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Austria

Austria is actively debating whether to adopt formal group action legislation. At present the following four alternatives for group and class litigation are available:

1. Consolidation of individual cases currently pending
2. Joinder of parties, a strict standard that requires a high degree of similarity between claims
3. A model case, whichis taken to judgment before the Austrian Supreme Court
4. Assignment of individual claims to a consumer organization, which then files a single action

Reference:

• Alexander Klauser, “Group Litigation in Austria,” a speaker paper for the conference “Class Actions at a Crossroads: Europe’s Choice Between Its Own and the American Model,” held in Rome, Italy, on May 24–25, 2007. The conference was presented by the Litigation Committee of the Dispute Resolution Section of the International Bar Association and the Section of International Law of the American Bar Association. The speaker papers are available for purchase from IBA. http://www.ibanet.org.

(This information was updated May 2008.)

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Belgium

Belgium does not have a general class action procedure at this time, but the country does permit professional and charitable organizations to bring collective action for injunction under a variety of specific statutes. In addition, civil procedure provisions allow for multiple named plaintiffs to sue together against a common defendant; joinder is allowed; and suit by an agent is permitted if authorized by contract or law.

Organizations must qualify under the rules of each specific statute.

Reference:

• Matthias E. Storme and Evelyne Terryn, “Belgian Report on Class Actions,” a national report for the conference “The Globalization of Class Actions,” held in Oxford, England, on December 12–14, 2007 (co-sponsored by Stanford Law School and the Centre for Socio-Legal Studies of Oxford University). Available at http://www.law.stanford.edu/classactionconf

(This information was updated May 2008.)

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Denmark

Effective January 2008, Denmark enacted formal class action rules under the Danish Administration of Justice Act, primarily to allow access to the court for individuals with claims too small to litigate separately.

To maintain a class action, the following requirements must be met: The claims must be similar in nature; they must be attributable to a number of persons; and a representative must act as the party during the proceedings. The court must find that the class device is the best way to manage the litigation, and that the class members are identifiable and capable of being given notice.

References:

• Dan Terkildsen and Morten Schwartz Nielsen, “The New Act on Class Actions in Denmark,” International Litigation News, September 2007, 50. (This newsletter is published by the International Bar Association, Legal Practice Division, http://www.ibanet.org.)
• Erik Werlauff, “Class Actions in Denmark — from 2008,” a national report for the conference “The Globalization of Class Actions,” held in Oxford, England, on December 12–14, 2007 (co-sponsored by Stanford Law School and the Centre for Socio-Legal Studies of Oxford University). Available at http://www.law.stanford.edu/classactionconf.

(This information was updated May 2008.)

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England

England permits collective litigation in three forms:

1. “Group Litigation Orders” (GLO). GLOs were formally adopted in England in 2000. Claims must concern common or related issues, and there must be a “number” (unspecified) of claims.
2. Representative actions. If multiple persons have the “same interest” in their claims, representative action may be maintained — with one or more acting as the representative.
3. Anti-competition claims by consumers.

Various innovations, including the following, are being used to make group action more economically attractive:

• “Conditional fee agreements”
• Litigation funding by third parties
• Insurance for adverse costs awards

References:

• Christopher Hodges, “Global Class Actions Project Country Report: England and Wales,” a national report for the conference “The Globalization of Class Actions,” held in Oxford, England, on December 12–14, 2007 (co-sponsored by Stanford Law School and the Centre for Socio-Legal Studies of Oxford University). Available at http://www.law.stanford.edu/classactionconf.
• Simon Moore, “Class Action Antitrust Damages Litigation in England at the Crossroads — The Way Forward or Another Dead End?” International Litigation News, September 2007, 28. (This newsletter is published by the International Bar Association, Legal Practice Division, http://www.ibanet.org.)
• Chris Warren-Smith, “European Legislative Development on Collective Actions,” a speaker paper for the conference “Class Actions at a Crossroads: Europe’s Choice Between Its Own and the American Model,” held in Rome, Italy, on May 24–25, 2007. It was presented by the Litigation Committee of the Dispute Resolution Section of the International Bar Association and the Section of International Law of the American Bar Association. The speaker papers are available for purchase from IBA. http://www.ibanet.org.
• Chris Warren-Smith, Tim Strong, and Ilona Turnbull, “Group Litigation in England — Is Litigation Funding the Key to Its Development?” International Litigation News, September 2007, 32. (This newsletter is published by the International Bar Association, Legal Practice Division, http://www.ibanet.org.)

(This information was updated May 2008.)

