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In 2017, the Collective Actions Act introduced a new type of lawsuit – the collective action – into the Slovenian legal order. A collective action can be lodged in cases of instances of so-called ‘mass harm’, including mass violations of workers’ rights. This could improve the effectiveness of enforcement of workers’ rights in practice. Instead of a number of individual labour disputes concerning the same or similar violations of workers’ rights, a collective action can be lodged by trade unions or other representative collective actors in this field. Both opt-in and opt-out approaches are possible and the decision on this is left to the discretion of the court. Despite many positive aspects, only one collective action in the area of labour rights has been lodged to date. In this contribution I analyse legal regulation of the existing collective redress mechanism and possible reasons for deficiencies discerned in its functioning in practice.

This article provides an analysis of the Directive on representative actions for the protection of the collective interests of consumers of 25 November 2020. The Directive enables qualified entities to bring representative actions on behalf of the consumer. The article uses a Law and Economics approach to stress the advantages of collective actions as a tool to remedy rational apathy and free-rider behaviour. The article therefore in principle welcomes the fact that this Directive will lead to all Member States having some form of collective redress. However, it is rather difficult to fit this Directive into the economic criteria for centralization as there is no obvious danger of cross-border externalities or a race-to-the-bottom. The article is critical of the fact that the Directive only provides for a representative action and does not mention the alternative of a group action (sometimes referred to as a class action). This is especially problematic if there are very few qualified entities that could bring the representative action. Furthermore, the fact that Member States may choose an opt-in procedure instead of an opt-out procedure is critically evaluated. The most problematic aspect of the Directive is the funding of the representative action. Punitive damages and contingency fees are rejected, and the possibility of third-party funding is restricted. It is therefore to be feared that this Directive, notwithstanding the good intentions, may not lead to much application in practice, since the question of how the representative action is to be financed is not resolved in any satisfactory manner.

Article 80 on collective redress in the GDPR contains some of the famous circa 50 derogations that have diluted the degree of harmonisation in this EU main data protection instrument in force since May 2018. The provisions on collective action available in this framework law were not transcribed in a straightforward manner into the lex specialis to the GDPR - the proposal for the reformed e-Privacy Directive (redesigned as an e-Privacy Regulation) - and have required the co-legislators’ intervention to make them more explicit. The efforts required to bring collective redress dimension into the enforcement of the rights to privacy and data protection in the EU can be better understood if discussed in the context of the overall development of this type of remedy here. The process has been fragmented whilst a binding horizontal EU-wide measure is yet to be stipulated. In the meantime, as showcased by the recent CJEU decision in Schrems v Facebook, there are important and urgent questions such as the cross-border element that need to be answered both in terms of the real exercise of access to justice in enacting data protection as well as for consumer rights more broadly. The provisions on collective redress in the new EU data protection legislation have been bold steps in strengthening fundamental rights, but their real impact will depend on other processes developing in parallel, such as the national collective redress schemes, the horizontal EU-level instruments and the case law of the CJEU and national courts.

The development of collective redress in practice depends on the availability of adequate funding. In recent years third-party funding by entrepreneurial parties has become an important source of financing collective actions and settlements. Both at the EU level and in most of the Member States third-party litigation funding and related forms of entrepreneurial lawyering have generally been viewed with suspicion, though the new Representative Actions Directive (RAD) does enable third-party funding under certain conditions. The Netherlands is perhaps the Member State best known for its collective redress mechanisms, and the role of third-party funding has been important for its development. This paper discusses the financing of collective redress from a European and Dutch perspective. It assesses in how far EU law, and in particular the RAD, enables the third-party funding and how this has developed in the Netherlands. It concludes that the reluctance in Europe towards third-party funding is still visible, but the RAD and recent developments in the EU acknowledge its importance. As to the Netherlands, considering some restrictions in the latest legislative addition enabling collective action damage claims, it remains to be seen what role Dutch collective redress and developing funding mechanisms will play in Europe and beyond.

Class-wide settlements of claims can be considered as one of the effective solutions for solving collective action problems in litigation on the one hand and maintaining court effectiveness for managing a large number of similar individual claims on the other hand. Since the late twentieth century, the Dutch legal system offers three collective redress mechanisms that can be attractive for resolving (international) mass claims disputes. Those procedures provide in exceptions of the general rule that no one has an action without an individual interest.

