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COLLECTIVE REDRESS PROCEDURES–EUROPEAN DEBATES

Published online by Cambridge University Press:  24 April 2009

Duncan Fairgrieve  and
Geraint Howells
Duncan Fairgrieve
Affiliation:
British Institute of International and Comparative Law.
Geraint Howells
Affiliation:
Professor of Commercial Law, University of Manchester and barrister, Gough Square Chambers.
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Abstract

Collective redress mechanisms for consumer claims seek both to allow legal systems to accommodate mass litigation without being overwhelmed and to enable litigation to be viable where individual claims would not be economic. The article maps a number of recent reforms and reform proposals relating to consumer collective redress at national level and comments on EU developments. It notes that there is insufficient recognition of the differences between schemes geared at managing mass litigation as opposed to those aimed at facilitating otherwise non-viable claims. There are however signs that a European style of collective redress procedure is developing, which emphasize the role of public authorities and consumer organizations as gatekeepers to collective redress. The EU is unlikely to be able to impose collective redress procedures on national civil procedures, but the EU could prompt Member States to reflect on the need for national reforms. There may be limited scope for an EU mechanism to address the problem of individually non-viable consumer claims. This would however have to address certain fundamental issues such as the opt-out mechanism, cy-près distribution and funding if consumer organizations are to be encouraged to bring such actions. At a legal doctrinal level, it is interesting to note the influence of comparative studies on policy development within Member States as well as at the EU level.

Type
Article
Information
International & Comparative Law Quarterly , Volume 58 , Issue 2 , April 2009 , pp. 379 - 409
Copyright
Copyright © 2009 British Institute of International and Comparative Law

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References

1 Both DG-SANCO and DG Competition have been active in this area, see: Green Paper—Damages actions for breach of the EC antitrust rules COM(2005) 672 final; and now White Paper on Damages actions for breach of the EC antitrust rules COM (2008) 165; and Green Paper on Consumer Collective Redress COM(2008) 794 final.

2 See G Howells and T Wilhelmsson, EC Consumer Law (Dartmouth, 1997) and S Weatherill, EU Consumer Law and Policy (Edward Elgar, 2005).

3 EU Consumer Policy Strategy 2007–2013 COM(2007) 99 final.

4 The history of EU involvement in these debates is well set out in European Economic and Social Committee, Opinion on Defining the collective actions system and its role in the context of Community Consumer Law [2008] OJ C 162/1. The response to collective consumer harm has often been regulatory in nature: the Injunctions Directive was adopted which allows government and/or consumer organizations to bring actions for breach of EC rules in order to protect the consumer interest (Directive 98/27 concerning injunctions for the protection of consumers' interests) and a Regulation has recently been enacted to promote cooperation between enforcement bodies (Regulation EC 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws).

5 Out of court dispute resolution has been bolstered by complaints forms and recommendations promoting minimum standards for ADR schemes (Recommendations 98/275/EC: [1998] OJ L115/31 and 2001 Recommendation 2001/310/CE: [2001] OJ L109/56). Measures addressing more formal legal redress has been more tentative, but measures do exist with regard to legal aid (Decision 2001/470/EC OJ 174/25 and small claims procedures (Regulation (EC) 861/2007 OJ L 199/1).

6 Note, ‘Developments in the Law—Class Actions’ (1975–76) 89 Harv L Rev 1319.

7 Micklitz, H-W, Reich, N and Weatherill, S, ‘EU Treaty Revision and Consumer Protection’ (2004) 27 Journal of Consumer Policy 367CrossRefGoogle Scholar and Weatherill, S, ‘The Commission's Options for Developing EC Consumer Protection and Contract Law: Assessing the Constitutional Basis’ (2002) 13 EBLR 497.Google Scholar

8 Regulation No 44/2001 on jurisdiction and recognition and enforcement of judgments in civil and commercial matters of 22 December 2000 entered into force on 1 March 2002. It has substituted the Brussels Convention from 1968 which has the same subject matter and continues to apply vis-à-vis Denmark. Under the Regulation, the general rule regarding recognition is laid down in Article 33(1) which provides that a judgment given in a Member State is to be recognized in the other Member States without any special procedure being required. See below.

