Collective Actions in Civil Procedure a comparative overview

Germany Political Issue: Public interest enforced through administrative rather than judicial means. Overtaxed European economies finance public agencies to monitor market and public interest. Judicial intervention viewed as burdensome Economic Analysis: Fear of astronomic sums and fees. Do European markets support „class actions“?

Brazil and Latin America Political Issues: a) Public agencies have a lack of resources to enforce public interests; b) Is the judiciary adequate in delivering social justice? Economic Analysis: a) the state as defendant: tax payers pay the bill; b) more social justice or more economic growth?

2 Collective Actions Individual rights in collective procedures Monetary relief Public Interest: collective rights (quality of life or non-exclusion rights) Injunction and declaratory relief, Stop Orders

German Injunction Actions Unterlassungsklagegesetz – UKlaG (2002): Injunctions in unfair consumer contracts (§ 1) and unlawful practices (§ 2). Unterlassungsklage (UWG): Unfair Competition Act (§ 8): Injunction Behindertengleichstellungsgesetz: Disabled Rights Act (§ 13): all sorts of claims

Brazilian Collective Actions Legislation Public Civil Action Act (7,347/85): environmental and cultural rights protection Consumer Code (8,072/90) Disadvantaged: children (8,089/90), elderly people (10,741/2003), the disabled (7,853/89) Investors in the stock market (7,913/89)

Adequate representatives Germany: consumer associations as „qualified entities“ (Directive 98/27). They must be registered at the Ministry of Administration. § 4 UKlaG Brazil: Office of Attorney-General, non-profit associations, among others public entities. Art. 82 Consumer Code.

An Industry dumps toxic waste in river Germany: primarily through self-enforcement of administrative acts. Damages must be sought individually. Brazil: Stop order based upon Public Civil Action Act (art. 1.), order to reinstate the status quo ante (specific performance) or, when not possible, to award damages to a public fund.

Government plans to build new airport with environmental objections Brazil: Action based upon art. 1. Public Civil Action Act (7.347/85). Stop order and possibly monetary relief to a public fund. Germany: Environmental Associations can seek declaratory relief: declaring the administrative act illegal (Administrative Courts), based upon Federal Environmental Act.

Telecom inserts unfair clause charging $1 Germany: Injunction Action (Stop order), based upon § 307 ff BGB. Monetary relief only in individual actions. Former contracts are valid. Brazil: Declaratory (the clause is void, art. 81, II) based upon art. 51 (unfair clauses CDC) and monetary relief addressed to the consumers (art. 81, III).

Bank charges hidden costs to its clients Brazil: Public Civil Action based upon unfair practice (Consumer Code) monetary recovery Germany: Injunction Action (Stop order), based upon § 3 UKlaG

Transport companies form a cartel to impose artificial freight prices Brazil: Public Civil Action based upon art. 29 Unfair Competition Act (8,884/94). Monetary relief to the class members Germany: Injunction Action based upon § 1 UWG – Stop order and § 10 – monetary relief as punitive damages to the state (Gewinnabschöpfung)

Medicine causes harmful side-effect Brazil: Public Civil Action based upon Consumer Code seeking monetary relief and injunction to withdraw product from market. Germany: Social Security for personal injuries. Injunction based upon § 2, II, 5 UKlaG. Public Agency probably intervenes first.

Gas explosion in shopping centre: injuries and damages Brazil: Action based upon art. 81, III Consumer Code (homogeneous individual rights) Germany: no collective action. Social Security pays for injuries and seeks regress against those responsible.

Advertisement lures consumers into buying holiday packages with hidden costs Brazil: Public Civil Action based upon Consumer Code: order to stop the ad, and alternatively – to force the company to keep to the offered price or monetary relief Germany: Injunction Action based upon § 5 UWG (unfair competition act): stop order. Sort of punitive damages to the state (Gewinnabschöpfung) in § 10.

Access for disabled people to public building Brazil: Public Civil Action based upon Handicapped Protection Act (art. 3). Order to perform. Germany: associations can sue on behalf of disabled people, based upon § 13 Disabled Protection Act all claims, including monetary relief.

Adequate representative seeks to declare a tax unconstitutional Brazil: Supreme Courts (STJ and STF) do not allow such actions. Unconstitutionality in general terms is STF competence. Germany: Federal Constitutional Court jurisdiction (but not in Collective Actions)

Substantive Act imposes government to provide adequate public services (prisons, schools, etc.) Brazil: High Courts (STJ) start to admit specific performance in such actions, based upon Public Civil Action Act Germany: executive matter.

Perspectives Germany: Gradually developing collective actions seeking monetary awards. European Union pressure to introduce a class action. Brazil: Project to introduce a Collective Procedures Code: creative solutions, wide-ranged application.