The Netherlands is internationally known for its collective settlement mechanism that was introduced in 2005. In a small number of cases with a global outreach this settlement regime has proven to be effective. However, its application relies on the willingness to conclude a settlement agreement and to have it declared binding by the court. A collective action regime had been in place for decades, but was limited to injunctive and declaratory relief. After years of discussion the collective redress system was ‘upgraded’ by introducing a collective action procedure for damages in 2020. While the intention behind this latest addition can be welcomed as an effective collective action system in this regard was lacking, some of its features are also subject to criticism and have raised doubts as to whether the new Act is an improvement. That is especially the case with respect to actions filed for declaratory and injunctive relief by so called ‘ideological claimants’. Another crucial aspect for the effectiveness of collective redress mechanisms in general, but particularly with respect to monetary relief, is the availability of funding. The different modes of financing litigation, are the topic of extensive debate. In particular third-party funding as a solution to enable expensive collective actions to take place, has gained critical attention in Europe, even though it may prove to be the only available or viable funding option in the international context. This chapter discusses developments in collective redress in the Netherlands with a focus on the issue of funding and on the position of the Netherlands collective redress regime in the European and international context. It concludes that if the Netherlands is to continue to hold its predominant position in Europe in relation to collective redress, that will not be because of the new law, but because of the creativity of lawyers, the pragmatism of the Dutch courts and the willingness of funders to rely on both.

The Netherlands is internationally known for its collective settlement mechanism that was introduced in 2005. In a small number of cases with a global outreach this settlement regime has proven to be effective. However, its application relies on the willingness to conclude a settlement agreement and to have it de-clared binding by the court. A collective action regime had been in place for decades, but was limited to injunctive and declaratory relief. After years of discussion the collective redress system was ‘upgraded’ by introducing a collective action procedure for damages in 2020. While the intention behind this latest addi-tion can be welcomed as an effective collective action system in this regard was lacking, some of its fea-tures are also subject to criticism and have raised doubts as to whether the new Act is an improvement. That is especially the case with respect to actions filed for declaratory and injunctive relief by so called ‘ideological claimants’. Another crucial aspect for the effectiveness of collective redress mechanisms in general, but particularly with respect to monetary relief, is the availability of funding. The different modes of financing litigation, are the topic of extensive debate. In particular third-party funding as a solution to enable expensive collective actions to take place, has gained critical attention in Europe, even though it may prove to be the only available or viable funding option in the international context. This chapter dis-cusses developments in collective redress in the Netherlands with a focus on the issue of funding and on the position of the Netherlands collective redress regime in the European and international context. It con-cludes that if the Netherlands is to continue to hold its predominant position in Europe in relation to col-lective redress, that will not be because of the new law, but because of the creativity of lawyers, the prag-matism of the Dutch courts and the willingness of funders to rely on both.

Vprašanje kolektivnih pravnih sredstev v Evropski uniji je v zadnjih letih zaradi pobud evropskih institucij pridobilo veliko pozornosti. V praksi se ja namreč pokazalo, da je intervencija Evropske unije na tem področju potrebna, saj se instituti kolektivne tožbe v državah članicah zelo razlikujejo. Razlikujejo se po vrsti kolektivne tožbe, ki je na voljo, aktivni legitimaciji, uporabi sistema vključitve ali izključitve, financiranja tožbe itd. Heterogenost na tem področju je problematična, saj niso vsi državljani držav članic Evropske unije deležni enake pravne zaščite v primerih množičnih oškodovanj. Različne ureditve držav članic pa imajo tudi negativni vpliv na enotni notranji trg. V nalogi sem analizirala izbrane postopke s kolektivnimi tožbami v državah članicah Evropske unije in osvetlila razlike med njimi. Ugotovila sem, da je ukrepanje organov Evropske unije potrebno, da se zagotovi ustrezno urejene in uravnotežene mehanizme, ki prispevajo k učinkoviti zaščiti in izvrševanju pravic v primerih množičnih oškodovanj. The issue of collective redress procedures in the European Union has received a great deal of attention in recent years due to initiatives by the European Union institutions. In practice, however, it has become clear that the European Union intervention in this area is necessary, as institutes of collective redress vary greatly from one-Member State to another. They differ in type of collective action available, legal standing, use of an opt-in or an opt-out system, financing of the action, and so on. Heterogeneity in this area is problematic, as not all citizens of the Member States of the European Union enjoy equal legal protection in cases of mass harm. Moreover, different Member States arrangements also have a negative impact on the single internal market. In this thesis, I have analysed selected collective redress procedures in the Member States of the European Union and highlighted the differences between them. I have identified the need for actions by the European Union institutions to ensure that mechanisms are properly regulated and balanced to contribute to the effective protection and enforcement of rights in cases of mass harm.