9 The Brussels Regulation provides for derogations from the general rule of recognition by setting out a number of situations in which a court of one Contracting State must refuse to recognize a judgment given by a court in another Contracting State, of which the first two, as outlined by in Article 34 of the Regulation are: (1) if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought; (2) where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so.

10 On 16 October 2008, the Legal Practice division of the IBA adopted guidelines for Recognizing and Enforcing Foreign Judgments for Collective Redress. Industry is of course keen that any order be final so that defendants can at last draw a line under the litigation and not face follow-on actions in other jurisdictions.

11 See generally, A Pinna, ‘Recognition and Res Judicata of US Class Action Judgments in European Legal Systems’ Erasmus Law Review 1 (2008) 31.

12 Department of Trade and Industry (DTI), Representative Actions in Consumer Protection Legislation (2006).

13 Improving Access to Justice through Collective Actions (Civil Justice Council, November 2008). See also R Mulheron, Reform of Collective Redress in England and Wales: A Perspective of Need (a research paper for the Civil Justice Council, February 2008).

14 For discussion of US, Australian Federal and Ontario model see R Mulheron, The Class Action (Hart, 2004).

15 For example s. 47B of the UK's Competition Act 1998.

16 See below.

17 See for example Andrews, N, ‘Multi-party Proceedings in England: Representative and Group Actions’ (2001) 11 Duke J of Comp and Int Law 249Google Scholar, who reports the view of Lord Steyn that ‘English senior judges are opposed to a litigious society, that is, an over-excited tendency for citizens and businessmen to “blame and claim” by bringing actions in the ordinary courts rather than pursuing grievance procedures through political systems of democratic accountability, pressure groups, ombudsmen, arbitration, conciliation, etc. Nor, he suggested, were these judges guilty of applying an oligarchic brake on the litigation process. Instead, he said this view reflected a sense, which is widely shared within the community, of the place of civil law and of its relationship to the other organs of political and social life.’ Commissioner Kuneva made her view clear on this topic in a speech in Lisbon on 10 November 2007: ‘To those who have come all the way to Lisbon to hear the words “class action”, let me be clear from the start: there will not be any. Not in Europe, not under my watch.’

18 See 384 below.

19 See 385 below.

20 See generally W van Boom and M Loos (eds), Collective Enforcement of Consumer Law (Groningen, 2007) 94–96.

21 Group Proceedings Act 2002.

22 However, group claims brought by non-profit orgnizations are limited to consumer law and environmental law.

23 Earlier proposals had favoured an opt-out approach.

24 Per Hendrik Lindblom, ‘National Report: Group Litigation in Sweden’ 17–18 (available at: http://www.law.stanford.edu/calendar/details/1066).

25 In particular as regards the group action instituted to contest the Swedish restrictions on the import of alcohol, see the dedicated website: www.euprivatimport.se (last visited 15 January 2009).

26 For further details, see Per Hendrik Lindblom, ‘National Report: Group Litigation in Sweden’ 21 (available at: http://www.law.stanford.edu/calendar/details/1066).

27 ibid.

28 By virtue of Act No 181 of 28 February 2007.

29 In the case of opt-out actions, only a public authority may be appointed as class representative.

30 According to the explanatory notes to the relevant Bill.

31 eg where the case includes a very large number of persons so that the practical administration of opt-in notices will require a disproportionate amount of resources (see further ‘New Rules on Class Actions under Danish Law’ (Danish Ministry of Justice, Legal Department, 26 June 2007) 6). Under the opt-out model, the only eligible class representative is a public authority authorized for the purpose by law (ie the Consumer Ombudsman).

32 See, further, ‘New Rules on Class Actions under Danish Law’ (Danish Ministry of Justice, Legal Department, 26 June 2007) 6.