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European Union

The European Union (EU) is actively debating whether to introduce further cross-border provisions for collective litigation. The extent to which the EU has jurisdiction to impose such measures remains an open question.

Currently several Directives exist that require Members States to provide adequate legal remedies for consumers, including group remedies through organizations.

Reference:

• Christopher Hodges, “Global Class Actions Project: Summary of European Union Developments,” a national report for the conference “The Globalization of Class Actions,” held in Oxford, England, on December 12–14, 2007 (co-sponsored by Stanford Law School and the Centre for Socio-Legal Studies of Oxford University). Available at http://www.law.stanford.edu/classactionconf.

(This information was updated May 2008.)

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Finland

Finland adopted a limited system of “public” class actions in 2007. Only consumer disputes can be brought as class actions, and they can be brought only by the Consumer Ombudsman. The individual class members are not parties to the action.

The filing requirements for a class action are as follows: (1) claims of several persons must be involved; (2) the claims must arise out of the same or similar circumstances; (3) and the class must be precisely defined.

References:

• Petra Kiurunen, “The New Finnish Act on Class Actions: A Toothless Tiger or a Forerunner for a European Model?” International Litigation News, September 2007, 37. (This newsletter is published by the International Bar Association, Legal Practice Division, http://www.ibanet.org.)
• Klaus Viitanen, “Collective Litigation in Finland,” a report for the conference “The Globalization of Class Actions,” held in Oxford, England, on December 12–14, 2007 (co-sponsored by Stanford Law School and the Centre for Socio-Legal Studies of Oxford University). Available at http://www.law.stanford.edu/classactionconf.

(This information was updated May 2008.)

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France

Despite extensive debate, France has no formal class action system,  but authorized associations can bring representative litigation.

1. Collective actions by approved associations. Associations that meet the required criteria may sue for collective injunctive relief in specified areas of law.
2. Joint representative actions. Approved associations may bring actions for damages on behalf of individual consumers or investors if at least two persons request the action in writing — an opt-in system.

Reference:

• Véronique Magnier, “Class Actions, Group Litigation & Other Forms of Collective Litigation Protocol for National Reporters: France,” a national report for the conference “The Globalization of Class Actions,” held in Oxford, England, on December 12–14, 2007 (co-sponsored by Stanford Law School and the Centre for Socio-Legal Studies of Oxford University). Available at http://www.law.stanford.edu/classactionconf.

(This information was updated May 2008.)

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Germany

Germany permits a variety of representative actions, although it does not yet have a full-fledged class action system.

1. Collective litigation by associations or interest groups.
2. Securities law: Capital Investors Model Proceedings Act (“KapMuG”). Adopted in 2005 as a five-year experiment, and limited to the area of securities law, a Model Case Proceeding is selected by the trial court and sent to the appellate court for early resolution of key common issues of fact and law.  
3. Other collective methods. Other strategies in use for group litigation include assignment of individual claims to an entity that then sues in its own name, and traditional joinder of individual cases.

References:

• Dietmar Baetge, “Class Actions, Group Litigation & Other Forms of Collective Litigation: Germany,” a national report for the conference “The Globalization of Class Actions,” held in Oxford, England, on December 12–14, 2007 (co-sponsored by Stanford Law School and the Centre for Socio-Legal Studies of Oxford University). Available at http://www.law.stanford.edu/classactionconf.
• Mark C. Hilgard and Jan Kraayvanger, “Class Actions and Mass Actions in Germany,” International Litigation News, September 2007, 40. (This newsletter is published by the International Bar Association, Legal Practice Division, http://www.ibanet.org.)

(This information was updated May 2008.)

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Italy

The New Italian ‘Collective Action For Damages’: A Synopsis
Elisabetta Silvestri*

