In parallel with issuing the proposal that would ultimately lead to the Damages Directive, in June 2013 the European Commission also published a recommendation on collective redress measures. The recommendation stressed that all Member States should have mechanisms available at national level both for injunctive and compensatory relief in “mass harm situations” involving breaches of EU law (including but not limited to competition law).
The Commission has now published a report on the progress made by Member States in implementing the recommendation. It shows that the availability of collective redress mechanisms, and safeguards against the abuse of such mechanisms, is still not consistent across the EU. Indeed, the report admits that legislative progress in this area has been “rather limited”. Belgium, Lithuania, Slovenia and, to a lesser extent, France and the UK have each promoted collective redress since 2013. In the UK, this has been through the introduction of an ‘opt out’ for representative claims in the Competition Appeal Tribunal, which came into effect on 1 October 2015 (for more information, see our previous briefing on the subject). Nevertheless, there are still nine Member States that do not provide for any possibility of collective redress for damages arising from breaches of EU law, and even in those Member States where such action is permitted, there are practical obstacles for would-be litigants to overcome. These failings are exemplified by the challenges faced in recent cases such as the car emissions scandal, where car manufacturers such as Volkswagen were found to have manipulated tests for air pollution at the expense of consumers.
The report indicates that the Commission will continue to promote and analyse the recommendations. Furthermore, the findings of the report will feed into preparations for the “New Deal for Consumers”, which the Commission aims to propose in spring 2018 as part of its endeavours to further strengthen methods of enforcement and redress for consumers.