33 By virtue of the Dispute Act 2005. See generally Backer, I, ‘The Norwegian Reform of Civil Procedure’ Scandinavian Studies in Law Vol 51 (2007) 60 et seqGoogle Scholar.

34 Class actions are defined as follows in section 35-1(2) of the Dispute Act 2005: ‘A class action is an action that is brought by or directed against a class on an identical or substantially similar factual and legal basis, and which is approved by the court as a class action.’

35 ibid.

36 See W van Boom and M Loos (n 20) 94.

37 Act on Class Actions, Ryhmäkannelaki, 444/2007.

38 For further information, see the Ministry of Justice, Finland: www.om.fi/Etusivu/Ajankohtaista/Uutiset/1175668512999?lang=en (last visited 15 January 2009).

39 See section 4 of Act on Class Actions: ‘The Consumer Ombudsman, as the plaintiff, shall have exclusive standing to bring a class action and to exercise the right of a party to the case to be heard in court.’

40 See W van Boom and M Loos (n 20) 95.

41 Law 83/1995. Subsequent legislation has been adopted, with only limited impact on this earlier law (eg the Law on Defence of the Consumer of 31 July 1996 (24/96)).

42 See generally J Pegado Liz, ‘Notion and Regime of the ‘Popular Action’ in Portugal’, paper presented at the European Parliament Conference ‘Group Action: Taking Europe Forward’, 11 October 2007.

43 The following draws upon the analysis of J Pegado Liz,ibid.

44 As long as the association or foundation represents interests protected by the relevant legislation.

45 As well as, in certain circumstances, the Public Attorney (Ministério Público) and the Consumers Institute (Instituto do Consumidor).

46 Article 19 of the relevant legislation provides that the decisions have an effect erga omnes, except as regards those who exercise the right to exclude themselves.

47 See generally J Pegado Liz, ‘Notion and Regime of the ‘Popular Action’ in Portugal’, paper presented at the European Parliament Conference ‘Group Action: Taking Europe Forward’, 11 October 2007.

48 For details of the three actions undertaken, see R Mulheron, Reform of Collective Redress in England and Wales: A Perspective of Need (a research paper for the Civil Justice Council, February 2008) 100. See also Hendrique Sousa Antunes, ‘Class Actions, Group Litigation and Other Forms of Collective Litigation’ 20 (available at: http://www.law.stanford.edu/calendar/details/1066).

49 Capped at a level of between 10 per cent and 50 per cent of normal costs. Another explanation which has been given for the infrequent use of the procedure is the limited resources of the Portuguese Association for Consumer Protection to bring this claims, rather than due to a deficiency of the regime itself (R Mulheron, Reform of Collective Redress in England and Wales: A Perspective of Need (a research paper for the Civil Justice Council, February 2008) 100).

50 R Mulheron,ibid.

51 The Collective Settlement of Mass Damage Act has been incorporated in Articles 7:907–7:910 of Book 7 of the Dutch Civil Code.

52 Organized together in the form of a non-profit organization or ‘representative entity’.

53 Parties who do not wish to be bound by the settlement agreement can so declare within a term to be determined by the court.

54 See further D Lunsing Scheurleer and Ianika Tzankova ‘Way of the future’ (IFLR, October 2007).

55 A number of claimants chose to opt out of the Dexia settlement (relating to mis-sold retail investment products) and pursued individual claims. Interestingly, the District Court of Amsterdam has since given judgment in a series of individual cases, in which it sets out a model for compensation that is very different to that laid down by the court-approved settlement.

56 By way of example, in the aforementioned Dexia case, the settlement mediated by former Central Banker Wim Duisenberg was declared binding by the Amsterdam Court of Appeal on 25 January 2007 and consumers had to opt out by 31 July 2007.

57 See further Cees van Dam, ‘Dutch case law on the EU Product Liability Directive’ in D Fairgrieve (ed), Product Liability in Comparative Perspective (CUP, Cambridge, 2005) 135–137.

