Negotiators of the European Parliament and the EU Council, assisted by the Commission, made progress in their second trilogue, on Monday 2 March, on the proposal for a Directive which, for the first time, will establish minimum criteria in the European Union for offering consumers deliberately harmed by unfair practices by the same company collective redress procedures to obtain compensation, including before the courts. However, the negotiations will continue.
“This trilogue has above all enabled the negotiators to clarify their respective positions. It offers the promise of a tentative agreement for the next trilogue”, a diplomatic source told EUROPE (see EUROPE 12434/7).
The third trilogue is scheduled for 1 April (normally in Strasbourg) and the next one for 30 April, the aim being to reach a political agreement by that date.
The clarifications made by the EU Council to its position by means of technical amendments to the structures of the articles of the Directive have been recognised as technically acceptable by the Parliament.
At political level, on Article 4, which defines who can be a qualified entity empowered to represent consumers, the EU Council stressed the importance for it of distinguishing between national and cross-border representation actions. It noted that most of the rules will apply to both types of actions.
Parliament's negotiators, led by Geoffroy Didier (EPP, France), felt that this distinction could be considered, but under very strict conditions to avoid the possibility that Member States would still be given the option of not having national representation action. There is no question in Parliament's view that the EU should simply offer the consumer a purely cross-border solution. The distinction between the two is acceptable, but it wants guarantees.
As regards the transparency of the financing of qualified entities, Parliament reiterated that the retention of Article 7 was a red line, to ensure that there is no representation action financed by a competitor of the trader being brought to court. It also stressed the importance it attaches to the possibility of recovering procedural costs in the event of a victory. Article 7 is therefore a sine qua non of a global agreement. The Croatian Presidency will return to the Member States to sound them out.
The Parliament further proposes that an article of the Directive (Article 15A) should prohibit contingency fees (percentage on winnings in case of victory). The EU Council stressed that this is a matter for national law in the name of the principle of procedural autonomy. As for Article 15, Parliament wants that each Member State shall provide sufficient funding for qualified entities to ensure that they have adequate resources to be able to defend consumers. The EU Council remains more vague on the obligations of the Member States. This point therefore remains to be discussed in view of the next trilogue.
The negotiators also discussed the deadline for transposition of the Directive. The Parliament has insisted that this period should not extend beyond the current mandate. It proposes 12 months for the adoption and publication of the legislation and six months for its transposition. The EU Council provides for 30 months plus 12 months. (Original version in French by Aminata Niang)