Activities of Gilles LEBRETON related to 2018/0089(COD)
Plenary speeches (1)
Representative actions for the protection of the collective interests of consumers (debate)
Shadow reports (1)
RECOMMENDATION FOR SECOND READING on the Council position at first reading with a view to the adoption of a directive of the European Parliament and of the Council on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC
Legal basis opinions (0)
Amendments (33)
Amendment 42 #
Proposal for a directive
Recital 1
Recital 1
(1) The purpose of this Directive is to enable qualified entities, which represent the collective interest of consumers, to seek remedy through representative actions against infringements of provisions of Union law. The qualified entities should be able to ask for stopping or prohibiting an infringement, for confirming that an infringement took place and to seek redress, such as compensation, repair or price reduction as available under national laws. In order to be able to act, qualified entities ought to obtain a mandate in advance from a minimum number of consumers (opt-in). The minimum number of consumers should be laid down by each Member State.
Amendment 63 #
Proposal for a directive
Recital 5
Recital 5
(5) Infringements that affect the collective interests of consumers often have cross-border implications. More effective and efficient representative actions available across the Union should boost consumer confidence in the internal market and empower consumers to exercise their rights.Does not affect the English version.)
Amendment 82 #
Proposal for a directive
Recital 10
Recital 10
(10) As only qualified entities can bring the representative actions, to ensure that the collective interests of consumers are adequately represented the qualified entities should comply with the criteria established by this Directive. In particular, they would need to be properly constituted according to the law of a Member State, which could include for example requirements regarding the number of members, the degree of permanence, or transparency requirements on relevant aspects of their structure such as their constitutive statutes, management structure, objectives and working methods. They should also be not for profit and have a legitimate interest in ensuring compliance with the relevant Union law. These criteria should apply to both qualified entities designated in advance and to ad hoc qualified entities that are constituted for the purpose of a specific action. Furthermore, the involvement of ad hoc associations set up as a delaying tactic is precisely what would be prevented if the latter entities had an enhanced licence.
Amendment 94 #
Proposal for a directive
Recital 12
Recital 12
(12) Since both judicial and administrative procedures may effectively and efficiently serve the protection of the collective interests of consumers it is left to the discretion of the Member States whether the representative action can be brought in judicial or administrative proceedings, or both, depending on the relevant area of law or relevant economic sector. It is also left to the discretion of Member States whether the representative action can or must be preceded by conciliation or mediation. This shall be without prejudice to the right to an effective remedy under Article 47 of the Charter of Fundamental Rights of the European Union, whereby Member States shall ensure that consumers and businesses have the right to an effective remedy before a court or tribunal, against any administrative decision taken pursuant to national provisions implementing this Directive. This shall include the possibility for the parties to obtain a decision granting suspension of enforcement of the disputed decision, in accordance with national law.
Amendment 121 #
Proposal for a directive
Recital 19
Recital 19
(19) Member States should be allowed to decide whether their court or national authority seized of a representative action for redress may exceptionally issue, instead of a redress order, a declaratory decision regarding the liability of the trader towards the consumers harmed by an infringement which could be directly relied upon in subsequent redress actions by individual consumers. This possibility should be reserved to exceptional and duly justified cases where the quantification of the individual redress to be attributed to each of the consumer concerned by. Courts or national authorities could have recourse to declaratory decisions, as a result of which the representative action is complex and it would be inefficient to carry it out within the representative action. Declaratory decisions should not be issued in situations which are not complex and in particular wher is a risk that proceedings would be extended, only on the basis of a reasoned decision. The following should be excluded from this exceptional derogation: (i) straightforward situations in which the consumers concerned are identifiable and where the consumers have suffered a comparable harm in relation to a period of time or a purchase. Similarly, declaratory decisions should not be issued where; (ii) situations in which the amount of loss suffered by each of the individual consumers is so small that individual consumers are unlikely to claim for individual redress. The court or the national authority should duly motivate its recourse to a declaratory decision instead of a redress order in a particular case.
Amendment 124 #
Proposal for a directive
Recital 20
Recital 20
(20) Where consumers concerned by the same practice are identifiable and they suffered comparable harm in relation to a period of time or a purchase, such as in the case of long-term consumer contracts, the court or administrative authority may clearly define the group of consumers concerned by the infringement in the course of the representative action. In particular, the court or administrative authority could ask the infringing tradertrader suspected of having committed an infringement to provide relevant information, such as the identity of the consumers concerned and the duration of the practice. For expediency and efficiency reasons, in these cases Member States in accordance with their national laws could consider to provide consumers with the possibility to, if expressly requested, of directly benefiting from a redress order after it was issued without being required to give their individual mandate before the redress order is issued.
Amendment 130 #
Proposal for a directive
Recital 21
Recital 21
(21) In low-value cases most consumers are unlikely to take action in order to enforce their rights because the efforts would outweigh the individual benefits. However, if the same practice concerns a number of consumers, the aggregated loss may be significant. In such cases, a court or authority may consider that it is disproportionate to distribute the funds back to the consumers concerned, for example because it is too onerous or impracticable. Therefore the funds received as redress through representative actions would better serve the purposes of theshould be competent to rule on the use of the funds resulting from an aggregate loss and to assess the need to assign them for protection ofng the collective interests of consumers and should be directed to a relevant public purpose, such as a consumer legal aid fund, awareness campaigns or consumer movementsin an appropriate and proportionate manner.