The Netherlands is internationally known for its collective settlement mechanism that was introduced in 2005. In a small number of cases with a global outreach this settlement regime has proven to be effective. However, its application relies on the willingness to conclude a settlement agreement and to have it declared binding by the court. A collective action regime had been in place for decades, but was limited to injunctive and declaratory relief. After years of discussion the collective redress system was ‘upgraded’ by introducing a collective action procedure for damages in 2020. While the intention behind this latest addition can be welcomed as an effective collective action system in this regard was lacking, some of its features are also subject to criticism and have raised doubts as to whether the new Act is an improvement. That is especially the case with respect to actions filed for declaratory and injunctive relief by so called ‘ideological claimants’. Another crucial aspect for the effectiveness of collective redress mechanisms in general, but particularly with respect to monetary relief, is the availability of funding. The different modes of financing litigation, are the topic of extensive debate. In particular third-party funding as a solution to enable expensive collective actions to take place, has gained critical attention in Europe, even though it may prove to be the only available or viable funding option in the international context. This chapter dis-cusses developments in collective redress in the Netherlands with a focus on the issue of funding and on the position of the Netherlands collective redress regime in the European and international context. It concludes that if the Netherlands is to continue to hold its predominant position in Europe in relation to collective redress, that will not be because of the new law, but because of the creativity of lawyers, the pragmatism of the Dutch courts and the willingness of funders to rely on both.

The EU Collective Redress Recommendation has invited Member States to introduce collective redress mechanisms by July 26, 2015. The claim of the well-known reservations concerns the potentially abusive litigation and potential settlement of not well-founded claims resulting from controversial funding of cases by means of contingency fees and from “opt-out” class action procedures. The Article posits that apart from that claim, at bottom there may be some danger that the European Commission and private interest-groups may try to pursue the enforcement of their regulatory agendas in this way at the expense of individual claimants’ interests. However, in contrast to the situation in the United States, the need to complement regulatory enforcement by collective action may not appear as strong because of the relatively strict regulatory control and enforcement, which may explain EU Member States’ longstanding reluctance to adopt collective proceedings due to their concern for plaintiffs’ individual rights. Therefore, a comparative analysis is carried out to see to what extent individual rights as opposed to regulatory goals are taken into account in the different newly revised systems in place across Europe. As an interim result, the Dutch settlement procedure for mass damage claims, the English Group Litigation Order and the German test case procedure turn out to be relatively well-suited to dealing with mass damage claims. At the same time, none of them can quite reach an optimal balance between individual rights and regulatory goals and therefore each of them is subject to criticism. That is why the further question is raised as to how far these procedures could complement each other, thus contributing to the enforcement of individual rights without overregulating markets in Europe.

The EU Collective Redress Recommendation has invited Member States to introduce collective redress mechanisms by 26 July 2015. The well-known reservations claim potentially abusive litigation and potential settlement of not well-founded claims resulting from controversial funding of cases by means of contingency fees and from ‘opt-out’ class action procedures. The paper posits that there may also be some fear that the European Commission may try to pursue the enforcement of its regulatory agenda in this way at the expense of individual claimants’ interests. Therefore a comparative analysis is carried out to see to what extent concerns about individual rights as opposed to regulatory goals are reflected in the different newly revised systems in place across Europe. As an iterim result the Dutch settlement procedure for mass damage claims, the English Group Litigation Order and the German test case procedure turn out to be relatively well-suited to deal with mass damage claims. At the same time, none of them can quite reach an optimal balance between individual rights and regulatory goals and therefore each of them is subject to criticism. That is why the further question is raised in how far these procedures could complement each other, thus contributing to the enforcement of individual rights without overregulating markets in Europe.

Although under the Brussels Regulation it is not required to commence a procedure in order to have a judgment recognised and/or enforced in another Member States, the Regulation contains various grounds based on which the recognition and/or enforcement can be refused. These grounds relate to—among others—the correct service of the parties involved, the rules on public order in the Member States were recognition/enforcement is sought, and possible conflicts with other judgments or procedures in other states. A lot of parties are involved in a collective redress procedure and it depends on the type of mechanism whether and how the parties involved need to be served correctly. This chapter will set out whether a collective action judgment can be recognised and or enforced in another Member State based on the rules in the Brussels Regulation.

