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:
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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
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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. 37.3 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
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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?
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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
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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:
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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.