Amendment 138 #
Proposal for a directive
Recital 22
Recital 22
(22) Measures aimed at eliminating the continuing effects of the infringement may be sought only on the basis of a final decision, reasoned decision not or no longer appealable before the courts, establishing an infringement of Union law covered by the scope of this Directive harming collective interest of consumers, including a final injunction order issued within the representative action. In particular, measures eliminating the continuing effects of the infringement may be sought on the basis of final decisions of a court or administrative authority in the context of enforcement activities regulated by Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/200432. _________________ 32 OJ L 345, 27.12.2017.
Amendment 146 #
Proposal for a directive
Recital 25
Recital 25
(25) Qualified entities should be independent and fully transparent about the source of funding of their activity in general and regarding the funds supporting a specific representative action for redress in order to enable courts or administrative authorities to assess whether there may be a conflict of interest between the third party funder and the qualified entity and to avoid risks of abusive litigation as well as to assess whether the funding third party has sufficient resources in order to meet its financial commitments to the qualified entity. The information provided by the qualified entity to the court or administrative authority overseeing the representative action should enable it to assess whether the third party may influence procedural decisions of the qualified entity in the context of the representative action, including on settlements and whether it provides financing for a representative action for redress against a defendant who is a competitor of the fund provider or against a defendant on whom the fund provider is dependant. If any of these circumstances is confirmed, the court or administrative authority should be empowered to require the qualified entity to refuse the relevant funding and, if necessary, reject standing of the qualified entity in a specific case.
Amendment 148 #
Proposal for a directive
Recital 26
Recital 26
(26) Collective out-of-court settlements, mediation and/or conciliation, aimed at providing redress to harmed consumers should be encouraged both before the representative action is brought and at any stage of the representative action.
Amendment 172 #
Proposal for a directive
Recital 34
Recital 34
(34) Member States should ensure that individual actions for redress may be based on a final, reasoned decision or, exceptionally, on a final, reasoned declaratory decision issued within a representative action. Such actions should be available through expedient and simplified procedures.
Amendment 174 #
Proposal for a directive
Recital 35
Recital 35
(35) Actions for redress based on the establishment of an infringement by a final injunction order or by a final declaratory decision regarding the liability of the trader towards the harmed consumers under this Directive should not be hinderprevented by national rules on limitation periods. TIn particular, the submission of a representative action shallould have the effect of suspending or interrupting the limitation periods for any subsequent redress actions for the consumers concerned by this action.
Amendment 177 #
Proposal for a directive
Recital 36
Recital 36
(36) Representative actions for injunction orders shouldought to be treated with due procedural expediency. Injunction orders with interim effect should always be treated by way of an accelerated procedure in order to prevent any or further harm caused by the infringement.
Amendment 182 #
Proposal for a directive
Recital 38
Recital 38
(38) In order to ensure the effectiveness of the representative actions infringing traders, traders found by a final decision to have committed an infringement should face effective, dissuasive and proportionate penalties for non- compliance with a final decision issued within the representative action.
Amendment 193 #
Proposal for a directive
Recital 41
Recital 41
(41) In order to effectively tackle infringements with cross-border implications the mutual recognition of the legal standing of qualified entities designated in advance in one Member State to seek representative action in another Member State should be ensured. Furthermore, qualified entities from different Member States should be able to join forces within a single representative action in front of a single forum, subject to relevant rules on competent jurisdiction. For reasons of efficiency and effectiveness, one qualified entity should be able to bring a representative action in the name of other qualified entities representing consumers from different Member States.Does not affect the English version.)
Amendment 198 #
Proposal for a directive
Recital 44
Recital 44
(44) The objectives of this Directive, namely establishing a representative action mechanism for the protection of the collective interests of consumers in order to ensure a high level of consumer protection across the Union and the proper functioning of the internal market, cannot be sufficiently achieved by actions taken exclusively by Member States, but can rather, due to cross-border implications of representative actions, be better achieved at Union level. The Union may therefore adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.Does not affect the English version.)
Amendment 214 #
Proposal for a directive
Article 2 – paragraph 1
Article 2 – paragraph 1
1. This Directive shall apply to representative actions brought against infringements by traders of provisions of the Union law listed in Annex I that harm or may harm the collective interests of consumers. ItThose infringements are marked by their impact on a significant number of consumers under comparable conditions. This Directive shall apply to domestic and cross-border infringements, including where those infringements have ceased before the representative action has started or before the representative action has been concluded.
