Directive (EU) 2020/1828 required every Member State to equip at least one procedural mechanism with representative actions for injunctive and redress measures on behalf of consumers. Almost all twenty-seven Member States have by now transposed it, yet the result is not one European model but, on a fair count, twenty-seven different ones, loosely held together by a text that chose, on every point that mattered, not to choose. This paper concentrates on ten of those systems — Italy, France, Germany, the Netherlands, Belgium, Portugal, Slovenia, Poland and Spain’s pending reform, together with England’s non-Directive regime as an indispensable outside comparator — selected because their domestic collective-redress traditions run deepest, because their courts have by now produced the largest and most revealing body of case law, and because their compensatory and injunctive output, domestic and cross-border alike, is where the Directive’s practical effects are easiest to observe. It argues that the Directive’s minimum-harmonisation method has reproduced, rather than cured, the fragmentation it was meant to address, chiefly because of three conservative choices built into its own architecture: an institutional-claimant model of standing that leaves too little room for the individual claimant or the ad hoc committee; a funding regime that polices third-party involvement without ever choosing how collective litigation should actually be paid for; and a silence on cross-border jurisdiction that a 2025 Commission report has, belatedly, begun to acknowledge as untenable. It closes by proposing that these three gaps — standing, financing and cross-border jurisdiction — are where the Directive’s first genuine revision should concentrate.
Twenty-Seven Shades of Collective Redress. Standing, Financing and the Cross-Border Fault Line in Representative Actions After Directive (EU) 2020/1828
B. Zuffi
In corso di stampa
Abstract
Directive (EU) 2020/1828 required every Member State to equip at least one procedural mechanism with representative actions for injunctive and redress measures on behalf of consumers. Almost all twenty-seven Member States have by now transposed it, yet the result is not one European model but, on a fair count, twenty-seven different ones, loosely held together by a text that chose, on every point that mattered, not to choose. This paper concentrates on ten of those systems — Italy, France, Germany, the Netherlands, Belgium, Portugal, Slovenia, Poland and Spain’s pending reform, together with England’s non-Directive regime as an indispensable outside comparator — selected because their domestic collective-redress traditions run deepest, because their courts have by now produced the largest and most revealing body of case law, and because their compensatory and injunctive output, domestic and cross-border alike, is where the Directive’s practical effects are easiest to observe. It argues that the Directive’s minimum-harmonisation method has reproduced, rather than cured, the fragmentation it was meant to address, chiefly because of three conservative choices built into its own architecture: an institutional-claimant model of standing that leaves too little room for the individual claimant or the ad hoc committee; a funding regime that polices third-party involvement without ever choosing how collective litigation should actually be paid for; and a silence on cross-border jurisdiction that a 2025 Commission report has, belatedly, begun to acknowledge as untenable. It closes by proposing that these three gaps — standing, financing and cross-border jurisdiction — are where the Directive’s first genuine revision should concentrate.
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