58 See, eg Financial Times (International Edition) 20 May 2008.

59 To the extent that the articles of association promote such interests.

60 Section 3:305 a (3) Civil Code. However, claimants may seek injunctive relief or a judicial declaration that the defendant is liable for the damage it has caused.

61 In a New Year address on 4 January 2005, President Jacques Chirac surprised commentators by announcing an initiative to introduce into French law collective actions for damages claims: ‘We also have to give consumers the means to enforce their rights: today they are deprived of such rights because, taken separately, none of the injuries they incur is significant enough to cover the cost of a judicial action. This is why I am asking the government to put forward an amendment of legislation in order to allow groups of consumers and consumer associations to bring collective actions concerning wrongful practices undertaken on some markets.’ (authors' translation).

62 See generally I Papadopoulos, Plaider Coupable: La pratique américaine, Le texte français (PUF, 2004).

63 See Article 421-1(1) of the Code de la Consommation.

64 See also the parallel action available to approved associations of shareholders or investors in respect of wrongful acts harming the ‘collective interest of investors’ (Article L 452-1 of the Monetary and Financial Code).

65 See Lamy Droit Economique (Paris, 2007) para 5153.

66 See also the parallel action available in the financial services sphere: Article L 452-2 of the Monetary and Financial Code).

67 Groupe de travail sur les actions collectives à l'occasion des litiges de consommation, Rapport sur l'action de groupe (16 December 2005).

68 See Proposition de loi de M Luc CHATEL visant à instaurer les recours collectifs de consommateurs, n° 3055 registered at the National Assembly on 26 April 2006 and Proposition de loi tendant à créer une action de groupe, registered at the National Assembly on 13 March 2007, n° 3775.

69 N° 3430, registered on 8 November 2006.

70 ‘Je m'inscris vraiment en faux contre la judiciarisation et la pénalisation du droit économique français’ Confédération Générale des Petites et Moyennes Entreprises, 24 January 2007 (‘I am really against the introduction of excessive criminal and legal procedures in respect of French financial law.’)

71 ‘Il y a des progrès à faire en matière de respect des droits des consommateurs à l'égard de certains services. J'entends bien y concourir. Il nous faut encore du temps de concertation pour y aboutir. Mais il faudra que nous parvenions à instaurer une formule d'actions de groupe' (see L'Ordinateur Individuel (6 March 2007)).

72 See Proposition de loi de M Luc Chatel visant à instaurer les recours collectifs de consommateurs, n° 3055 registered at the National Assembly on 26 April 2006.

73 ‘Avec le secrétaire d'Etat chargé de la Consommation et du tourisme, vous serez particulièrement vigilants en ce qui concerne les prix dans les grandes surfaces, les pratiques bancaires, les nouveaux services. Vous créerez une action de groupe à la française.’

74 Two recent Commissions have proposed the creation of new group procedures under French law. See Rapport de la Commission pour la Libération de la Croissance française: sous la présidence de Jacques Attali (2008), Decision 191, ‘Introduire les Actions de Groupe’ 144; La dépenalisation de la vie des affaires: groupe de travail présidé par Jean-Marie Coulon (2008) 89 (group action as a corollary to the limitation of criminal offences in the consumer sphere). However, there have less enthusiastic views; see, eg Pierre Simon, ‘Action de Groupe, Attention Danger’ Le Tribune (11 February 2008).

75 Article 140; bis of the Consumer Code.

76 Analysing, inter alia, whether there are prima facie grounds for the claim or not, whether there is commonality of interest and that there are no conflicts of interest between claimants.

77 Or, where possible, a minimum amount payable to each consumer.

78 The Camera di Conciliazione is composed of a claimant-appointed lawyer, and a defendant-appointed lawyer, and is chaired by a lawyer appointed by the president of the court.