Toward the end of 2007, the Italian Parliament passed an amendment to the Consumers’ Code that now provides for a new collective action for damages. Even though the amendment has been heralded as a long-awaited Copernican revolution in the field of civil justice, the new regulation shows a baroque complexity that will not advance the cause of consumers’ rights, most of all in a country in which judicial proceedings take decades to come to a final judgment.
According to the new section 140 bis of the Consumers’ Code, consumers associations may bring an action for monetary redress against sellers and suppliers, and claim damages arising out of contracts, torts, and unfair or restrictive trade practices, insofar as the rights and interests of a plurality of consumers are adversely affected. In principle, standing to sue is granted to the consumers associations that have been accredited by the government and are included in a special list kept by the Department of Economic Development; these associations are the ones that may commence collective actions for injunctive relief, based on other provisions of the Consumers’ Code that have been adopted in the past to discharge the duty to implement several European Union directives. As far as the new collective action for damages is concerned, section 140 bis contemplates the possibility that other, non-accredited consumers associations will be granted standing to sue as well, if they adequately represent the collective interests for whose enforcement the action is commenced.
Once the action is brought, the court must certify it as admissible and direct adequate notice as to the nature of the action and the development of the procedure. Individual consumers willing to avail themselves of the collective action and its outcome (supposing it is favorable to them) must “adhere” to the proceeding: in other words, they must opt-in. Opting-in is the only chance consumers have to be entitled to their shares of the damages awarded by the court if it finds for the plaintiff. Individual actions for damages may be brought only by the consumers who chose not to opt-in and are not bound by the judgment issued in the collective action. It is not clear how consumers may express their “adhesion,” considering that section 140 bis allows them also to become parties to the proceeding by way of formal intervention, that is, appointing their own lawyer, and complying with all the requirements laid down by the Code of civil procedure.
The proceeding develops through convoluted steps: court orders as to the minimum amount of damages each consumer may claim, offers of settlement made by the defendant, and repeated attempts at conciliation before an ad hoc panel and other bodies. All in all, the new collective action for damages does not seem very efficient and – most of all – consumer friendly.
The new regulation was supposed to come into force on June 28, 2008, but soon after the general political elections that took place in April 2008, and which witnessed the victory of a center-right coalition, rumor had it that some last-minute measures changing again the Consumers’ Code or postponing the entry into force of section 140 bis were to be expected. In fact, on June 17, 2008 the press announced that the government intends not only to postpone to January 2009 the coming into force of section 140 bis, but also to modify substantially the procedural device the rule provides for. The news brought about negative comments by consumers associations, according to which the government surrendered to the pressures of Confindustria (the association representing Italian manufacturing and service companies), that on several occasions had raised strong criticism against the new collective action, seen as a declaration of war against the Italian business community, and as a new hurdle that is bound to discourage foreign companies from investing in Italy. Therefore, as of now it can be said that the collective action for damages is floating in a sort of limbo: it exists on paper, but maybe it will never come into force.
Scholars have already poured rivers of ink over the topic of the collective action for damages in an attempt to make some sense of a piece of legislation that is anything but clear and effective. Only time will tell whether their analyses are a fruitful effort or, on the contrary, a useless exercise of their skills in the interpretation of a rule that will never become enforceable.

The text of the Consumers’ Code is available online, at
http://www.codicedelconsumo.it/CODICE_CONSUMO_2008.pdf. Unfortunately, an English translation of the Code is not available.

Contact information:

Prof. Elisabetta Silvestri
Facoltà di Giurisprudenza
Strada Nuova, 65
27100 Pavia (Italy)
Tel. +39 0382 986 919
Fax +39 0382 986 921
elisabetta.silvestri@unipv.it

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Netherlands

The Netherlands has a civil law tradition that permits collective litigation brought by organizations, such as consumer associations and foundations; but it disallows class actions by individual plaintiffs. Remedies in litigation brought by organizations are limited to injunctive and declaratory relief, except for special legislation on collective settlements.

1. Collective actions.  Only organizations or foundations may sue, and their articles of association must provide for this activity. The organization acts in its own name, not as a representative.
2. Collective settlements. In 1995, the Netherlands passed the Act on the Collective Settlement of Mass Claims, under which damages can be awarded. The settlement is negotiated out of court without prior litigation. The parties petition the Court of Appeals to approve the settlement according to specified criteria.

References:

• Albert Knigge, “New developments on Collective Actions in the Netherlands,” International Litigation News, September 2007, 52. (This newsletter is published by the International Bar Association, Legal Practice Division, http://www.ibanet.org.)
• Ianika Tzankova and D.F. Lunsingh Scheurleer, “Dutch Report,” a national report for the conference “The Globalization of Class Actions,” held in Oxford, England, on December 12–14, 2007 (co-sponsored by Stanford Law School and the Centre for Socio-Legal Studies of Oxford University). Available at http://www.law.stanford.edu/classactionconf.

(This information was updated May 2008.)

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Norway

Norway has a predominantly civil law system, although the judiciary is given considerable discretion. For many decades, Norway has permitted representative litigation brought by organizations in their own names. Effective January 2008, Norway has a class action law as part of its Dispute Act.

Reference:

• Camilla Bernt-Hamre, “Class Actions, Group Litigation & Other Forms of Collective Litigation in the Norwegian Courts,” a national report for the conference “The Globalization of Class Actions,” held in Oxford, England, on December 12–14, 2007 (co-sponsored by Stanford Law School and the Centre for Socio-Legal Studies of Oxford University). Available at http://www.law.stanford.edu/classactionconf.

