Search

Copyright of Andares: Revista de Derechos Humanos y de la Naturaleza is the property of Quito Universidad Andina Simon Bolivar, Sede Ecuador and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

In comparison to other Member States, Poland has had experience in dealing with mass claims for quite some time, having introduced the Act of Pursuing Claims in Group Proceedings way back in 2009. This paper includes a brief overview of the legislative framework for collective redress in Poland with special consideration of consumer claims. Further, it examines the evidence-based reality of group proceedings with the purpose of identifying and addressing the problems in functioning of this mechanism in practice. To achieve this aim, it delves into a case study of one of the most significant group proceedings so far – that related to the so-called 'Swiss loan crisis' in Poland. [ABSTRACT FROM AUTHOR]

This paper discusses the use of the concept of Fair Funds for consumer competition law enforcement from an EU perspective. With such Fair Funds, the US Securities and Exchange Commission distributes collected fines and disgorged profits to compensate victims of securities law violations. The paper explains the use of Fair Funds in US law, highlights similarities, and adapts the concept for use in European competition law enforcement. It places an emphasis on the usefulness of such a concept against the role of consumers, but the conclusions can equally be drawn for small and medium enterprises’ private enforcement or private enforcement of competition law in general. It shows the advantages and disadvantages of including a system of Fair Funds. The paper argues that Fair Funds can serve as an alternative form of compensation, particularly for large groups of individual victims harmed in a small amount, such as consumers, with that overcome the lack of a harmonized collective redress system on EU level, and improve the coordination between public and private enforcement. [ABSTRACT FROM AUTHOR]

Workers subject to algorithmic management, both in platform work and in conventional employment settings, often face a justice gap in enforcing their rights, due to the opacity characterizing most automated algorithmic decision-making processes. This paper argues that trade unions are in a more favourable position than individual workers to fill this justice gap through litigation, especially when collective redress mechanisms are available. However, this becomes possible only when the legal system is favourable to this type of litigation. This article analyses three legal domains at EU level where justiciable rights are more likely to be violated through algorithmic management devices, in order to assess whether it is legally feasible for trade unions to promote algorithmic litigation under EU law. Even when the legal framework is conducive to this type of litigation, it cannot be automatically expected that trade unions will more frequently resort to it to better enforce the rights of workers subject to algorithmic management devices. Previous research shows that trade unions are traditionally keen on turning to litigation only when they are able to link it to their broader strategies. This paper claims that this may be the case against employers using algorithmic management. For trade unions, resorting to litigation can be strategically instrumental not only to fulfil the legal purpose of alleviating the justice gap faced by workers through a better ex post enforcement of their rights, but also to achieve the meta-legal purpose of mobilizing them and the para-legal purpose of strengthening collective bargaining, especially considering that this would constitute an effective means to induce stronger ex ante compliance. [ABSTRACT FROM AUTHOR]

The year 2007 heralded a major advance in China's entry to the global economy's rules-based marketplace. Its Anti-Monopoly Law 2007 (AML 2007) taking inspiration from European Union (EU) antitrust concepts contained internationally familiar key antitrust prohibitions. It appeared to satisfy key benchmarks, which any credible antitrust enforcement system should exhibit, namely Legitimacy and Effectiveness. However, in this original contribution, analysing 14 years of leading case law, the authors identify several key persistent Legitimacy and Effectiveness issues which arise when private parties attempt antitrust enforcement through the courts. On key issues such as: (i) Compensation awards inadequacy; (ii) Lack of rights for indirect purchasers; (iii) Absence of a passing-on defence; and (iv) Limitations of collective litigation mechanisms, deficiencies arising in each of these four areas are identified and analysed. Pathways to reform are set out. Comparative analysis with the corresponding EU and US jurisprudence is undertaken throughout, to illuminate the contrast in treatment for antitrust litigants facing similar antitrust situations. Recently enacted reform legislation (AML 2022) does not remedy the antitrust protection concerns identified by the authors. Private parties seeking antitrust redress in China will therefore continue to have weaker remedies in antitrust enforcement cases, in contrast with their EU and US counterparts. The absence of comprehensive reform means that Legitimacy and Effectiveness deficiencies will continue to undermine legal protection for China's private antitrust enforcement litigants. Furthermore, the research demonstrates how norm adoption on its own cannot raise the propect of better outcomes, unless accompanied by corresponding evolution in the provision of more robust enforcement rights and remedies for antitrust litigants, as well as evolution in judicial interpretation to support antitrust norms acceptance. [ABSTRACT FROM AUTHOR]

The paper is focused on the legal regulation of collective proceedings in the Czech Republic in terms of EU legislation (Directive (EU) 2020/1828 of the European Parliament and of the Council on representative actions for the protection of collective interests of consumers and repealing Directive 2009/22/EC) and national legislation of selected EU Member States. It analyses and compares selected institutes of the legislation on collective proceedings, in particular the subject of the collective claimant, the effectiveness of the law on collective proceedings, the model of class actions, or their financing. The paper also addresses the issue of cross-border class actions. In this context, the authors ask how cross-border class actions will be applicable, what impact the setting of the parameters of class action legislation in EU Member States will have on their filing, or what are the risks associated with their filing. [ABSTRACT FROM AUTHOR]

