European Collective Action: Towards Coherence?

Abstract

Collective action procedures exist in many jurisdictions. The European Commission's policy goal is to harmonize collective redress in consumer and competition law, to improve access to justice, and to enhance deterrence against unlawful commercial practices. A European collective action process should include sufficient safeguards against abusive litigation, without compromising the procedure's effectiveness. This article considers which safeguards might be appropriate, drawing on comparative examples from national civil justice systems within and outside the European Union. It concludes that national idiosyncrasies as well as Commission policy aims should inform the design of a European collective action mechanism. Abusive litigation will not be prevented if safeguards are weak or poorly targeted, but highly restrictive safeguards will create insurmountable barriers to justice; both approaches could undermine existing national collective action processes. An ill-conceived collective action process could exacerbate rather than ameliorate disparities in access to justice across Member States. Alternative dispute resolution schemes may allow a more flexible approach, accommodating national differences, and so could potentially be effective in delivering the Commission's primary policy aims in a coherent way.