The Directive on representative actions for the protection of the collective interests of consumers (“EU Associations’ Complaints Directive”, “Collective Redress Directive”) has gained momentum. On June 22, 2020, the Parliament and the Council agreed on a revised draft agreed, which is now to be considered by the governments of the member states. The draft is available here (PDF).
The aim of the directive is to ensure collective interests of consumers in case of violation of certain rights. The member states must therefore ensure at least a representative action that ensures both interim legal protection and the enforcement of reparatory claims. The details are left to the Member States. The directive does not regulate questions of jurisdiction, enforcement and applicable law.
The areas affected are those according to Annex I of the Directive – including the GDPR (Recitals 6 and 6b and Annex I para. 53). There is therefore nothing to prevent also responsible parties or processors outside the EEA may face a mass action in an EEA court in the event of a breach of the GDPR, which may need to be taken into account in risk assessments.
The background to the directive is, on the one hand, “Dieselgate” and, on the other hand, the fact that the EU Commission recommended to the member states as early as 2013 to provide for instruments for collective redress, but sees this only insufficiently implemented:
- A large proportion of member states do have such instruments, but often limited to specific areas of law, e.g. consumer protection, competition law, labor law, financial services or environmental law.
- In contrast, only Belgium, Denmark, Lithuania, the Netherlands, Portugal and the UK provide for collective actions for damages in all areas.
- In practice, collective redress has become important mainly in cases of passenger rights, financial services and competition infringements (especially in the case of compensation claims where an infringement has been created).