Yesterday, I spoke at the George Mason Law Review’s 18th Annual Antitrust Symposium. My panel was devoted to Class Actions and Class Actions.
My presentation discussed the collective redress regimes already in place in some Member States, as well as the Recommendation of the Commission 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.
In my view, this Recommendation is unsatisfactory as it is based on an irrational fear of the US class actions regime. As a result, the Recommendation contains a series of safeguards whereby Member States should adopt legislation based on the following principles: opt-in, no contingency fees, no punitive damages and loser-party pays. This means that the incentives that are necessary to encourage collective redress actions will largely be absent. In my view, one should simply leave it to the judges to weed out unmeritorious claims by imposing a high standard for “class” certification.
The UK Consumer Bills that will soon be adopted in more ambitious than the Recommendation in that it allows opt-out actions, subject to certain safeguards. It will interesting to see how this system develops in the years to come.
For more details, have a look at my slides, which can be found here.