The paper is focused on decisions issued in collective proceedings. It deals with the types of decisions and their components and compares them with decisions issued in individual court proceedings. All this on the background of European legislation and documents pertaining to collective proceedings (Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law (2013/396/EU); Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC and the European Model Rules of Civil Procedure), the German government‘s draft law on consumer redress and the proposed Czech legal regulation of collective proceedings. The author asks what specific types of decisions appear in collective proceedings and what is their purpose, and what special types of decisions known from individual proceedings can be applied in collective proceedings and whether they have any specific meaning for collective proceedings. With regard to the components of the judgment, the question to be examined is what special requirements arise from the specific nature of collective proceedings for the content of the judgment. [ABSTRACT FROM AUTHOR]

Through an ethnographic study of the policy of reparation to victims in Colombia, this article examines the processes of the production of expert knowledge along different scales and disputes of humanitarian bureaucracies in Colombia. These emerge from the institutional deployment of development and peacebuilding paradigms, at least since 1982, with the creation of the National Rehabilitation Plan (PNR), the Social Solidarity Network (RSS) in 1994, the Presidential Agency for Social Action and International Cooperation in 2002, and the Department of Social Prosperity (DPS) in 2011. With the subjugation of some paramilitary groups in 2006 (Justice and Peace Law), the Victims and Land Restitution Law in 2011, and the peace agreements with the Revolutionary Armed Forces of Colombia - People’s Army (FARC-EP) guerrillas in 2016, transitional institutions associated with truth, justice, and reparation proliferated, and with them, specific bureaucracies and expertise. Thus, the article specifically examines the technical and political tensions between different professional and ideological configurations associated with the implementation of reparations policy and how these disputes are essential to understanding the moral and ideological dimensions of humanitarianism and development in Colombia. It also studies the role of cooperation agencies in inter-institutional strengthening as a specific dimension of the formation of the Colombian State. These articulations configure a moral economy of humanitarianism characterized by institutional experimentalism and the formulation of social projects, expectations, plans, and ideas that never reach the status of having been realized. This strips such policies of any transformative or emancipatory potential. Thus, from an ethnographic perspective, the article provides an account of the techno-political tensions of humanitarian bureaucracies at the middle scales of regional, national, and global institutional structures.

Through an ethnographic study of the policy of reparation to victims in Colombia, this article examines the processes of the production of expert knowledge along different scales and disputes of humanitarian bureaucracies in Colombia. These emerge from the institutional deployment of development and peacebuilding paradigms, at least since 1982, with the creation of the National Rehabilitation Plan (PNR), the Social Solidarity Network (RSS) in 1994, the Presidential Agency for Social Action and International Cooperation in 2002, and the Department of Social Prosperity (DPS) in 2011. With the subjugation of some paramilitary groups in 2006 (Justice and Peace Law), the Victims and Land Restitution Law in 2011, and the peace agreements with the Revolutionary Armed Forces of Colombia - People’s Army (FARC-EP) guerrillas in 2016, transitional institutions associated with truth, justice, and reparation proliferated, and with them, specific bureaucracies and expertise. Thus, the article specifically examines the technical and political tensions between different professional and ideological configurations associated with the implementation of reparations policy and how these disputes are essential to understanding the moral and ideological dimensions of humanitarianism and development in Colombia. It also studies the role of cooperation agencies in inter-institutional strengthening as a specific dimension of the formation of the Colombian State. These articulations configure a moral economy of humanitarianism characterized by institutional experimentalism and the formulation of social projects, expectations, plans, and ideas that never reach the status of having been realized. This strips such policies of any transformative or emancipatory potential. Thus, from an ethnographic perspective, the article provides an account of the techno-political tensions of humanitarian bureaucracies at the middle scales of regional, national, and global institutional structures. [ABSTRACT FROM AUTHOR]

This paper demonstrates that the Repetitive Claims Resolution Proceeding (IRDR) has provided a procedurally more auspicious technique for the resolution of mass claims regarding homogeneous individual rights than the article 81, item III of the Consumer Protection Code class actions were able to, for it affords economy of scale without violating litigants autonomy in mass adjudication. At the end, it argues that there is a mixed relationship between class actions and IRDR: a complementary one between both techniques for the protection of negative value claims, and a superiority one, favoring the latter, for the protection of positive value claims.

The article aims to do specific and relevant observations regarding the collective redress in Europe. This is a polemic and enigmatic subject, which has been receiving increasing attention from European political agents. It is also be analyzed the possibility of using collective redress instruments to regulate situations of mass damage, as well as the responses given by Europe to this demand. Finally, it is imperative to emphasize that the present paper does not have the pretension to state if there is some superior model of protection and compensation. The article only intends to critically describe the current scenario, in an attempt to optimize all options for better protection of the collective damages.

