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Germany

Author: Eva Lein

I. Factsheet

Scope

There is no horizontal mechanism, but traditional rules on multiparty proceedings (joinder of parties, joinder of claims and stay of proceedings) can be applied across sectors.

For high value antitrust damages claims, an approach followed was a collection of claims via assignment by a single entity that brought the claim. To date there are formal hurdles to this approach.

In the areas of consumer law and unfair competition: injunctions or skimming off of profits are used to protect collective interests.

For investor claims, compensatory test case proceedings were introduced (KapMuG). The decision on liability has binding effect for plurality of individual claims which are stayed until test case is decided.

Problems/Incompatibilitieswith the Recommendation

No coherent horizontal regime

Standing

Competition and consumer law

Consumer or business associations, authorities

KapMuG

Lead plaintiff

Assignment model

Assignee of the claims

Admissibility

In KapMuG cases, a minimum participation of 10 plaintiffs is required to get test case proceedings started.

Information on Collective Redress

Information on test case proceedings is published to inform potential test case claimants.

Funding

Third party funding is available and funders are used in practice. Being a rather new phenomenon, the area remains as yet without specific regulation.

Cross Border Cases

In principle foreign claimants can participate both in injunctive proceedings in consumer-competition law and in KapMuG cases.

Expedient procedures for injunctive orders

Yes (consumer and competition law).

Problems/Incompatibilities with Recommendation principles

Lack of financial incentives for associations can hinder use of proceedings.

Efficient enforcement of injunctive orders

Yes. Sanctions under civil procedure rules apply in case of non compliance.

Opt In/Opt Out

In KapMuG cases, the approach is similar to opt-in. In addition, opt-out settlements are permitted. As these occur during KapMuG proceedings, the opt-out follows an earlier "opt-in" and does therefore not cause any common concerns related with opt-out proceedings.

Collective ADR and Settlements

Parties are encouraged to settle compensation disputes consensually under KapMuG. Special settlement provisions were introduced in 2012.

Collective Follow-on Actions

Compensatory collective redress is not dependent on a prior injunction. In investor claims under the KapMuG, proceedings end with a declaratory decision on liability which is binding for individual follow-on actions.

Interplay between injunctions and compensation across all sectors

Usually the question does not arise, as consumer redress is mostly limited to injunctions and investor claims are declaratory test case proceedings followed by individual damages claims, ie proceedings aim at compensation from the outset. In the latter case, there is an interplay between test case findings and individual damages claims.

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