Luxembourg law does not provide for a specific horizontal class action mechanism. Traditional rules of joinder exist, and a sectoral injunctive mechanism is available in consumer and competition law.
A general joinder mechanism is available. Claims may be joined and it is possible to ask the court to rule on them together, under Article 206 of the New Code of Civil Procedure (Nouveau Code de Procédure Civile) ('NCPC'). The joining of the cases is procedural, and each claimant individually needs to have both sufficient standing (qualité d'agir) and a legitimate and direct interest (intérêt d'agir).
Collective claims are provided for in case of unfair commercial practices by Article 23 of the Law of 30 July 2002. An individual, professional group or accredited consumer association can bring the claim for the cessation of any infringement of the Law. Currently, the only entity which has been allowed to file a group action is the ULC ('Union Luxembourgeoise des Consommateurs'), which is financially assisted by the State. Third-party funding is unknown in Luxembourg, however no legal or regulatory provisions prohibits a third party from funding a claim.
The consumer group action is a summary proceeding to obtain an injunction. The cessation of the infringement may be ordered even in the absence of evidence of actual loss or damage, or negligence on the part of the defendant. The Court can order any protective or interim measures to prevent a damage or put an end to a violation, and any failure to comply with the injunctions or prohibitions imposed by a final decision may be punishable by a fine. The court can encourage the parties to settle, and the parties can chose to do so at any time. However, there is no specific collective ADR mechanisms.
An injunction/sanction from the Luxembourg Competition Authority constitutes an irrefutable evidence of fault for the purpose of an individual action for compensation. However, the follow-on compensatory action cannot be collective.
As to costs, the losing party usually does not bear the legal costs: each party bears its own. However, the successful party may recover a procedural indemnity from the losing party, the amount being determined by the judge. Luxembourg law does not allow damages to be punitive or exemplary.
A specific type of representative action may be brought by a duly authorized entity to request the judicial review of an administrative decision issued by a public body. Such an action can only be brought if it is restricted to the protection of the collective interests of the organisation and does not extend to cover those of its individual members.
The current group action mechanism in Luxembourg can only aim at putting an end to the infringement. In the absence of an effective collective redress mechanism, the right to compensation and the right to access to justice remain theoretical for Luxembourg consumers.
BIICL has recently worked with the German public body, the Gesellschaft fur internationale Zusammenarbeit (GIZ) on a collective redress project....