The Member States have sufficient leeway to maintain or flexibly shape the domestic map of consumer enforcement system within the European Union, thus reflecting the sociocultural conditions of the Member State concerned. In this study I focus on the consumer redress mechanisms in wider and narrow sense in the Hungarian legal system, highlighting the unique or special solutions. [ABSTRACT FROM AUTHOR]

The paper at hand deals with collective procedural mechanism in the Czech Republic. Class action is nowadays considered one of the main procedural tools to protect consumers. Collective procedure in business-to-consumer disputes is thus on its rise in Europe. Yet, the Czech Republic belongs to few EU Member States where consumers still cannot rely on comprehensive regulation of collective action. The paper firstly provides for a brief introduction of existing possibilities that are governed by the Czech procedural law such as right of a consumer organisation to file for representative action on injunction relief or judge's discretion to use the consolidation of civil proceedings. Further, the article focuses on the question, whether it would be useful if the Czech consumers (or qualified entities on their behalf) could file for collective action on redress measure. The paper subsequently presents the main principles of the unsuccessful Proposal for Collective Proceedings Act, which was submitted by the former Government. Finally, the article elaborates on possible development in this matter, given a duty of the Czech legislator to implement Directive on representative actions. [ABSTRACT FROM AUTHOR]

The present article aims to analyze the multiple forms of participation in the judgment of test cases, understood as a kind of collective process, alongside class actions. For this, fundamental concepts of collective processes are used, such as the notions of group, group member and conductor of the process, which will serve as a starting point for the analysis of the legislative catalog. Throughout the text, dynamic and atypical means of intervention are proposed as a way of circumventing the problem of participatory deficit. On the other hand, in order to avoid undue procedural delay, it is proposed to assign interventional legitimation ad actum, based on the circumstances of the specific case.

This article constitutes a continuation of the research conducted so far in the domain of collective consumer redress in the European Union. The aim of the article is to discuss the issue of various legal mechanisms functioning in the selected EU Member States that serve consumers as a means of collective redress. In the first part of this paper, it was presented that the models of consumer protection vary significantly in the individual Member States. After having scrutinized some terminological remarks regarding consumer law enforcement, the main analysis focuses on the legal solutions adopted in Belgium. In the second part of the discussion, the author presents relevant legal solutions adopted in the UK and the Netherlands. Specifically, the author discusses the various approaches to the issues fitting in the dichotomic scheme, that is, the so-called opt-out and opt-in mechanisms. Special consideration is devoted to the issue of admissibility of collective redress and legal standing to bring collective actions. The paper employs dogmatic and analytical methods for the process of interpretation of the normative material and the analysis of case law. The study uses the comparative perspective to identify solutions emerging from effective practices found in legal systems of the EU Member States. The findings emerging from the analysis show how significantly the Dutch and English systems of collective redress vary. The article also provides some tentative conclusions that would make it possible to decide which legal solutions operating with success in those jurisdictions could be adopted into Polish law.

Copyright of Godišnjak Pravnog Fakulteta u Sarajevu is the property of Godisnjak Pravnog Fakulteta u Sarajevu and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Some jurists believe that the judicial process is not adequate for these lawsuits when they are transnational, but in fact, neither is it when they are national. It is true that a transnational claim is challenging in terms of applicable law, the search for national lawyers, the search of evidence and even the translations. But actually all inconveniences are based upon a very old mentality linked with the also very old ‘de minimis non curat praetor’. Whoever thinks that dealing with transnational small claims is not really feasible, does not see how to deal with them adequately in domestic law either. These authors also think that the resolution of small claims should be transferred to mediation –often useless–, to consumer arbitration, whose institutional development as parallel to state justice is extremely complicated, or even to collective redress, although in the vast majority of cases there is not really a group of stakeholders that can be managed together. Furthermore, organizing this kind of collective redress is very difficult. It’s maybe necessary to remember that class-actions in the US almost never reach the trial phase.

Virtually all major jurisdictions worldwide, including those in Europe, have been facing constrained budgets in civil justice and increasing litigation volume, delays, complexity and costs in the last few decades. This makes it difficult, or impossible, for certain individuals and entities to pursue meritorious claims, be it individually or collectively, posing a significant challenge to access to justice. With third-party funding (TPF) of litigation frequently touted as a promising private funding solution to this problem, this article explores the question of how and why the proliferation of TPF has been viewed with a considerable degree of caution in Europe, and questions to what extent this caution is warranted. The scale of the civil justice crisis in Europe, the shift from public to private funding and the purported benefits of TPF are first briefly investigated. The article then proceeds to critically examine, including from a law-and-economics perspective, the main sources of concern leading to the scepticism shown towards TPF in Europe, which is still largely unregulated. These sources are the commodification of justice, conflicts of interest and funder capital inadequacy. Particular reference is made to the regulatory frameworks of the jurisdictions of England and Wales, the Netherlands and Germany in Europe, and at the European Union level, to the Representative Actions Directive. It concludes by restating the potential benefits and complexity of this industry and the importance of distinguishing and analysing the arguments most commonly raised against it in the literature, policy and jurisprudence. [ABSTRACT FROM AUTHOR]

