ERA Forum (2009) 10: 1 5 DOI 10.1007/s12027-009-0108-5 EDITORIAL Editorial ERA Forum 2009-1 Leyre Maiso Fontecha Published online: 28 February 2009 ERA 2009 Abstract The current issue of ERA Forum gathers a series of articles, previously presented at ERA seminars, dealing with current topics of European consumer law, such as collective redress and the latest case law of the European Court of Justice, and of European social law, such as the Lisbon Treaty and Social Europe and antidiscrimination law. 1 Consumer protection 1.1 Collective redress A fierce debate is taking place on the issue of collective redress at EU level. With the aim of providing effective redress for consumers, the European Commission is examining the potential of introducing collective redress mechanisms in the EU. It is often the problem that EU consumers refrain from taking legal action for small claims. This is due in particular to high litigation costs and complex and lengthy procedures. Through a collective redress system, small claimants affected by a single breach of the law would be able to join forces and bring a case before court to obtain redress and compensation. Such claims could even be brought by a third-party representative, who could for example be a consumer organisation. In its EU Consumer Policy Strategy 2007 2013 of 13 March 2007 1,theEuropean Commission announced its intention to consider action on consumer collective L.M. Fontecha ( ) Academy of European Law, Metzer Allee 4, 54295 Trier, Germany e-mail: lmaiso.era.prog1@era.int 1 COM (2007) 99 final, 13.03.2007.
2 L.M. Fontecha redress within its objective of promoting the retail internal market by increasing consumers and retailers confidence in cross-border shopping. This intention was welcomed by the European Parliament, the Council and the European Economic and Social Committee. On 27 November 2008 the Commission adopted a Green Paper on Consumer Collective Redress. 2 The purpose of the Green Paper is to assess the current state of redress mechanisms in particular in cases where many consumers are likely to be affected by the same legal infringement, and to provide options to close any gaps to effective redress identified in such cases. The Green Paper sets out 4 options: (1) No immediate EC action: relying on the existing national and EC measures 3 and therefore leading to a fragmented situation where consumers across the EU would have a different level of redress depending on their place of residence or on the place where the transaction took place or where the damaged occurred, (2) Cooperation between Member States: extending national collective redress systems to consumers from other Member States without a collective redress mechanism, (3) A mix of policy instruments: improving alternative dispute resolution mechanisms, extending the scope of national small claims procedures to mass claims, extending the scope of the Consumer Protection Cooperation Regulation, encouraging businesses to improve their complaint handling schemes and taking actions to raise consumers awareness of existing means of redress, (4) A judicial collective redress procedure: binding or non-binding EU measure to ensure that a collective redress judicial mechanism exists in all Member States. Stakeholders have until 1 March 2009 to submit their views on consumer collective redress to the European Commission. A possible legislative proposal from the European Commission would then follow sometime later in 2009. Reactions to the Green Paper have been immediate. Consumer organisations have criticised the Green Paper for its lack of ambition. Main concerns from industry, however, relate to the fear of establishing in the EU a US-style system of class action for damages, leading to unmeritorious claims, punitive damages or contingency fees. European Commissioner Meglena Kuneva has insisted that if a collective redress mechanism is introduced at EU level it would be a purely EU-style system which would remedy the mistakes of the US system. What would an eventual EU collective redress mechanism look like? At present, thirteen EU countries have collective redress systems in place. Each of these differ from each other. It is therefore necessary to look at these systems in order to extract from them what works in practice. Four articles in this issue present the experiences with collective redress in a number of Member States. As Per Henrik Lindblom explains in his article, the Swedish Group Proceedings Act of 2002, now in force for over six years, has been made use of in twelve cases. Private, public and organisation actions are permitted but 11 of the 12 cases dealt 2 COM (2008) 794 final, 27.11.2008. 3 Such as the Mediation Directive 2008/52/EC and the European Small Claims Regulation 861/2007 which have however limited application to mass claims.
Editorial ERA Forum 2009-1 3 with to date were private group actions. In Germany, the main recent development in this area was the introduction of the Capital Market Model Case Act in 2005. The adoption of this law was prompted by the famous Telekom case. A detailed account of this is given in the article by Astrid Stadler. The article of Remo Caponi deals with the introduction at the end of 2007 of Article 140-bis in the Italian Consumer Code allowing consumers to make use of collective redress actions. Finally, Loïc Cadiet presents the current debate taking place in France on the possibility of introducing group actions, in addition to other existing forms of collective actions. The main problem is the requirement in French law of a personal interest to take action. A parallel and more advanced initiative of the European Commission is the Directorate-General for Competition s debate on the private enforcement of antitrust rules. The White Paper on Damages Actions for Breach of the EC Antitrust Rules 4 suggests specific policy choices and measures that would help give all victims of infringements of EC competition law access to effective redress mechanisms so that they can be fully compensated for the harm they suffer. ERA will certainly continue to follow developments on this topic closely and contribute to facilitating the debate and understanding of the main problems and legal issues involved through its programme of activities in the coming years. 1.2 Recent case law of the European Court of Justice Another interesting paper included in this issue looks at some of the recent cases decided by the European Court of Justice in the area of consumer protection. The cases presented by Evelyne Tichadou deal with diverse aspects of consumer contract law such as: misleading and comparative advertisement; the right of cancellation of contracts negotiated away from the business premises; the right of the consumer to pursue remedies against the grantor of credit for non-performance with the contract relating to the goods or services financed by credit; the possibility of raising the unfair nature of a term in the context of an action brought against the arbitration award; and the right of the seller, where goods not in conformity are replaced, to require the consumer to pay compensation for the use of those goods. 2 European Social Law 2.1 The Lisbon Treaty and Social Europe Brian Bercusson, who suddenly passed away in August 2008, was one of the most eminent authorities on European labour law. ERA had the pleasure to collaborate with him for many years. On the last occasion that he spoke at an ERA event on 4 April 2008, he presented his views on the future of Social Europe. The reference to the EU Charter of Fundamental Rights is the most significant feature of the Treaty of Lisbon for the future of Social Europe. While the Treaty establishing a Constitution for Europe placed the EU Charter in Part II (before Part III 4 COM (2008) 165, 2.4.2008.
