Consumer Collective Actions in Cross-Border Claims LAURA CARBALLO PIÑEIRO (USC) 1.- Consumer collective actions: diversity 2.- Problems on recognition and enforcement of foreign decisions 3.- Questions on international jurisdiction and conflict of laws 4.- The need for coordination

Consumer collective actions: diversity Advantages:  for consumers, in particular access to justice  for businesses: preclusion Problems:  for consumers: violation of their due process’ rights  for businesses: abuse of proceedings Taking into account advantages and problems, legislators set up collective actions answering the following questions:  1. which remedy, either injunction or damages  2. in which cases a collective action is admitted to trial  3. who may initiate a collective action  4. are interested consumers to be informed and, in that case, how  5. should they be allowed either to opt in or to opt out  6. may collective proceedings be settled

Consumer collective actions: cross-border problems Different kinds of collective actions Locus standi: group members, public entities or representative associations, usually tied to a given territory Problems on the definition of the collective action and their limits Problems regarding absent consumers and the information and rights that they should be granted In general and because of the aforementioned problems, questions on the binding character of the final decision rendered in collective proceedings

Consumer collective actions and the European Union Directive 98/27/EC, relating to injunctions for the protection of consumer interests White Paper on Damages Actions for Breach of EC Antitrust Rules [COM (2008) 165 final] Green Paper on Collective Consumer Redress [COM (2008) 794 final] Regulation (EC) Nr. 2006/2004, on Consumer Protection Cooperation Commission Staff Working Document: Towards a Coherent European Approach to Collective Redress [SEC(2011)173 final]

Recognition and enforcement of foreign decisions Art Proposal for Brussels I revision [COM(2010) 748 final] Section 2 shall apply to judgments given in another Member State (b) in proceedings which concern the compensation of harm caused by unlawful business practices to a multitude of injured parties and which are brought by  i. a state body,  ii. a non-profit making organisation whose main purpose and activity is to represent and defend the interests of groups of natural or legal persons, other than by, on a commercial basis, providing them with legal advice or representing them in court, or  iii. a group of more than fifteen claimants.

Art. 48 Proposal on Brussels I revision A judgment shall not be recognised: 1. if such recognition is manifestly contrary to public policy(ordre public) in the Member State in which recognition is sought; 2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so; 3. if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought; 4. if it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed in which recognition is sought

Objections Why only damage collective actions? Absent group members are not defendants Should we control international jurisdiction of the country of origin as well as notification to absent group members? Main problem: the incompatibility clause

International jurisdiction for consumer collective actions International jurisdiction: should we create a specific forum for consumer collective actions?  Art. 2 RB I: defendant’s domicile  Art. 5(1) RB I: the place of performance of the obligation in question  Art. 16 RB I: consumer’s habitual residence  Art. 6(1) RB I: co-defendant’s domicile  Art. 23 RB I: party autonomy Problem: consumers located in different countries. Options:  the State in which the defendant has his/her domicile or is most closely connected to the collective action;  Any consumer’s domicile, providing the defendant has pursued his commercial activities in, or directed his commercial activities to, that country

Applicable law The applicable law  Art. 6 Rome I: the most protective to consumer, either the chosen law or the law of the consumer’s habitual residence  Art. 3 Rome I: party autonomy  Art. 4 Rome I: he law of the country where the party required to effect the characteristic performance of the contract has his habitual residence A Pan-European collective action? Problem: managerial problems when different laws are applicable Options: law of the defendant’s domicile, of the representative plaintiff’s domicile, of the most affected market?

The need for coordination Lack of rules and inapplicability of the existing ones regarding the relationship between:  Collective actions and individual proceedings, apart from the right to opt in/opt out.  Collective actions of the same, but also different kind Which is not going to be solved by a future instrument, since it may set up a right to opt in Rules on coordination of parallel proceedings, following the example of Regulation 1346/2000, on insolvency proceedings.