This is a descriptive-evolutive, dogmatic and comparative study on the collective processes of the European Union (EU). On November 25th, 2020, the Union adopted one of its most awaited legal instruments: the first legislation, that is supposed to create a European collective action mechanism for monetary relief. According to Directive 2020/1828 on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC, member States have to adopt the transposing measures by December 25th, 2021, and give effect to them on and apply them to representative actions that are brought on or after June 25th, 2023. The European movement for collective litigation started approximately three decades ago. It earned official European recognition in competition law in 2005, owing to the European Commission's Green Paper on Damages Actions for Breach of the EC Antitrust Rules, followed by the White Paper of the same title in 2008. From 2013 to the emission of the recent 2020 directive, the particularity of community collective redress and inhibitory guardianship has proven to be holistic, unlike the US class action model. This paper analyzes the three pillars of the European vision on collective redress seeking, namely: a) the extrajudicial alternative dispute resolution mechanisms, b) the regulatory and public policy mechanisms, and c) the collective processes or litigation. The interplay of these three pillars makes the European Union's view on the matter singular as it proposes a system of incentives, prudence and safeguards. [ABSTRACT FROM AUTHOR]

This paper deals with the Incident of Resolution of Repetitive Claims in the Brazilian order and the Group Litigation Order (GLO) in the British order as mechanisms for collective redress. Although the inspiration for the Incident of Resolution of Repetitive Claims was the German Musterverfahren, the analysis of the context in which the Brazilian and British instruments were created, as well as the admissibility requirements of each instrument, can contribute to improve collective redress.

The question of effective enforcement of consumer rights has been widely discussed for many years in the European Union. The models of consumer protection significantly vary in the individual Member States. Typically, consumers can claim their rights both at an individual and collective level. The systems of enforcement of consumer protection are either public, private or mixed, where both types of enforcement function in a parallel way. The goal of the paper is to discuss the issue of various legal mechanisms that function in the Member States, serving the consumers as a means of collective redress. The main analysis focuses on the legal solutions adopted in Belgium (first part of the paper), UK and the Netherlands (second part of the paper). In particular, the author presents the complementary character of the public and private mechanisms used to enforce the consumer rights. The paper utilises dogmatic and analytical methods for the process of interpretation of the normative material and for the analysis of case law. The study uses the comparative perspective to identify solutions emerging from effective practices found in legal systems of the Member States. The paper proposes several legal solutions to adopt in the Polish law. The findings emerging from the analysis show that both competent consumer organisations commencing group proceedings and experienced judges who choose between opt-in and opt-out systems are vital in the process of effective enforcement of consumer rights. The conclusions from the study are useful in mapping out the legislative process and the analysis discussed in the paper may be extended to legal systems of other Member States.

In April 2018, the European Commission introduced a long awaited Proposal for a Directive on represented actions, which aims to modernize the existing European collective redress system. The aim of this paper is to answer the question whether the solutions put forward in this Proposal will improve the landscape of collective redress in the EU. For this purpose, I analyse the existing model of collective consumer redress in the EU, as set forth by Directive 98/27/EC, Directive 2009/22/EC and Recommendation 2013/396/EU; I also evaluate it from the perspective of its functionality with special consideration of key problematic issues. Against this background, I present the legal provisions put forward in the Proposal for a Directive on representative actions. The comparison of both legal structures makes it possible to give an answer to the question whether the proposed legislation can remedy the existing problems of the collective redress system and, thus, to answer the question whether it will contribute to strengthening the mechanism for the protection of collective consumer interests in the EU.

This article examines the extent to which the European Small Claims Procedure (ESCP) has served the main purpose of the EU legislature to establish a legal framework to improve access to justice for creditors of cross-border small claims through a simplified, expedited and inexpensive redress mechanism. This article first analyses the implementation of the ESCP in Italy and Belgium. These two countries were chosen because of the authors' research on the Small Claims Analysis Net (SCAN) Project (The SCAN Project was initiated in 2018 as a two-year project with the fundamental aim of evaluating the efficiency of the European Small Claims Procedure within several EU Member States (France, Belgium, Italy, Slovenia, and Lithuania), besides raising awareness of this procedure among consumers and other judicial stakeholders. For the conducted activities as part of the SCAN project, see accessed on 24 February 2021). The second part of this article deals with the impact of this regulatory instrument on access to justice for citizens, in view of the principle of judicial efficiency. Finally, this article focuses on the possibility of using this instrument for collective redress, on the one hand, and linking this procedure to online dispute resolution, on the other. [ABSTRACT FROM AUTHOR]

The EU Antitrust Damages Actions Directive does not include provisions for collective redress. Each EU member state is free to provide national regulation on this matter. The Portuguese legal system provided regulation on actio popularis since 1995. The ‘rational apathy’ of individual consumers may lead to non-reparation of damage and be of significant benefit for the company that is in breach of the law.The opt-out models solve the crucial economic problem caused by a large number of consumers or clients who have suffered a small loss because of competition law infringements. Under those circumstances, it is rational to be apathetic, because it can be foreseen that the cost of filing for compensatory damages will exceed the recovery obtained from the defendant. Such rational apathy of the parties injured by competition law infringements favours the wrongfully acting companies by not extracting their illegal gains from them. By not requiring the active consent of each of the claimants, the opt-out model is able to override rational apathy of consumers

