Harsági and C.H. van Rhee COLLECTIVE REDRESS IN THE EUROPE UNION COMPARATIVE PERSPECTIVES... xix PART I: EU & USA B. Hess EUROPEAN PERSPECTIVES ON COLLECTIVE LITIGATION Introduction: Regulating Collective Redress in the European Union The EU Commission s Package of 11 June The New Legislative Approach Public v Private Enforcement Horizontal and Sectorial Approaches Non-binding and Binding Instruments Left-overs of the EU Commission s Recommendation Cross-border Collective Redress An Area Uncovered: Collective Redress and ADR Bibliography Gy. Bándi ACCESS TO JUSTICE IN ENVIRONMENTAL PROTECTION CASES Class Actions and Environmental Group Actions Similarities and Specialities Modelling Class Actions within the EU v

2 3. Right to Environment and Access to Justice The Aarhus Convention and its Article Access to Justice in Environmental Protection Cases within the EU Facts and Proposals The Role of CJEU Case Law in Opening up Access to Justice Possibilities Summary Bibliography R.L. Marcus THE BIG BAD WOLF: AMERICAN CLASS ACTIONS US Litigation and Private Enforcement The Background of the Modern American Class Action The Emergence and Evolution of the Modern American Class Action Recent Revisions by Rule, Statute and Supreme Court Decision Rule Revisions Statutory Changes Supreme Court Class-Action Decisions Further Reform Initiatives? Settlement Class Certification Class Certification and Scrutiny of the Merits 'Issue' Classes Criteria for Settlement Review Use of Cy Pres' Remedies Other Issues Taming the Wolf? Bibliography A. Uzelac WHY NO CLASS ACTIONS IN EUROPE? A VIEW FROM THE SIDE OF DYSFUNCTIONAL JUSTICE SYSTEMS Introduction Alice Meets the White Rabbit: Discovery of Collective Litigation by a (Southern) European Judiciary Collective Litigation in Croatia or How Croatia Completed the EU Accession Homework and Devised the Most Modern Legislation for Group Litigation In the Quest for Gay Rights: First Anti-Discrimination Verbandsklagen and Their Meagre Success Interim Victory of Bank Loans Consumers in Swiss Franc Appreciation Case Why Not? Inferences from Particular Southern European Examples Slow Individual, even Slower Collective Justice Lack of Finality and Effective Enforcement: Toothless Collective Justice No Appropriate Personal and Organizational Design for Mass Claim Processing vi

3 4. Why Yes? A General Test for the Desirability of Public Interest Litigation in Europe Will It Make the Handling of Major Disasters and Burning Social Issues any Better? Will It Help to Improve the Functioning of the Judiciary? Will It be More Attractive for the End Users of the Justice System? Bibliography A. Szalai BEYOND OPT-IN AND OPT-OUT: THE LAW AND ECONOMICS OF GROUP LITIGATION Economic Theory of Group Litigation The Collective Action Problem: Key Question The Free-rider Problem The Types of Collective Actions Different Collective Action Problems The Case for Injunctions Compensatory Actions The Res Iudicata Problem Remedying Collective Action Problems Low-value Group: The Prisoner s Dilemma High-value Groups: Chicken Game Necessary Incentives: Personal Benefits for Participants The Role of Settlement: The Problem of the Enrichment of the Victim Law and Economics of some Regulatory Problems Opt-in or Automatic Membership Opt-Out The Role of Non-profit Organizations as Representatives Summary Bibliography PART II: NATIONAL PERSPECTIVES S. Voet BELGIUM S NEW CONSUMER CLASS ACTION Introduction Consumer Law Only Standing to Sue Superiority Brussels Courts Opt-in or Opt-out Procedure: Settlement Phase and Merits Phase Settlement before the Proceedings No Settlement before the Proceedings Collective Redress in Kind or by Monetary Payment Collective Claims Settler vii

