Forslag til europaparlaments- og rådsdirektiv om representative tiltak for beskyttelse av forbrukernes kollektive interesser, og om oppheving av direktiv 2009/22/EF
Proposal for Directive of the European Parliament and of the Council on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC
Forslag til europaparlaments- og rådsdirektiv lagt fram av Kommisjonen 11.4.2018
BAKGRUNN (fra kommisjonsforslaget, engelsk utgave)
Reasons for and objectives of the proposal
Effective enforcement of EU rules matters to Europeans and affects their daily lives. That is why a robust, efficient and effective enforcement system is needed to ensure that Member States fully apply, implement and enforce EU law and provide adequate redress for citizens.
In this context, this proposal aims to modernise and replace Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests ("the Injunctions Directive"). It is being presented together with the proposal on targe ted amendments to four EU consumer law Directives as part of the "New Deal for Consumers", included in the 2018 Commission Work Programme so as to improve the effectiveness of the injunction procedure and contribute to the elimination of the consequence s of the infringements of Union law which affect the collective interests of consumers.
This proposal is a follow-up to the REFIT Fitness Check of EU consumer and marketing law, published on 23 May 2017 (from now onwards: "Fitness Check"), which covered also the Injunctions Directive, and to the Commission Report of 25 January 2018 on the implementation of Commission Recommendation 2013/396/EU on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law (from now onwards: "Collective Redress Report").
These evaluations demonstrated that the risk of infringements of Union law affecting the collective interests of consumers is increasing due to economic globalisation and digitalisation. Traders that infringe EU law may affect thousands or even millions of consumers with the same misleading advertisement or unfair standard contract terms in a number of different economic sectors. In light of increasing cross-border trade and EU-wide commercial strategies, these infringements increasingly also affect consumers in more than one Member State . Moreover, the Collective Redress Report showed that a number of Member States still do not provide for collective compensatory redress mechanisms tailored for mass harm situations. It stated the Commission's intention to follow up the assessment of the 2013 Recommendation with a particular focus on strengthening the consumer redress and enforcement aspects of the Injunctions Directive.
Since 1998, when the Injunctions Directive was first adopted, this EU instrument makes it possible for qualified entities designated by the Member States, such as consumer organisations or independent public bodies, to bring representative actions for the protection of the collective interests of consumers with the primary aim of stopping both domestic and cross-border infringements of EU consumer law listed in its Annex I. The Injunctions Directive has been codified by Directive 2009/22/EC, which is currently in force. It was last amended by Regulation (EU) 2018/302 on geoblocking in order to include that Regulation in Annex I.
The 2008 and 2012 Commission reports on the application of the Injunctions Directive and the 2016-2017 Fitness Check confirmed the Directive's importance. However, the Fitness Check concluded that it had considerable shortcomings, which, if left unaddressed, would continue to hinder its full effectiveness and lead to sub-optimal use. Even in Member States where injunctions are considered effective and are widely used, the Directive's potential is not fully exploited due to a number of elements that it does not sufficiently address. The key shortcomings are its limited scope, the limited effects of injunction decisions on redress for harmed consumers and the cost and length of the procedure (see section 3 for an overview of the results).
The need for EU action on collective redress has also been identified by the European Parliament. In its 2012 Resolution 'Towards a Coherent European Approach to Collective Redress', the European Parliament highlighted the need for a horizontal EU approach to collective redress, with focusing on infringement of consumers' rights, based on a common set of principles respectful of national legal traditions and providing safeguards to avoid abusive litigation. It underlined the possible benefits of collective judicial actions in terms of lower costs and greater legal certainty for claimants, defendants and the judicial system alike, from avoiding separate litigation of similar claims. In its 2017 Recommendation to the Council and the Commission following the inquiry into emission measurements in the automotive sector, the European Parliament called on the Commission to propose legislation on a harmonised system of collective redress for EU consumers, based on best practices within and outside the EU. This would end the current situation where consumers lack protection in many Member States which do not allow them to enforce their rights collectively. The European Economic and Social Committee has also supported EU action on collective redress for decades and called for legislation in its opinion on the 2013 Commission Recommendation, highlighting the importance of both injunctive and compensatory collective redress.