Copyright of Espaço Jurídico: Journal of Law is the property of Espaco Juridico: Journal of Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista de Derecho Politico is the property of Editorial UNED and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article constitutes a continuation of the research conducted so far in the domain of collective consumer redress in the European Union. The aim of the article is to discuss the issue of various legal mechanisms functioning in the selected EU Member States that serve consumers as a means of collective redress. In the first part of this paper, it was presented that the models of consumer protection vary significantly in the individual Member States. After having scrutinized some terminological remarks regarding consumer law enforcement, the main analysis focuses on the legal solutions adopted in Belgium. In the second part of the discussion, the author presents relevant legal solutions adopted in the UK and the Netherlands. Specifically, the author discusses the various approaches to the issues fitting in the dichotomic scheme, that is, the so-called opt-out and opt-in mechanisms. Special consideration is devoted to the issue of admissibility of collective redress and legal standing to bring collective actions. The paper employs dogmatic and analytical methods for the process of interpretation of the normative material and the analysis of case law. The study uses the comparative perspective to identify solutions emerging from effective practices found in legal systems of the EU Member States. The findings emerging from the analysis show how significantly the Dutch and English systems of collective redress vary. The article also provides some tentative conclusions that would make it possible to decide which legal solutions operating with success in those jurisdictions could be adopted into Polish law. [ABSTRACT FROM AUTHOR]

By transposing the Directive on representative actions for the protection of the collective interests of consumers by the 25th December 2022, all the Member States will be endowed with at least one form of collective redress. This paper analyses the Directive’s provisions that entail the need to introduce reforms in the French group action regime, as well as those outlined in the European text as recommendations that may constitute an opportunity to change the French state of affairs.

On 25 November 2020, the EU adopted the Directive on Representative Actions. This long-awaited legal instrument is the first to create a binding European-wide collective action mechanism for monetary relief. Notwithstanding that it was supposed to crown three decades of intellectual efforts, the Directive failed to establish a workable system going beyond traditionalist fundamentalism. The Directive takes a markedly minimalist approach and its only added value is that some collective mechanism, however ineffective and low-key, should be available in every Member State. This paper provides an analytical overview of the Directive in light of the pertinent European debate. Section 2 provides a general presentation and assessment of the Directive’s scope and nature and the issues it fails to address. The rest of the sections deals with the Directive’s different regulatory chapters. Section 3 deals with the rules on standing and qualified entities. Section 4 addresses the Directive’s provisions on opt-in and opt-out. Section 5 presents the safeguards the Directive sets up against abusive litigation. Section 6 contains the paper’s conclusions and defines the incremental value generated by the Directive (it takes stock of those elements that may represent an added value in comparison to the pre-Directive regulatory situation).

For over half a century, it has been axiomatic that environmental claims are particularly well suited for class actions. This paper examines this notion in the context of Ontario's regime and finds that environmental class actions have been limited in the extent to which they have promoted access to justice. Starting with a brief overview of class action history in Canada and the economics of mass litigation at a general level, the paper then analyzes barriers specific to environmental claims. A series of representative case studies is then offered to substantiate the central contention on the limits of environmental class actions. In so doing, the paper takes a holistic approach, incorporating empirical, economic, political, and procedural factors and dynamics to provide an integrated assessment about the type of access to justice that is presently achieved and achievable for environmental claims in Ontario. [ABSTRACT FROM AUTHOR]

This Article attempts to outline the optimal implementation of collective redress by using a comparative approach. After exploring the weaknesses of individual actions, which should be avoided, this Article presents the main forms of collective redress that exist in the various states. In particular, these forms include: Group action, representative action, and group settlement. The comparison of the various legal orders demonstrates the existence of several important parameters that need to be evaluated in order to design appropriate legislation. As a result, this Article supports alignment with the American class action and proposes specific modifications in order to eliminate several disadvantages of the original model. [ABSTRACT FROM AUTHOR]

Collective redress for compensation, also known as a group action or a class action, reunites consumers who have suffered the same or very similar loss or harm caused by the same trader. They come in court as a group and seek redress, in one legal claim. Alternative dispute resolution it’s a collective term for the ways that parties can settle a dispute by means of extrajudicial mechanisms with (or without) the help of a third party. Even if these two notions of „collective redress” and „ADR”, at first sight, apparently have little in common, these two topics have become closely related in disputes regarding consumers who have had their rights violated by traders. Even if judicial collective redress procedures cannot be replaced by Alternative Dispute Resolution (ADR) or amicable settlements, we must put aside the assumption that the courts offer the only technique that can deliver redress or that is not possible an amicable settlement procedure for mass claims. Parties in dispute should remain free to recourse to alternative means of dispute resolution before or in parallel to the formal introduction of the judicial claim, taking into account all available options. This study examines the different mechanisms available to consumers to resolve disputes, from private complaints handling to ADR and class actions. This paper aims to analyses the advantages and disadvantages of different approaches to dispute resolution and redress mechanisms, the limits of the out of court settlements and the current situation in the EU Member States, and the cross-border cases and solutions. It also approachesthe enhance and the interconnection of the existing national ADR systems in creation of a powerful unified pan-EU mechanism, provided by Directive 2013/11/EU of the European Parliament and of the council on alternative dispute resolution for consumer disputes.