4 L.M. Fontecha where the economic freedoms were) which, according to the author, gave a special legal value to it the Lisbon Treaty gives the Charter only the same value as the Treaties. The judgments of the European Court of Justice in the Laval 5 and Viking 6 cases of 18 December 2007 and 11 December 2007 respectively, are of course a necessary reference when speaking about the idea of Social Europe. Both cases concern the compatibility with EU law of the right to take industrial action against companies exercising their free movement rights. These much-debated judgments have far-reaching consequences for the social models of some Member States. While some consider the judgments to be a threat to social Europe by legitimating social dumping, others argue that the judgments ensure the freedom of movement and establishment of companies within the EU. The inclusion of this paper in this issue of ERA Forum is intended as a tribute to its author Brian Bercusson. ERA would like to express its immense appreciation of Brian s commitment towards our institution. Brian regularly participated in ERA s events and was an active member of ERA s Board of Trustees, our advisory board. We would also like to express our warm gratitude to his wife for authorising the publication of this paper. 2.2 Anti-discrimination EC Council Directives 2000/78 and 2000/43 prohibit all forms of discrimination based on race or ethnic origin in a number of areas and all forms of discrimination in employment and occupation based on religion or convictions, handicap, age, sexual orientation and other grounds. Since their adoption in 2000, the European Court of Justice has had the opportunity to interpret the provisions of these Directives on seven occasions 7, while seven cases remain pending. 8 Three of the judged cases (and six of the pending ones) deal in particular with the prohibition of discrimination on the grounds of age. This is the subject of the article by Helen Meenan in this issue. 5 Case C-341/05 Laval v Svenska Byggnadsarbetareförbundet [2007] ECR I-11767. 6 Case C-438/05 International Transport Workers Federation and Finnish Seamen s Union v Viking Line [2007] ECR I-10779. 7 Cases C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981; C-13/05 Sonia Chacón Navas v Eurest Colectividades SA [2006] ECR I-6467; C-411/05 Félix Palacios de la Villa v Cortefiel Servicios SA [2007] ECR I-8531; C-267/06 Tadao Maruko v Versorgungsanstalt der deutschen Bühnen, Judgment of 1 April 2008, not yet reported; C-54/07 Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV, Judgment of 10 July 2008, not yet reported; C-303/06 S. Coleman v Attridge Law and Steve Law, Judgment of 17 July 2008, not yet reported and C-427/06 Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH, Judgment of 23 September 2008, not yet reported. 8 Cases C-388/07 The Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform; C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG; C-88/08 David Hütter v Technische Universität Graz; C-147/08 Jürgen Römer v Freie und Hansestadt Hamburg; C-229/08 Colin Wolf v Stadt Frankfurt am Main; C-341/08 Dr Domnica Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe and C-499/08 Ingeniorforeningen I Danmark for Ole Andersen v Region Syddanmark.
Editorial ERA Forum 2009-1 5 The most problematic issue that has arisen in age discrimination is compulsory retirement ages, as they involve a less favourable treatment of older workers in respect of younger ones based solely on their age. Directive 2000/78 does not prohibit their use but has imposed an objective justification requirement, as confirmed by the European Court of Justice. Further case law is expected to clarify to what extent the use of compulsory retirement ages within the EU will be affected. ERA has contributed to the promotion of awareness of anti-discrimination law among the legal profession and the judiciary in particular. From 2003 to 2007, ERA organised three seminars annually two of which exclusively for judges and prosecutors within the framework of the European Commission s Action Programme to Combat Discrimination. Since 2007, ERA has been organising six seminars annually three exclusively for judges and prosecutors under the framework of the new PROGRESS programme. By the end of 2008, ERA had trained more than 600 European judges and more than 400 European lawyers on this sensitive issue. 9 These seminars also offer the possibility to exchange experiences among colleagues from different countries in Europe. An illustration of this is the article by Geoffrey Kamil on the role of the judge in a diverse community, presented at one of these events. Judge Kamil has been actively involved in a unique initiative to bring the justice system closer to local communities. A group of so-called diversity and community relations judges have been engaged not only to act as a point of reference or contact for communities with the justice system but also to go out into the community to promote their work. From this year, ERA will also run a new series of six seminars devoted to the EC legislation on equal treatment between women and men, also under the framework of the European Commission s PROGRESS programme. We look forward to reporting further on this topic in future issues of ERA Forum. 9 For more information on ERA s series of seminars to raise awareness among judges and legal practitioners on the EU anti-discrimination legislation, please visit: www.era.int/anti-discrimination.