Is a Class Action System for Consumers Desirable in Europe?

• Date: 01 January 2010
• Author: Barry O'Sullivan

Is a Class Action System for Consumers

Desirable in Europe?

BA RRY O ’SUL LIVAN

This article purports to examine the viability of a harmonised system of

collective redress throughout Europe, insofar as it would be implemented

as EU law. In doing so, it will examine the potential proposals put forward

of late by the European Commission in its Green Paper,1and also the recent

Consultation Paper drafted in response to the Green Paper.2Each of the

four options put forward by the Green Paper will be discussed and critically

analysed, and the preferred approach of this author will be indicated.

In justifying this preference, the approaches taken and results experienced

in other non-European jurisdictions will be examined, and analysis will be

offered. In discussing how to implement a collective redress system in the

EU, it is most beneficial to examine the US class action system, given that

it is the original form of collective litigation. Thus, it can serve as a useful

guideline for the EU, insofar as any problems arising in the US could, by

example, be avoided by the EU legislature. The approaches taken in Canada

and Australia will also be examined to ascertain whether provisions are in

place there that merit inclusion in an EU system.

Then, national collective redress systems already adopted by individual

EU Member States will be examined. There will be a particular focus on the

existing Irish system and, to a lesser extent, that of the UK, in order to

identify what changes are needed. In addition, the approaches of the various

civil law continental systems will also be identified and examined, with a

view to including them as part of, what I propose to be, an ideal system.

By way of conclusion, this ideal system will be proposed, taking into

account the Green Paper’s proposals and the benefits of approaches taken

in other non-EU jurisdictions, as well as any useful provisions already

implemented by Member States individually.

There has been much discussion of late as to whether some system of

collective litigation should be implemented in European law, especially in

1Green Paper on Consumer Coll ective Redress, published 27 November 2008,

http://ec.europ a.eu/consumers/redress_cons/ greenpaper_en.pdf, accessed on 17

December 2009 [hereinafter Green Paper].

2Consultation Paper for discussion on the follow up to the Green Paper on Collective

Consumer Redress, published 29 May, 2009, http://ec.europa.eu/consumers/redress_

cons/docs/consultation_paper2009.pdf, accessed on 17 December 2009 [hereinafter

Consultation Paper].

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