The paper deals with collective protection of consumer rights from the European and Czech point of view. The attention is focused on the question of the concept of legal standing to bring a collective actions (i.e. locus standi) The article compares the legal regulation of legal standing to bring a collective action in the Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union law (2013/396/EU), in the proposal a new Directive of the European Parliament and of the Council on representative actions for the protection of the collective interests of consumers [COM/2018/184 final-2018/0089 (COD)] and the Czech bill for the Collective Redress Act. [ABSTRACT FROM AUTHOR]

On 11 June 2013, the Commission issued the Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning the violations of rights granted under Union law. The main areas where private enforcement of rights granted under Union law in the form of collective redress is of value are consumer protection, competition, environment protection, protection of personal data, financial services legislation and protection of investments. Point 13 of the Recommendation concurrently emphasises that the principles it puts forward relate both to judicial and out-of-court collective redress. The Member States should ensure that judicial collective redress mechanisms are accompanied by appropriate means of collective alternative dispute resolution available to the parties before and throughout the litigation. Point 25 et seq. of the Recommendation then contains special regulations concerning collective alternative dispute resolution and settlements. The purpose of this article is to evaluate if the current legislation on alternative dispute resolution in the Czech Republic meets the principles encompassed in the Recommendation or if radical legal changes need to be adopted.

Copyright of Yearbook of Antitrust & Regulatory Studies is the property of University of Warsaw and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista Kavilando is the property of Kavilando and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

After many years of debate on collective redress, the European Commission has proposed to introduce a representative mechanism to be controlled by public bodies and consumer associations that satisfy certain criteria. However, the Commission has only considered a single mechanism (the litigation-based class or representative action), which is in fact "old technology." There are several other mechanisms that deliver collective redress—new technologies. The first is the partie civile mechanism in which a civil claim "piggy backs" onto a criminal conviction. The most important mechanisms are "regulatory redress"—where a regulatory authority intervenes and agrees or orders redress to be paid—especially if coupled with an ombudsman scheme (not arbitration-based alternative dispute resolution (ADR) schemes). The regulatory redress mechanism was proposed by the Commission in the revised Consumer Protection Cooperation (CPC) Regulation but what emerged was not ideal. All these mechanisms have recently been evaluated against criteria such as their speed, cost, and ability to deliver effective outcomes. The empirical data clearly demonstrate that the new technologies are better than the old technologies. The new technologies also deliver more functions than the old: not just resolution of a dispute or delivery of redress but also assistance to consumers and traders and the ability to aggregate data on trading issues that is fed back to improve compliance, behaviour, and performance in the market place. This evidence leads to the conclusion that the Commission's proposals are unlikely to deliver effective collective redress for consumers. The proposed method is out of date technology, and other mechanisms are clearly preferable and should be adopted instead. Member States are permitted to maintain existing collective redress mechanisms. That will lead to considerable confusion and diversity, which does not support an integrated single market. Further, the proposal will lead to a diversity of available mechanisms between Member States and hence confusion and competition between intermediaries—forum shopping. The way forward is for the EU to adopt regulatory redress and consumer ombudsmen, rather than the old fashioned litigation model. The analysis also reveals that the Impact Assessment system has flaws. [ABSTRACT FROM AUTHOR]

Collective redress is currently the most common way to start proceedings involving a plurality of plaintiffs who suffered damages in the same event. When plaintiffs are located in a unique state, legal issues remain manageable. Difficulties arise when different states are involved. In light of the growth of international trade in the last few years, as well as the characteristics of the European Single Market policies, it has to be determined whether European laws are capable of responding to these situations, especially when its own citizens are affected. Additionally, the present paper analyses if victims have any other procedural alternative, focusing on the consumer law field. [ABSTRACT FROM AUTHOR]

The recent initiative of the European Commission (hereinafter: EC) to empower consumer organisations to seek compensation on behalf of a group of consumers that have been harmed by an illegal commercial practice by way of introducing a Proposal of a Directive on representative actions for the protection of the collective interests of consumers and repealing the Injunctions Directive 2009/22/EC (hereinafter: the Directive Proposal), if successful, should mark a new era of collective redress at EU level. In the light of these developments, the paper will first present the background of the Proposal, the present state of EU collective redress mechanisms. It will focus on current issues, such as cross-border collective redress litigation in the context of Brussels I (Recast) Regulation. Namely, after the 'Dieselgate' scandal providing for efficient cross-border collective redress mechanisms at EU level has been recognized as one of the main regulatory challenges. Although at this point the outcome of the EC's initiative is uncertain, the central part of the paper will evaluate the crucial aspects of the Proposal. The conclusion will address key findings and emphasize possible effects of the proposed changes on the future redress opportunities for EU consumers. [ABSTRACT FROM AUTHOR]