Various connecting factors can be used in order to confer jurisdiction to a certain court (e.g. the court parties choose in a choice of forum agreement, the domicile of the defendant, the Erfolgsort/Handlungsort, the place of performance of an obligation). In order to determine the competent court in a collective action procedure, these connecting factors must be put in perspective with the particularities of the collective action procedure (i.e. an interest group is a party to the procedure, rather than the actual plaintiff parties). This chapter sets out whether and how jurisdiction can be conferred to a certain court with respect to a collective action procedure. In addition, it is analysed whether the way jurisdiction can be conferred to a certain court is in line with the goals of both collective redress and the Brussels I-bis Regulation.

The European desire to ensure that bearers of EU rights are adequately compensated for any infringement of these rights, particularly in cases where the harm is widely diffused, and perhaps not even noticed by those affected by it, collides with another desire: to avoid the perceived excesses of an American-style system of class actions. The excesses of these American class actions are in European discourse presented as a sort of bogeyman, which is a source of irrational fear, often presented by parental or other authority figures. But when looked at critically, the bogeyman disappears. In this paper, I examine the European (and UK) proposals for collective action. I compare them to the American regime. The flaws and purported excesses of the American regime, I argue, are exaggerated. A close, objective examination of the American regime shows this. I conclude that it is not the mythical bogeyman of a US class action that is the barrier to effective collective redress; rather, the barriers to effective, wide-ranging group actions lie within European legal culture and traditions, particularly those mandating individual control over litigation.

Collective redress is a procedural mechanism that allows for reasons of procedural economy and efficiency of enforcement many similar legal claims to be combined into a single court action. Consumers and investors encounter problems with the enforcement of their rights through the individual redress, especially in times of the financial crisis. If a substantial number of harmed individuals decide not to pursue their, usually low, claims, the unduly gained profits of the opposite party can be extremely high. Thus, collective redress mechanisms can represent better option for consumers and investors, as their claims tend to be much less burdensome in case of the collective action. However, such mechanisms can trigger the abuse of the procedures, with the most commonly quoted threat being the example of American regulation of class actions. Negative characteristics of American model are the reasons that EU decided to shape its own concept of collective redress mechanisms. The binding act in this field in the EU is directive on injunctions for the protection of consumers’ interests; however, there is no binding act yet regarding compensatory actions. In June 2013, the European Commission published the Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law. It is not binding on Member States, however, it can serve as a guideline to improve their existing legislations, especially the regulation of collective compensatory actions. In so doing, consumers and investors might be given the possibility to use more efficient mechanism to compensate the harm suffered.

Following the decisions of the European Court of Justice in the Courage and Manfredi cases, victims of antitrust practices may seek redress before their national civil courts against the infringing businesses. In Spain, an empirical study on private enforcement of competition law collecting the cases brought before the Spanish courts from 1999 to 2012, it found that, despite the increase of antitrust private enforcement cases in this country in the last decade, only one out of 323 reported cases was brought by consumers. With this in mind, the dissertation aims to find out the reasons of the scarcity of consumer cases in the land of private antitrust enforcement in Spain, in order to palliate this situation. To this end, this dissertation surveys some of the most successful models in delivering redress across the world, such the US-style of class action or the Dutch Settlement-only opt-out mechanism for mass torts, as well as the proposals recently made in the UK, with the ultimate aim of learning the appropriate measures that can effective and efficiently deliver redress to consumers harmed as a result of anti-competitive practices. In the light of those successful modes, it is noted, argued and concluded that the debate has focused on encouraging group litigation rather than on articulating efficient mechanisms, such as ADR tools, to deliver redress with the involvement of the National Competition Authorities. Based on this premise, two proposals are made: redress schemes voluntarily implemented and certified by the Spanish Competition Authorities on a voluntary basis, and a Public Prosecutor-led collective action articulated on opt-out basis.

In recent years, the European Commission and various Member States, citing increasingly integrated markets and higher levels of cross-border activity within the European Union (“E.U.”), have called for the adoption of effective collective redress mechanisms for victims of violations of E.U. law. Although many Member States have already adopted collective action procedures under national law, these procedures have been ineffective in stimulating private enforcement of E.U. law and are often divergent in their approach to consolidating claims. E.U. lawmakers, after a lengthy period of investigation and study, have identified a set of guiding principles for the Member States to use in enacting new collective redress procedures within their national systems. The studies and papers solicited from the public during the Commission’s deliberations are explicit in their rejection of the U.S.-style opt-out class action mechanism. In their effort to avoid similarly calamitous results, European lawmakers propose that Member States adopt “opt-in” class actions, while rejecting many of the economic incentives that some believe lead to filing nonmeritorious claims, such as punitive damages and contingency fee arrangements. The European proposal is unlikely in the authors’ view to stimulate private enforcement of European law or increase victims’ access to compensation, given the flaws inherent in the opt-in class action device. Instead of looking to adopt a “U.S.-lite” approach to victim redress which is fundamentally incompatible with many judicial systems within the E.U., the authors propose that Europeans consider adopting a regulatory administered compensation system, modeled after such U.S. examples as the Securities and Exchange Commission Fair Funds and the September 11th Victim Compensation Fund. The authors also propose that regulatory administered funds can provide more effective and efficient restitution to victims than traditional litigation.

