lt seems that there is no other topic within dispute resolution that is more full of myths than "class actions" or - as Europeans prefer - "collective redress." On the one hand there is a fear of US "class actions," with their image of greedy lawyers trying aggressively to find clients who are (more or less) willing to join a class. On the other (European) hand it seems we are far away from a unified collective redress system. And the fact is that the number of cases in which a group of individuals suffer damages arising from one event or circumstance is growing.
The Austrian way of dealing with this situation is to invoke § 227 Zivilprozessordnung (Civil Procedure Act), which for over 31 years has provided plaintiffs with the ability to file lawsuits based on various claims against one defendant. Of course it was originally meant more in the sense that if your neighbor destroyed your car and accidentally also sold you an investment in shares which dropped dramatically in value because they turned out to be riskier than your neighbor promised you, you only have to sue him once. Being creative within the existing rules, therefore, the key to collective redress in Austria is "assignment," where one plaintiff (either an individual or a corporation) collects claims and brings them to court. But note: the Austrian Upper Court has ruled that the legal reasons for the claim have to be "similar." And sometimes it is quite tricky to predict what a judge will decide qualifies. If there is not enough "similarity" within the claims the judge can split the court procedure. Divide et impera!
The European Union way involves the Recommendation of the Commission on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under European Union Law (C (2013] 3539/3). This provision states that: "The Union has set itself the objective of maintaining and developing an area of freedom, security, and justice, inter alia by facilitating access to justice, as well as the objective of ensuring a high level of consumer protection." Therefore: (1) claims must be brought by an entity, with a non-pro fit character; (2) funding is required to be transparent and there may not be a conflict of interest. A competitor may not fund a collective redress action; (3) the loser-pays principle shall apply; ( 4) the claimant party shall be formed on the basis of the express consent of the person being harmed (i.e„ the Opt-in Principle); (5) any member of the claimant party shall be free to withdraw from the trial at any time; and (6) contingency fees shall be prohibited, not only for the lawyer but also for the funding party.
Private enforcement is not unified under EU law as an element of governance of capital markets. Hence there is (almost) no European approach to unifying collective redress. The emphasis of enforcement remains with national authorities.
The fact is that we need an effective procedure at EU level to clarify liability in cases where one cause of lass has an impact on a group of individuals in the same way. Once liability is clarified there can be a settlement for all the members of the group, which benefits both parties. And some EU members have found an effective solution. A good example can be found in the recent settlement with Shell in the Netherlands, for instance, where the investors received a benefit of EUR 340 million, and the defendants (more or less) were able to finalize the process and move on when the settlement was declared "absolute" for all individual members of the group who had not opted out of the group. Thus, the way forward in collective redress has to be a way that takes in consideration the interests of defendants as well as plaintiffs and stops the myths.