European Union

The EU, consisting of 28 Member States (countries) for the time being, has been debating the adoption of collective/class actions for years.

Collective Redress: On June 11, 2013, the European Commission (EC), the executive arm of the EU, published a non-binding Recommendation that Member States allow collective redress litigation for consumers. The Recommendation urges the adoption of key safeguards in any collective redress regime, including restrictions on contingency fees, requiring class members to “opt-in” to a case rather than “opt-out,” and a prohibition on punitive damages. The recommendation also recognizes the need to put in place safeguards around third party litigation funding (TPLF). In 2015 the EC began evaluating Member States’ implementation of the Recommendation, and will decide in 2017 whether it will legislate further. 

Data Privacy Litigation: At the end of 2015, European negotiators agreed on a new EU data privacy law, called the "General Data Protection Regulation." The final text is expected to be put to a vote by the full European Parliament in the first half of 2016, which should be a formality. Opt-out class actions are explicitly excluded from the law. Instead, filing a damages action on behalf of someone else can only happen (1) when there is a specific mendate from the relevant data subjects (opt-in), and (2) only where such actions are permitted in individual member states. Consumers or trade associations will also need to meet a list of requirements in order to bring an action. If the regulation passes, full compliance will be required in 2018. 

Antitrust Litigation: In April 2014, the European Parliament adopted a Competition Damages Directive issued by the EU antitrust regulatory agency, DG COMP, without the inclusion of any language on collective redress, which means that binding EU legislation requiring Member States to introduce collective actions will not be introduced at this time. While the proposal does not allow collective redress, EU member states could adopt antitrust collective redress systems at the national level, as England & Wales have done. The Directive also attempts to align member states’ legal systems by proposing common rules regarding discovery, limitation periods, the circumstances under which leniency documents should be handed over in litigation, joint and several liability for infringers, and other features. 

Alternative Dispute Resolution (ADR): In March 2013, the European Parliament approved legislative proposals encouraging the use of ADR (for example, mediation or arbitration) for consumer disputes. ADR mechanisms present a viable alternative to class actions for resolving disputes.