This paper examines the background to the UK Government’s plans announced this year to introduce opt out class actions in competition cases, the EU Parliament’s opposition to them on autonomy grounds, and the arguments put forward by corporate lobby groups and the academics funded by them against opt out class actions. The paper argues that far from being a restriction on autonomy, there are strong grounds for requiring mandatory class actions for the determination of common claims and defences. Procedures for determining common issues in the one proceeding are a crucial feature of any effective and proportionate system of collective redress. We sketch some ways of encouraging individual participation in class actions without undermining the benefits of collective action, including more democratic decision making in the management and settlement of class actions. Moreover, private class actions are a necessary complement to action by public regulators, ensuring that the task of securing redress for mass harms is not borne fully by taxpayers, and that victims can still obtain redress where regulation is not available or ineffective.

This paper focuses on the key choices of the recent Italian legislation on collective redress actions (azioni collettive risarcitorie). The rules provided for by Article 140-bis codice del consumo (Consumer Code) can be considered only a starting point of a modern regulation in this field (see Sects. 1, 2, 4). Indeed, Art. 140-bis shows several regulatory flaws (see Sect. 3 for the lack of special rules on financial support for collective actions, Sect. 8 for issues relating to the opt-in approach, Sect. 9 for the prerequisites concerning the admissibility of the collective action, Sect. 10 for the publicity of collective actions, Sect. 11 for the contents of the judgment), although it sets out some noteworthy key issues (see Sect. 5 for standing, Sect. 6 for the opt-in approach, Sect. 12 for collective settlement). The Italian legislation on collective redress actions in the field of consumer protection certainly requires some improvements (see Sect. 7 on a delege ferenda ‘dual system’). However, it can be considered a step forward in the right direction (see Sect. 13).

This paper focuses on the key choices of the recent Italian legislation on collective redress actions (azioni collettive risarcitorie). The rules provided for by Article 140-bis codice del consumo (Consumer Code) can be considered only a starting point of a modern regulation in this field (see Sects. 1, 2, 4). Indeed, Art. 140-bis shows several regulatory flaws (see Sect. 3 for the lack of special rules on financial support for collective actions, Sect. 8 for issues relating to the opt-in approach, Sect. 9 for the prerequisites concerning the admissibility of the collective action, Sect. 10 for the publicity of collective actions, Sect. 11 for the contents of the judgment), although it sets out some noteworthy key issues (see Sect. 5 for standing, Sect. 6 for the opt-in approach, Sect. 12 for collective settlement). The Italian legislation on collective redress actions in the field of consumer protection certainly requires some improvements (see Sect. 7 on a de lege ferenda ‘dual system’). However, it can be considered a step forward in the right direction (see Sect. 13).

The Netherlands is internationally known for its collective settlement mechanism that was introduced in 2005. In a small number of cases with a global outreach this settlement regime has proven to be effective. However, its application relies on the willingness to conclude a settlement agreement and to have it de-clared binding by the court. A collective action regime had been in place for decades, but was limited to injunctive and declaratory relief. After years of discussion the collective redress system was ‘upgraded’ by introducing a collective action procedure for damages in 2020. While the intention behind this latest addi-tion can be welcomed as an effective collective action system in this regard was lacking, some of its fea-tures are also subject to criticism and have raised doubts as to whether the new Act is an improvement. That is especially the case with respect to actions filed for declaratory and injunctive relief by so called ‘ideological claimants’. Another crucial aspect for the effectiveness of collective redress mechanisms in general, but particularly with respect to monetary relief, is the availability of funding. The different modes of financing litigation, are the topic of extensive debate. In particular third-party funding as a solution to enable expensive collective actions to take place, has gained critical attention in Europe, even though it may prove to be the only available or viable funding option in the international context. This chapter dis-cusses developments in collective redress in the Netherlands with a focus on the issue of funding and on the position of the Netherlands collective redress regime in the European and international context. It con-cludes that if the Netherlands is to continue to hold its predominant position in Europe in relation to col-lective redress, that will not be because of the new law, but because of the creativity of lawyers, the prag-matism of the Dutch courts and the willingness of funders to rely on both.