The following article focuses on the issue of private enforcement of competition law as one of the key elements of the current European and national debate on the efficiency of competition law. By analyzing this concept, the article aims to determine the influence of the European private enforcement model on the national competition law enforcement practice. The goal of the analysis is to answer two main questions: 1) Does the current convergence of the national competition law enforcement system towards the European model guarantee the establishment of an effective, public-private system of antitrust enforcement? 2) Under which conditions may the development of private methods of antitrust enforcement lead to an increase in the efficiency of Polish and European competition law? In order to address these questions, the article analyses the development of the private enforcement doctrine in the European Union and Poland. It refers to European and Polish jurisprudence on private enforcement, the competition policy of the European Commission as well as of the Polish competition authority – the UOKiK President. It also covers recent legislative changes introduced in the European and national legal orders. The analysis leads to the conclusion that the current convergence of the national antirust system towards the European model did not lead to the establishment of an effective mechanism of private enforcement in Poland. Nevertheless, the assessment of recent changes at the European level gives grounds to assume that the adoption of the Directive on Damages Actions, and its transposition into the national legal order, might overcome this problem and allow for better protection of individuals against anti-competitive behaviors.

On 17 April 2014, the Proposal for a Directive on antitrust damages actions was accepted by the European Parliament and sent to the EU Council of Ministers for final approval. In addition, a Recommendation was adopted in 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States to meet the need for a coherent European approach to antitrust private enforcement. This package comes at a time when private antitrust enforcement is rapidly evolving in a number of Member States. At the same time however, it establishes several legal solutions that do not fit well with existing national instruments. The aim of this article is to address, in particular, Portuguese and Polish experiences on a number of specific issues surrounding antitrust private enforcement, such as collective redress and contingency fees. Some doubts will also be raised concerning the solutions established in the European package, suggesting that national experiences should not be overlooked.

This article investigates important shifts in the way that rights are enforced in the EU. On the one hand, the Commission is increasingly withdrawing from centralised rights enforcement, initiating less and less infringement proceedings and shifting the bulk of its work towards more informal compliance management tools. At the same time, private, de-centralised rights enforcement is becoming more prominent, at least as measured by the amount of preliminary references submitted to the CJEU. The Commission actively supports this trend, and in effect outsources its own enforcement work to private actors, both individual and collective. The article outlines Commission efforts to facilitate private enforcement and discusses whether private enforcement can substitute for centralised enforcement. It concludes that all channels of rights enforcement have a role to play, and the loss of any single channel cannot easily be compensated. [ABSTRACT FROM AUTHOR]

The black communities in Colombia, mainly those settled in the Department of Chocó, suffer serious violations of their human rights, both individually and collectively, due to the internal armed conflict. These communities have been uprooted from their territories which are used by the different armed actors for illicit cultivation and illegal mining. The present investigation is characterized by being descriptive, qualitative and having a documentary design. It describes the progress made in the process of collective redress for victims of black communities in the department of Chocó, the background and motives that gave origin to said process. It was evidenced, first, that the processes of elaboration and agreement of Law 1448 of 2011 and Decree Law 4635 of 2011, were made without observing the fundamental right to free and informed prior consultation; secondly, that the few advances that have been made to the process of collective redress for black communities in Chocó is mainly due to the lack of political will. [ABSTRACT FROM AUTHOR]

Collective protection of consumer interests is a relatively new institut in consumer protection in Europe. The protection procedure started with the adoption of specific European Parliament and Council Directives, and the Recommendation of the Commission of the European Union. In some European national legislation, collective protection is regulated by the Consumer Protection Act, but it is also offered by adopting the special provisions in existing civil procedural laws regarding the protection of collective rights and interests. The expansion of the concept of collective protection has come under the great influence of the institute of class actions, which has its roots upon American legal system. The collective protection offers different types of redress, which do not envisage the same protection content. First subtype of collective redress is an injunctive collective redress, a legal mechanism that ensures possibility to claim cessation of legal behaviour collectively by two or more natural or legal persons or an entity eniteled to bring a representative action. Second subtype of collective redress is a compensatory collective redress, which is a legal mechanism that ensures a possibility to claim compensation collectively by two or more natural or legal person or by an entity entiteled to bring a representative action. In both cases, the entiteled entities that can bring a representative are established by law, and those are the subjects that within their registered or regulated activity, deal with the protection of established collective rights and interests (in Bosnia and Herzegovina those are: Consumer Protection Associations, Ombudsman for the protection of consumers, competent authorities of the Entities, etc.). Protection of the collective interests is essentially based on the protection of the collective interests of certain protected groups. Collective protection can occur in different areas, from the field of environmental protection, protection from discrimination, areas of protection of competition law, to the field of collective protection of consumers, all depending on the protected collective interest. [ABSTRACT FROM AUTHOR]

