Civil-law countries in Europe have never embraced a robust tradition of collective redress. British courts of equity once did, but their enthusiasm for modern class actions and other collective litigation dissipated in the 1800s. Across the Atlantic, the United States (US) has been a beacon for collective redress, especially class actions, which played an enormous role in that country’s civil-rights movement in the 1950s and 1960s. But most of Europe tended to look upon these procedural innovations for collective redress with disdain.
In the last 15 years or so, however, the worm has turned. In 2013, spurred by the need for efficient resolution of disputes generated by widespread consumer harms and anti-competitive practices, the European Commission recommended that the European Union (EU) Member States adopt national collective-redress mechanisms along common principles. Then, in 2020, the European Parliament and Council of the EU issued the Representative Actions Directive, which requires each Member State to adopt national laws for collective redress.
Today, class actions in Europe are a burgeoning phenomenon. In some countries, experiments with class actions seem likely to become mainstream. Hundreds of class actions have been filed in Portugal, for example, on behalf of consumers suing tech companies for data-privacy and anticompetitive claims. But the nascency of the European embrace of collective litigation calls for deeper understanding, both of the developments within individual Member States and of more generalised European perspectives on collective redress. That task is important, but herculean.
Fortunately, the four editors of Collective Litigation and Europe have ably undertaken that task by amassing a comprehensive assessment of the current state of collective litigation and redress in Europe. The volume exceeds 900 pages, with chapters on all EU Member States, EFTA States, England and Wales and Scotland, as well as perspectives from the established collective-litigation jurisdictions of Australia, Brazil, Canada, Israel, Japan and the US.
The book begins with introductory chapters that set the stage for the recent seismic changes in collective actions in Europe. The first chapter focuses primarily on chronicling how the common aims of consumer protection and pro-competitive policy transcended socio-political barriers to EU-driven reform. The second chapter offers a detailed exegesis of the Directive. Together, the two introductory chapters lay a foundation for the following country-specific chapters on Directive-inspired national law.
The national chapters that follow are primarily descriptive, but the descriptions themselves are illuminating and detailed, with careful attention to common vectors of variation, such as standing, jurisdiction, key procedures (especially opt in or opt out), available remedies, settlement, enforcement, attorney fees and case financing. Some chapters discuss important early cases interpreting or applying the new laws implementing the Directive.
Readers may find especially interesting the chapters on: Bulgaria, which has yet to comply with the Directive and whose pre-existing collective-action law allows only for cy près relief rather than monetary damages to be awarded to the complainants; Germany, with its many representative-action cases and an active Federal Supreme Court to hear them; Italy, whose introduction of the Directive into its existing collective-litigation ecosystem has created ‘a fragmentation of legislation’ (407); Poland, which was an early adopter of collective actions and whose Supreme Court has taken the lead in delineating collective-action practice through a series of important cases; and Portugal, whose unusual history of collective redress dating back to the 1990s was merely supplemented by the Directive. Of course, the chapter on England and Wales is also of interest, both because of its common-law heritage and because of prior experimentation with proceedings under Group Litigation Orders and collective litigation before the Competition Appeal Tribunal. Norway, too, is of interest because of its dual opt-in and opt-out models, and because of its cases, which include an intriguing opt-out class action brought by 180,000 investors against Den Norske Bank for misleading fund-management fees.
After surveying the European regimes, the book turns to perspectives from countries with established collective-action practices. These chapters—especially those on Australia, Canada and the US—offer a useful contrast between the cautious European approach to collective redress and the more vigorous embrace of class actions by geographically expansive, politically federal, common-law countries. Israel, too, is of interest, as a smaller country whose courts, since the adoption of class actions in 2006, have seen a dramatic expansion in the number of class actions filed, to more than 1,500 per year (857).
Finally, the book turns to a brief assessment of collective actions in light of this descriptive landscape. A final chapter by Christopher Hodges and Herbert Woopen evaluates collective redress against the goals of compensation, deterrence and vindication of rights (901) and across seven dimensions: access to justice, individual redress, speed, societal costs, volume and severity of cases, behaviour and swarm intelligence (903).
The tome is an important contribution to understanding European collective litigation and redress. As an essential reference work for future research, it provides a comprehensive and intelligible snapshot of Europe’s journey. The revelations also raise crucial questions for the next stage. How will civil-law traditions adapt to the regulatory role of collective redress? Is the onset of collective redress in Europe a symptom or a driver of deeper changes on the continent? How can a union of autonomous nations grapple with the difficult questions raised by cross-border collective actions? Do lessons from large, geographically isolated, and culturally independent common-law nations translate adequately to the European experience? Might the story of collective redress in Europe be part of a larger story of shifting power between supranational authorities and national authorities?
The concluding chapter, which opts to critique collective actions at a highly generalised, theoretical level, misses the opportunity to engage with these questions. A more fitting coda would have drawn upon the lessons revealed by the national chapters—their commonalties, divergences, successes, failures and ongoing experiments, situated within each national culture—to portend the future of collective redress in Europe, or at least to chart a path forward.