This proposal addresses those identified problems that hamper the effective and efficient application of the current Injunctions Directive. In sum, the proposal aims at the following:
• Scope - The scope of the Directive will be expanded to cover other horizontal and sector-specific EU instruments relevant for the protection of collective interests of consumers in different economic sectors such as financial services, energy, telecommunications, health and the environment. This amendment would make the procedure more responsive to the broad spectrum of infringements in economic sectors where the traders' illegal practices may affect a large number of consumers.
• Representative actions by qualified entities – The proposal builds on the approach of the current Injunctions Directive which enables 'qualified entities' designated by the Member States to bring representative actions. Under the proposal, these qualified entities will have to satisfy minimum reputational criteria (they must be properly established, not for profit and have a legitimate interest in ensuring compliance with the relevant EU law). For compensatory collective redress actions, qualified entities would also be required to disclose to the courts or administrative authorities their financial capacity and the origin of their funds supporting the action. The courts and administrative authorities will be empowered to assess the arrangements for third party funding.
• Efficiency of the procedure – The proposal will require Member States to ensure 'due expediency' of procedures and to avoid procedural costs becoming a financial obstacle to bringing representative actions. Consumers will be adequately informed of the outcome of representative actions and how they will benefit from them. The proposal also promotes collective out-of-court settlements, subject to court or administrative authority scrutiny. Final decisions of a court or authority establishing that a trader has infringed the law will be irrefutable evidence in redress actions (within the same Member State) or a rebuttable presumption that the infringement has occurred (for cases brought in another Member State).
• Injunctive and compensatory redress – The proposal will enable qualified entities to bring representative actions seeking different types of measures as appropriate, depending on the circumstances of the case. These include interim or definitive measures to stop and prohibit a trader’s practice, if it is considered an infringement of the law, and measures eliminating the continuing effects of the infringement . The latter could include redress orders and declaratory decisions establishing the trader's liability towards the consumers harmed by the infringements
As a rule, qualified entities should be entitled to bring representative actions seeking a redress order which obligates the trader to provide for, inter alia, compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid, as appropriate.
It is however also necessary to provide flexibility to the Member States in cases where the quantification of the harm of the consumers concerned by the representative action is complex due to the characteristics of their individual harm. In such cases, Member States will have a possibility to empower courts or administrative authorities to decide whether to issue, instead of a redress order, a declaratory decision regarding the liability of the trader towards the consumers harmed by an infringement of Union law, which may be directly relied upon in subsequent redress actions.
Such flexibility, however, should not be available in specific types of cases which are particularly prevalent in B2C mass harm situations. The first type includes cases where the consumers concerned by the same practice are identifiable and the consumers suffered comparable harm in relation to a period of time or a purchase, such as in the case of long-term consumer contracts. The second type concerns 'low-value cases' where a number of consumers have suffered such a small amount of loss that it would be disproportionate or impracticable to distribute the redress back to the consumers. Nonetheless, the infringing trader should compensate for the damages caused. The redress should therefore be directed to a public purpose to serve the collective interests of consumers.
• This proposal strikes a balance between facilitating access to justice to safeguard consumers' interests and ensuring adequate safeguards from abusive litigation. The proposed representative action model, within which qualified entities need to be designated by the Member States against minimum reputational criteria, is a strong safeguard against frivolous actions. Other Member States or the Commission will be able to raise concerns against qualified entities that have legal standing in other Member States. In redress actions qualified entities must be transparent about their source of funding in order to enable the court or administrative authority to ensure that there are no conflicts of interests or risks of abuse in a given case. Furthermore, if the representative action concludes with a settlement, the court or authority will scrutinise the legality and the fairness of that outcome to ensure that it takes into consideration the interests of all parties involved.
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