On Thursday 6 December, Parliament's Legal Affairs Committee will vote on the proposal for a collective redress mechanism for the protection of consumers' collective interests, on the basis of the report drawn up by French MEP Geoffroy Didier (EPP).
After a delay due to the Germans blocking it, the report was finally presented on 8 November at the insistence of all the political groups (except the ECR and ENL groups).
The rapporteur supports the ‘proposal for a directive on representative actions in the area of the protection of the collective interests of consumers'. Introduced in April, it aims to offer consumers, who are knowingly being cheated by large companies, the opportunity to freely access a collective redress mechanism by being represented by qualified non-profit entities, such as consumer associations or independent public authorities designated by Member States, either in front of out-of-court dispute settlement bodies or, as a last resort, before a court.
The rapporteur had, however, introduced several provisions unfavourable to consumer associations. In particular, Mr Didier wanted to reduce, as much as possible, any financing of the action by third parties (participatory financing or State) and to impose an opt-in (obligation for the consumer organisation to have a mandate from the various consumers involved in a dispute to go to court, which offers less protection than the opt-out). He warned against the risk of 'foreign shopping’, i.e. qualified entities bringing an action in a location where the law would be more favourable.
He also spoke in favour of declaratory decisions, a system in force in Germany, but one which does not constitute real collective redress (the court says that there has been an infringement, but it is up to each injured party to seek compensation before the Court). The Commission had introduced these declaratory decisions as an exception, whereas the rapporteur wanted to make them the rule.
Several compromises were negotiated at the initiative of the S&D, ELDD, Greens/EFA, GUE/NGL groups, and in respect of some points, the ALDE. The EPP has rallied behind it, but the Germans are still blocking it within this group.
Among other compromises, minimum harmonisation would be retained for consumer protection (Article 1), which would allow Member States to go further.
Scope: rights of passenger would be well covered, without exception. In addition, instead of only dealing with large-scale infringements, as the rapporteur wanted, there would only need to be two or more consumers to bring an action by being represented by qualified entities.
As regards the injunction procedure to bring infringements to an end, the opt-in or opt-out clauses would be kept, leaving Member States free to choose. The qualified entity need not have a consumer mandate. It will be up to the Member States to decide whether a warrant is required and there will be no need for a final decision from the court to stop an illegal practice.
In respect of redress measures, it will be up to the Member States to choose between the opt-in and the opt-out. The declaratory decision has been deleted.
Third-party financing of actions brought by qualified entities will be possible, provided that such financing is transparent and any conflicts of interest are avoided.
As for the amicable settlement of disputes, even if a majority of consumers are in favour of it, it will not be binding on all consumers, irrespective of what the rapporteur wanted. (Original version in French by Aminata Niang)