Merricks v Mastercard Inc : Collective Actions Re-invigorated...
Collective redress in consumer cases is available in most EU States, although the scope of such procedures varies. Some States have collective redress mechanisms that are specifically designed for consumer cases (for examples, see Germany, Italy or France), whilst others have a general procedure that is available for various types of claims, including consumer claims (e.g. Poland, Portugal or the Netherlands). The available remedies range from injunctive relief to skimming off of profits or compensation.
Broadly speaking, the available mechanisms are split between different forms: individually led collective redress (where a member of a group of consumers brings a claim on behalf of the group); and claims brought by a specific body, such as a consumer ombudsman (e.g. in Sweden) or an association acting on behalf of the consumers, either in form of a representative action aiming at injunctive relief or on the basis of assigned damages claims of the consumers. The provisions on consumer collective redress partly overlap with the area of unfair competition (e.g. as to the protection against unfair commercial practices).
In respect of individually led collective redress procedures, the broad similarities between different EU States are that: the individual representing the group must have a direct interest in the action; claims that form part of the collective action must seek the same result and arise out of homogenous facts; collective redress in the area of consumer protection is mostly based on an 'opt-in' principle (i.e. an express agreement is required to be represented in respect of your claim). The situation is different where a country follows a general opt-out mechanism which also covers consumer claims (e.g. Portugal, the Netherlands). With respect to individually led collective redress procedures, the national systems vary as to the way in which the awarded compensation is distributed amongst the class. In some States it is evenly distributed (e.g. Poland), and in others individual loss is considered (e.g. Italy).
In respect of procedures enabling an association to bring a collective claim, the broad similarities are that only certain designated and listed associations have standing (e.g. Germany or Italy). The procedures are either based on an opt-in, where claims are assigned; or the associations are given an own right to sue the defendant in view of controlling his market behaviour; or the national law gives the associations standing to represent the consumers in court without the need of assigning their claims. There are varying levels of detail and complexity as to the ways in which collective consumer claims may be brought.
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