79 On this, see Micklitz, Hans-W and Stadler, Astrid, ‘The Development of Collective Legal Actions in Europe, especially in German Civil Procedure’ [2006] European Business Law Review 1473Google Scholar.

80 § 147 ZPO, German Code of Civil Procedure.

81 Micklitz and Stadler (n 79).

82 See s 10 Competition Law 3 July 2004 and s 34a Act Against Restraints on Competition as amended on 15 July 2005. See Gottwald, P, ‘On the Extension of Collective Legal Protection in Germany’ (2007) CJQ 484.Google Scholar

83 Kapitalanleger-Musterverfahrensgesetz (KapMuG)- The Law Governing Test Cases in Capital Investment.

84 It is reported that after settlement negotiations failed the trial started in April 2008 and is expected to last 10–15 years, C Hodges, The Reform of Class and Representative Actions in European Legal Systems (Hart, 2008) 78.

85 Admissible applications for this process are publicly announced by the District Court in a special complaint registry, which can be accessed on the internet: http://www.ebundesanzeiger.de (last visited 15 January 2009).

86 Micklitz and Stadler (n 79). See also H-W Micklitz, ‘Collective Private Enforcement of Consumer Law: the Key Questions’ in Boom and Loos (n 20).

87 Das Verbandsklagerecht in der Informations- und Dienstleistungsgesellschaft, Schriftenreihe des Bundesministeriums für Verbraucherschutz, Reihe A Heft 507 (2005) 1419 et seq.

88 ibid.

89 R Mulheron, The Class Action (Hart, 2004).

90 See Irish Law Reform Commission, Consultation Paper on Multi-Party Litigation (2003) and Report on Multi-Party Litigation (2005).

91 R Barker, ID Willock and JJ McManus, Multi Party Actions in Scotland (Scottish Office Central Research Unit, Edinburgh 1994) and National Consumer Council and Scottish Consumer Council, Representative actions in consumer protection legislation (2006).

92 Davies v Eli Lilley & Co [1987] 1 WLR 1136.

93 Woolf, Access to Justice, Final Report (1996).

94 M Mildred, ‘Group Actions’ in G Howells, The Law of Product Liability (Butterworths Lexis-Nexis, 2007).

95 http://www.hmcourts-service.gov.uk/cms/150.htm (last visited 15 January 2009).

96 Improved Access to Justice – Future Funding of Litigation Costs (2007).

97 Chocosuisse Union des Fabricants Suisse de Chocolat v Cadbury Ltd [1998] ETMR 205.

98 [1980] 2 WLR 339.

99 J Jolowicz, ‘Representative Actions and Damages—A Compromise Solution?’ (1980) 39 Cambridge Law Journal 237.

100 And also the related issue of whether causation issues or individual defences might arise.

101 See Mulheron, R, ‘From Representative Rule to Class Action: Steps Rather Than Leaps’ (2005) 24 Civil Justice Quarterly 424–449Google Scholar; Seymour, J, ‘Representative Proceedings and the Future of Multi-Party Actions’ (1999) 62 MLR 564–584CrossRefGoogle Scholar; Seymour, J, ‘Justice and the Representative Parties Rule; An Overriding Interest?’ (2005) 25 Legal Studies 668.CrossRefGoogle Scholar

102 See Dayagi-Epstein, O, ‘Representation of Consumer Interest by Consumer Associations—Salvation for the Masses?’ (2007) 3 Competition Law Review 209.Google Scholar

103 Section 47B(6) of the Competition Act 1998.

104 R Mulheron, Reform of Collective Redress in England and Wales: A Perspective of Need (a research paper for the Civil Justice Council, February 2008) 38–46.

105 See generally R Mulheron, Modern Cy-près Doctrine: Applications and Implications, (Cavendish UCL Press, London, 2006).

106 (2006). See also for parallel developments in other sectors Patent Office, Representative Actions for the Enforcement of Intellectual Property Rights (2006).

107 Representative Actions in Consumer Protection Legislation (2006).

108 Representative Actions in Consumer Protection Legislation—A Consultation Response by the Office of Fair Trading (2006).

