Investor Protection Through Model Case Procedures – Implementing Collective Goals and Individual Rights Under the 2012 Amendment to the German Capital Markets Model Case Act (KapMuG)

Abstract

Model case procedures have some fundamentals in common with collective redress in civil law countries. This is particularly true in the field of investor protection. This area is highly regulated and marked by resulting enforcement failures, which led the German legislator to the enactment of the KapMuG and its recent amendment, highlighting exemplary elements of model case procedures. A survey of the ongoing activities of the European Union in the area of collective redress and of its repercussions at Member State level therefore forms a suitable basis for the following analysis of the 2012 amendment to the KapMuG. It clearly brings into focus a shift from sector-specific regulation with an emphasis on the cross-border aspect of protecting consumers, towards a ‘coherent approach’ strengthening the enforcement of EU law. As a result, today, regulatory policy and collective redress are two sides of the same coin. With respect to the KapMuG, such a development brings about some tension between its aim to aggregate small individual claims as efficiently as possible and the dominant role of individual procedural rights in German civil procedure. This conflict can be illustrated by some specific elements of the KapMuG: its scope of application; the three-tier structure of a model case procedure; the newly introduced notification of claims; and the new opt-out settlement under amended §§ 17-19.