At this moment there are strong signals that is a need for pursuing a solution for European consumers - by way of EU legislation - regarding a mechanism of collective redress of the mass harm produced to EU spread consumers. This study examines the different mechanisms available to consumers to resolve disputes, from private complaints handling to ADR and class actions. This paper aims to analyses the advantages and disadvantages of different approaches to dispute resolution and redress mechanisms, the limits of the out of court settlements and the current situation in the EU Member States, and the cross-border cases and solutions. It also approaches the enhance and the interconnection of the existing national ADR systems in creation of a powerful unified pan- EU mechanism, provided by Directive 2013/11/EU of the European Parliament and of the council on alternative dispute resolution for consumer disputes. At this moment there are strong signals that is a need for pursuing a solution for European consumers - by way of EU legislation - regarding a mechanism of collective redress of the mass harm produced to EU spread consumers. [ABSTRACT FROM AUTHOR]

In early 2018, the tortuous process towards the establishment of a framework for collective redress at the EU level reached new milestones. In January, the European Commission published its long-awaited report assessing the practical implementation of the 2013 Recommendation. As many had predicted, the Recommendation has failed to secure a consistent and coherent framework for collective redress in the EU and national legal landscapes remain highly fragmented. In April, the Commission presented new measures supporting collective redress for consumers in the context of its ‘New deal for consumers’. In particular, a new draft Directive intends to maximise the potential of injunctions orders to facilitate redress in mass harm situations. The question is now whether the proposed instrument is likely to successfully put an end to the collective redress conundrum and to provide an effective tool for resolving mass claims in the EU. [ABSTRACT FROM AUTHOR]

It is common nowadays for a person to suffer an injury as a result of a widespread illegal practice by a particular entity. Individual redress mechanisms prove to be insufficient. It is therefore crucial to provide a suitable way for an injured party to achieve remedy. Collective litigation serves this exact purpose. This article defines opt-in and opt-out systems of collective redress, asseses their strengths and weaknesses and offers possible solutions. The author does not omit two related topics: time limits for opt-in and opt-out, and notice of initiation of the proceeding. The article also contains a comparative study of Danish, Norwegian, Dutch, Portuguese, British and Belgian systems as representatives of opt-out systems. Lastly, the article also describes the current state in the Czech Republic, where a debate is currently taking place over the possible form of collective redress. The aim of this article is to provide a complex view of pros and cons of the opt-out system of group proceedings and to show that the opt-out system can be functional and suitable for collective redress. [ABSTRACT FROM AUTHOR]

In recent years there have been a number of cases of mass harm in Ireland, including contaminated blood products, army deafness, asbestos-related ill health, Pyrite damage, the Volkswagen emissions scandal and the recent tracker mortgage rate abuse by banks. It is natural that victims of such mass harm might seek a legal remedy through the courts. Ireland, however, is a common law jurisdiction that does not yet have an effective mechanism for multi-party litigation of mass harm. This is despite recommendations in 2005 by the Irish Law Reform Commission (LRC), 1 Ireland's principal public body for the investigation of law reform, for the introduction of a new litigation procedure in the form of a multi-party action (MPA). 2 Instead, occasionally the courts use a confusing array of alternative methods in cases where an MPA mechanism would have had an obvious role. This paper explores the phenomenon of mass harm and the role multi-party actions as a potential route to redress for such harm. It gives an overview of the current Irish mechanisms for dealing with mass harm and is illustrated by a number of cases exemplifying the problems associated with mass harm litigation. The implications that these difficulties entail for access to justice in Ireland are evaluated and the practical aspects of this procedural lacuna are illustrated. These are explored in light of the LRC Report on multi-party litigations and its recommendations. Finally, there is an examination of what may potentially lie ahead for multi-party litigation having regard to ongoing developments in other jurisdictions and European Union initiatives, together with the implications of the Aarhus Convention and related aspects of human rights. The paper concludes that optimum way of achieving collective redress requires a modern holistic approach. This requires an integrated model comprising a combination of tools from a range of solutions including regulation, ADR, courts, ombudsmen, and new techniques of collective redress. It would appear that MPA litigation is necessary as a remedy of last resort to deal with mass harm where other techniques fail to deliver collective redress and where there is therefore no alternative to the courts. [ABSTRACT FROM AUTHOR]

W artykule zaprezentowano Zalecenie Komisji dotyczące zbiorowego dochodzenia roszczeń przyjęte 11.06.2013 r. i ogłoszone w Dzienniku Urzędowym Unii Europejskiej 26.07.2013 r. Autorka podejmuje próbę wskazania potencjalnych trudności, jakie może napotkać polski ustawodawca w przypadku implementacji Zalecenia do polskiego systemu prawnego. W szczególności poruszane są kwestie dostosowania polskich przepisów prawa do zasad wynikających z Zalecenia w zakresie podstawowych pojęć, czynnej legitymacji procesowej i dopuszczalności powództw, a także finansowania powództw.