109 R Mulheron, Reform of Collective Redress in England and Wales: A Perspective of Need (a research paper for the Civil Justice Council, February 2008). Whilst the opinions expressed in the Paper were specifically stated to not necessarily represent the views of the Civil Justice Council, the Research was said to have been undertaken to assist the Civil Justice Council in its consideration of possible reform of the collective redress mechanisms presently available in England and Wales.

110 ibid 157.

111 ibid 157.

112 ibid.

113 See Improving Access to Justice through Collective Actions (Civil Justice Council, November 2008). It envisages that sector-specific collective actions could be introduced to complement the generic action, but remains unclear whether there will be the political desire to introduce both a specific regime for consumers and a generic action.

114 eg to a Foundation or Trust.

115 See, eg R Mulheron, Reform of Collective Redress in England and Wales: A Perspective of Need (a research paper for the Civil Justice Council, February 2008); S Guinchard, ‘Une Class Action à la Française ?’ Dalloz 2005.2180; L Gaudin, ‘L'Introduction d'une Action de Group en Droit Français: Présentation du Projet de Loi en Faveur des Consommateurs’ Les Petites Affiches, 17 January 2007, N°13, 3.

116 For a Franco-British study of the operation of such schemes, see D Fairgrieve, State Liability in Tort: A Comparative Law Study (Oxford University Press, 2003) Chap 8. See also on this, Fondazione Rosselli, Analysis of the Economic Impact of the Development Risk Clause as provided by Directive 85/374/EEC on Liability for Defective products (2004).

117 See J Calais-Auloy and F Steinmetz, Droit de la Consommation (7th edn, Paris, 2006) para 18: ‘Numerous obligations imposed on traders for consumer protection purposes are accompanied by criminal sanctions.’ (author's translation).

118 The one exception is Portugal where the opt-out model is potentially broadly available but which has had only limited application for the reasons mentioned above 8.

119 See comments on this in Hans-W Micklitz and Astrid Stadler (n 79).

120 A detailed analysis may be found in G Canivet, ‘Des Obstacles Juridiques à L'action de Groupe’, paper delivered at the conference on 10 November 2005 on the topic of ‘Pour de Véritables Actions de Groupe: un accès efficace et démocratique à la justice.’ See also G Canivet, ‘Introduire l'action collective est une évolution inéluctable’ La Tribune (16 May 2006).

121 On the impact of the case law of the French Constitutional Council, as well as that of the European Court of Human Rights, see S Guinchard, ‘Une Class Action à la Française?’ (Dalloz, 2005, 2180). One decision in particular of the French Conseil Constitutionnel is seen by some as presenting a serious obstacle to an opt-out system: Conseil Constitutionnel N°89-257 DC of 25 July 1989 (group action by a trade union). See, Guinchard,ibid, and contra S Cabrillac, ‘Pour l'Introduction de la Class Action’ Les Petites Affiches, 18 August 2006, N°165, 4.

122 See Lamy Droit Economique (Paris, 2007) para 5153.

123 See Hans-W Micklitz and Astrid Stadler, ‘The Development of Collective Legal Actions in Europe, especially in German Civil Procedure’ [2006] European Business Law Review 1473.

124 Some systems follow the pattern of a two-stage procedure with an initial admissibility filter followed by an examination of the merits (see for instance Portugal). The new Italian procedure, however, adopts a more complex model.

125 Restricted to tort liability, unlawful commercial practices or anti-competitive behaviour, and contract terms.

126 Restricted to defects in consumer goods, the interpretation of contract terms or disputes between consumers and entrepreneurs regarding the sale and marketing of investment products and insurance.

127 Restricted to public health, environment, consumer protection, cultural heritage and public property.

128 For an initiative of the European Economic and Social Committee, see Own-initiative opinion on Defining the collective actions system and its role in the context of Community consumer law, EESC 1143/2007.