4 10. Evaluation Holistic Approach Bottlenecks Bibliography N. Andrews MULTI-PARTY LITIGATION IN ENGLAND Test Cases Consolidation and Joinder Representative Proceedings ( Opt Out ) Group Litigation Orders ( Opt In ) Rejection (2009) of Generic Opt Out Class Action Concluding Remarks Bibliography F. Ferrand COLLECTIVE LITIGATION IN FRANCE: FROM DISTRUST TO CAUTIOUS ADMISSION Introduction Several Previous Attempts to Introduce Group Litigation in France Where Are We? The Current State of Affairs in France before the Coming into Force of the New Statute The Existing Procedural Devices An Action for the Financial Compensation of the Consumers Collective Interest (Article L Consumer Code) A Joint Representative Action for Consumers (Article L Consumer Code) Brought by Approved Consumer Associations (action en représentation conjointe d une association agréée de consommateurs) A Joint Representative Action for Investors (Article L , para 1 Monetary and Financial Code) The Insufficiencies of the Existing Mechanisms Where Do We Go? The New French Act (Loi No of 17 March 2014 relative à la consommation) The Recent Introduction of an Action de Groupe Much Criticism with Regard to the Cautious Regulation of Group Litigation Comparison with the Content of European Recommendation Conclusion Bibliography M. Bakowitz The German Experience with Group Actions The Verbandsklage and the Capital Markets Model Case Act (KaPMuG) The Verbandsklage Prohibitory Injunctions Act (UKlaG) viii

5 1.2. Act Against Unfair Competition (UWG) and Act Against Restraints on Competition (GWB) Practical Application The Capital Markets Model Case Act Emergence of a Group Action The Starting Point: The Telekom Case Legislative Procedure Limited Scope Mechanics of the Act Constitution of the Civil Courts in Germany Three Phases Registration of a Claim Costs Nature of the Model Proceeding Practical Application Geltl v Daimler Chrysler The Telekom Case A Never-Ending Story First Conclusions Summary Bibliography V. Harsági THE NEED FOR FURTHER DEVELOPMENT OF COLLECTIVE REDRESS IN HUNGARY Introduction Present Areas of Collective Rights Protection (actio popularis) Public Interest Litigation on Unfair Standard Contract Terms Further Means of Consumer Protection Actions against Financial Service Providers Other Areas of Collective Redress under the Hungarian Regulations in Force On the Lack of Group Litigation Outlook for the Future Bibliography T. Tóth and P. Szilágyi PRIVATE ENFORCEMENT IN HUNGARY WITH A VIEW ON CLASS ACTIONS Introduction The Proposed Directive on Actions for Damages The European Way: Collective Redress instead of Class Actions Experience in Hungary Regarding Private Enforcement Stand-alone Actions Experience in Hungary Regarding Private Enforcement Follow-on Actions Practical Difficulties with Antitrust Claims Rules Supporting Private Enforcement ix

6 8. Conclusions Bibliography E. Silvestri CLASS ACTIONS IN ITALY: GREAT EXPECTATIONS, BIG DISAPPOINTMENT Introduction Collective Actions for Injunctive Relief Class Actions Italian-Style Public Class Actions Conclusions Bibliography C.H. van Rhee and I.N. Tzankova COLLECTIVE REDRESS IN THE NETHERLANDS Introduction Collective Litigation Sources of Law and Scope Content of the Rules Collective Settlement Procedures (Wet Collectieve Afwikkeling Massaschade or WCAM) Sources of Law and Scope Content of the Rules Final Remarks Bibliography R. Kulski POLISH PERSPECTIVES AND PROVISIONS ON GROUP PROCEEDINGS Introductory Notes Key (Basic) Issues Related to the Act on Enforcing Claims in Group Proceedings The Scope of Matters that can be dealt with in Group Proceedings (Article 1, Sec. 2 of the Act) Admissibility of Group Proceedings The Model of Group Membership The Possibility of Introducing the Opt-out Model into the Polish System of Court Proceedings Parties to Group Proceedings Competence and Composition of the Court in Group Proceedings Plaintiff Defendant Stages in the Course of Group Proceedings Introductory Remarks Proceedings on Admissibility of Group Proceedings x

7 Instituting an Action Delivering a Copy of the Group s Statement of Claim to the Defendant and Submitting a Reply to a Statement of Claim Court s Decision on Admissibility of Group Proceedings The Actual Group Proceedings Announcement of Initiation of Group Proceedings Submitting Declarations on Joining the Group to the Group Representative by Parties whose Claims might be included in Group Proceedings Delivering the List of Persons who have joined the Group to the Defendant and Defining the Time Limits for the Defendant to Submit Objections as to Group Membership Decision on the Composition of the Group Judgment in Group Proceedings Enforcement proceedings Appeal Costs of Group Proceedings Bibliography L.Ervo GROUP ACTIONS IN SWEDEN A MODERATE START The Scope of Group Actions The Nature of Group Actions Opt-in The Role of Group Members Evidence The Role of the Court Funding and Costs Enforcement Case Law and Evaluation Conclusion Bibliography xi