(This information was updated May 2008.)

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Poland

Poland now is a civil law system. No formal procedure for class actions exists in the Code of Civil Procedure, although various proposals for group litigation are being considered. Poland does, however, have long-established methods for nonclass representative litigation, including the following:

1. Public “prosecutors.” Poland’s public prosecutors handle civil, criminal, and administrative claims. They may initiate litigation, join in existing litigation, or participate more passively by offering opinions in cases.
2. Social organizations. Social organizations that meet specific requirements may similarly bring claims or join in existing cases to protect citizens’ rights for specific types of claims, including environmental protection.
3. Regional (town) consumer ombudsmen.
4. Public bodies. Certain enforcement is carried out by public bodies charged with protecting consumers.

Reference:

• Magdalena Sengayen, “Poland — Legal System in Transition,” a national report for the conference “The Globalization of Class Actions,” held in Oxford, England, on December 12–14, 2007 (co-sponsored by Stanford Law School and the Centre for Socio-Legal Studies of Oxford University). Available at http://www.law.stanford.edu/classactionconf.

(This information was updated May 2008.)

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Portugal

Portugal’s methods of collective litigation include the following:

• The right of popular action. Popular actions can be brought to protect interests in areas that include the environment, consumer rights, public health, quality of life, and cultural heritage. Standing is given to individual citizens, associations, and foundations; a personal stake in the claim is not required.
• Joinder
• “Aggregation,” wherein a similar act can be taken in several pending cases without formal joinder
• Test claims in its administrative procedure law, when at least 20 similar cases have been proposed

Reference:

• Henrique Sousa Antunes, “Class Actions, Group Litigation & Other Forms of Collective Litigation: Portuguese Report,” a national report for the conference “The Globalization of Class Actions,” held in Oxford, England, on December 12–14, 2007 (co-sponsored by Stanford Law School and the Centre for Socio-Legal Studies of Oxford University). Available at http://www.law.stanford.edu/classactionconf.

(This information was updated May 2008.)

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Spain

Spain has a civil law, adversarial legal system. By amendments to its civil law in 2000, Spain expanded the availability of group litigation, which now includes the following:

• Collective consumer claims
• Standard improper contract terms
• Collective compensation orders in criminal cases
• Environmental claims.  Spain recognizes a constitutional right to “enjoy an environment suitable for the development of the person.” Individuals as well as organizations can seek collective relief for environmental crimes.
• Joinder and consolidation

Reference:

• Pablo Gutiérrez de Cabiedes Hidalgo, “Group Litigation in Spain,” a national report for the conference “The Globalization of Class Actions,” held in Oxford, England, on December 12–14, 2007 (co-sponsored by Stanford Law School and the Centre for Socio-Legal Studies of Oxford University). Available at http://www.law.stanford.edu/classactionconf.

(This information was updated May 2008.)

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Sweden

Sweden formally instituted broad group litigation with the Group Proceedings Act of 2002. Previously, a form of group action was permitted only in the special Labor Court and Market Court. Under the 2002 Act, private, public, and organization class actions are now permitted and may assert all types of civil causes of action. Parties may seek damages as well as injunctive and declaratory relief.

Reference:

• Per Henrik Lindblom, “National Report: Group Litigation in Sweden,” for the conference “The Globalization of Class Actions,” held in Oxford, England, on December 12–14, 2007 (co-sponsored by Stanford Law School and the Centre for Socio-Legal Studies of Oxford University). Available at http://www.law.stanford.edu/classactionconf.

(This information was updated May 2008.)

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Switzerland

Switzerland has a civil law legal system. It does not have a formal class action procedure, and there is ideological resistance to adopting such a method anytime soon. However, Switzerland has a long tradition of other types of representative actions, both in the civil courts and in administrative venues:

1. Association suits. Associations may sue in civil court for group relief in a number of subject areas.
2. Administrative association suits. An association may sue in an administrative tribunal to challenge governmental decisions.
3. Shareholder litigation.
4. Joinder; consolidation; and test cases where parties agree to be bound by the result.

Reference:

• Samuel P. Baumgartner, “Group Litigation in Switzerland,” a national report for the conference “The Globalization of Class Actions,” held in Oxford, England, on December 12–14, 2007 (co-sponsored by Stanford Law School and the Centre for Socio-Legal Studies of Oxford University). Available at http://www.law.stanford.edu/classactionconf.

(This information was updated May 2008.)

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