129 EU Consumer Policy Strategy for 2007–2013, COM(2007) 99 Final, 11.

130 This study is available at http://ec.europa.eu/consumers/redress/collect/index_en.htm (last visited on 15 January 2009).

131 Both are available at http://ec.europa.eu/consumers/redress/collect/index_en.htm (last visited on 15 January 2009).

132 A summary of this event can be found at: http://ec.europa.eu/consumers/redress_cons/collective_redress_en.htm (last visited on 15 January 2009).

133 ‘On the Way to Collective European Action?’ November 9–10, organized by the Portuguese Presidency, with the support of the European Commission.

134 Commissioner Kuneva, ‘Healthy Markets Need Effective Redress’, Concluding speech at Conference on Collective Redress (Lisbon, 10 November 2007). For further details, see the paper of Commissioner Kuneva which is available at: http://ec.europa.eu/commission_barroso/kuneva/speeches/speech_10112007_en.pdf (last visited on 15 January 2009).

135 ibid 5–6. Commissioner Kuneva underlines that the bench-marks are provisional only, and are to be ‘fine-tuned’ in discussion with stake-holders.

136 See further http://ec.europa.eu/consumers/redress_cons/collective_redress_en.htm.

137 COM(2008) 794 final.

138 [2004] OJ L 364/1.

139 See, Law Commission's Preliminary advice to the Department for Business, Enterprise and Regulatory Reform, A Private Right of Redress for Unfair Commercial Practices? (November 2008).

140 Ashurst, Study on the Conditions of Claims for Damages in Case of Infringement of EC Competition Rules (31 August 2004).

141 Green Paper: Damages Actions for Breach of the EC Antitrust Rules (Com(2005) 672 final).

142 White Paper on Damages Actions for Breach of the EC Antitrust Rules (COM(2008) 165 final).

143 ibid 4.

144 ibid 4.

145 Brussels Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1, Reg 33(1).

146 Reg 35(1).

147 Reg 34(1).

148 Case C-7/98 [2000] ECR I-1395.

149 See discussion above 400.

150 For example, in Maronier v Larmer [2002] EWCA Civ 774; [2002] 3 WLR 1060 where a case was reactivated after 12 years and the time for appeal had passed without the defendant being notified.

151 See (n 10) above.

152 G Howells, ‘Collective Actions—the Role of Agencies and Organisations’ in F Cafaggi and H-W Micklitz, New Frontiers of Consumer Protection (Kluwer, forthcoming).

153 Directive 98/27/EC: [1998] OJ L166/51.

154 Hodges (n 84).

155 See above 404.

156 This seems to be the key to the success of Austrian consumer organizations who have brought over twenty collective redress cases funded by third party insurers who accept 20 per cent of the damages: German consumer organizations seem to be going down the same route. See F Cafaggi and H-W Micklitz, Administrative and Judicial Enforcement in Consumer Protection: The Way Forward, available at http://cadmus.iue.it/dspace/handle/1814/3//browse-date at 14 (F Cafaggi and H-W Micklitz [n 152]).

157 Section 194 of the Legal Services Act 2007 allows costs order to be made in pro bono cases with the money going to the Access to Justice Foundation. Although collective consumer claims are not normally pro-bono claims the idea of a Foundation with a fighting fund for future cases could be borrowed, financed by a levy on costs awarded in collective actions.

158 For contrast between the US and EC approaches see G Howells and T Wilhelmsson, ‘EC and US Approaches to Consumer Protection—Should the Gap be Bridged?’ Yearbook of European Law 1997 207. With specific reference to the current debates on collective redress see F Cafaggi and H-W Micklitz (n 156).

159 For two prominent examples see in relation to England and Wales the impressive study undertaken by Rachael Mulheron (Reform of Collective Redress in England and Wales: A Perspective of Need (a research paper for the Civil Justice Council, February 2008) and the French working group on the reform of group actions (Rapport sur l'action de groupe (16 December 2005)) both of which rely heavily upon comparative law analysis.