Amendment 230 #
Proposal for a directive
Article 3 – paragraph 1 – point 3
Article 3 – paragraph 1 – point 3
(3) ‘collective interests of consumers’ means the interests of a significant number of consumers in comparable situations that is laid down by each Member State in the light of the circumstances concerned;
Amendment 237 #
Proposal for a directive
Article 3 – paragraph 1 – point 4
Article 3 – paragraph 1 – point 4
(4) ‘representative action’ means an action for the protection of the collective interests of consumers to which the consumers concerned are not parties, but for which a significant number of consumers in comparable situations have given a mandate to bring (opt-in);
Amendment 241 #
Proposal for a directive
Article 3 – paragraph 1 – point 6
Article 3 – paragraph 1 – point 6
(6) ‘final decision’ means a reasoned decision by a Member State's court that cannot or can no longer be appealed or a reasoned decision by an administrative authority that can no longer be subject to judicial review.
Amendment 264 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point c
Article 4 – paragraph 1 – subparagraph 2 – point c
(c) it is independent and has a non- profit making character.
Amendment 285 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
2. Member States may designate a qualified entity on an ad hoc basis for a particular representative action, at its request, if it complies with the criteria referred to in paragraph 1. In that instance, an enhanced licence, in line with the relevant national legislation, shall make it possible to prevent the involvement of ad hoc associations that have been set up as a delaying tactic.
Amendment 309 #
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 1 – introductory part
Article 5 – paragraph 2 – subparagraph 1 – introductory part
Member States shall ensure that qualified entities are entitled, possibly after conciliation or mediation has failed, to bring representative actions seeking the following measures:
Amendment 317 #
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 2
Article 5 – paragraph 2 – subparagraph 2
In order to seek injunction orders, qualified entities shall not have to obtain the mandate of the individual consumers concerned or provide proofa significant number of consumers concerned (opt-in) and provide an approximate assessment of actual loss or damage on the part of the consumers concerned or. They shall not be required to provide proof of intention or negligence on the part of the trader.
Amendment 355 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
2. By derogation to paragraph 1, Member States may exceptionally empower a court or administrative authority to issue, instead of a redress order, a reasoned declaratory decision regarding the liability of the trader towards the consumers harmed by an infringement of Union law listed in Annex I, in duly justified cases where, due to the characteristics of the individual harm to the consumers concerned the quantification of individual redress is complex.
Amendment 365 #
Proposal for a directive
Article 6 – paragraph 3 – point a
Article 6 – paragraph 3 – point a
(a) consumers concerned by the infringement are identifiable and suffered comparable harm caused by the same practice in relation to a period of time or a purchase. In such cases, however, the requirement ofto obtain the mandate of thea significant number of individual consumers concerned shall not constitute a precondition tofor initiateing the action. The redress shall then be directed to the consumers concerned;
Amendment 390 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The independent qualified entity seeking a redress order as referred in Article 6(1) shall declare at an early stage of the action the source of the funds used for its activity in general and the funds that it uses to support the action. It shall demonstrate that it has sufficient financial resources to represent the best interests of the consumers concerned and to meet any adverse costs should the action fail.
Amendment 420 #
Proposal for a directive
Article 8 – paragraph 4
Article 8 – paragraph 4
4. The settlements referred to in paragraphs 1, 2 and 3 shall be subject to the scrutiny of the court or administrative authority. The court or administrative authority shall assess the legality and fairness of the settlement, taking into consideration - in the light of the national law concerned - the rights and interests of all parties, including the consumers concerned.
Amendment 422 #
Proposal for a directive
Article 8 – paragraph 5
Article 8 – paragraph 5
5. If the settlement referred to in paragraph 2 is not reached within the set time-limits by the court or administrative authority, pursuant to the national law concerned, or the settlement reached is not approved, the court or administrative authority shall continue the representative action.
Amendment 425 #
Proposal for a directive
Article 8 – paragraph 6
Article 8 – paragraph 6
6. Individual consumers concerned shall be given the possibility to accept or to refuse to be bound by settlements referred to in paragraphs 1, 2 and 3. The redress obtained through an approved settlement in accordance with paragraph 4 shall be without prejudice to any additional rights to redress that the consumers concerned may possibly have under Union or national law. However, compensation cannot be provided twice for the same instance of harm.
Amendment 445 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Member States shall ensure that an infringement harming collective interests of consumers established in a final decision of an administrative authority or a court, including a final injunction order referred to in Article 5(2)(b), is deemed as irrefutably establishing the existence of that infringement for the purposes of any other actions seeking redress before their national courts against the same trader for the same infringement, with due regard for the principle that compensation cannot be provided twice for the same instance of harm.
Amendment 451 #
Proposal for a directive
Article 10 – paragraph 3
Article 10 – paragraph 3
3. Member States shall ensure that a final declaratory decision referred to exceptionally and by way of derogation in Article 6(2) is deemed as irrefutably establishing the liability of the trader towards the harmed consumers by an infringement for the purposes of any actions seeking redress before their national courts against the same trader for that infringement. Member States shall ensure that such actions for redress brought individually by consumers are available through expedient and simplified procedures and with due regard for the principle that compensation cannot be provided twice for the same instance of harm.
Amendment 458 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. Representative actions for an injunction order in the form of an interim measure referred to in Article 5(2)(a) shall be treated by way of an accelerated fast-track procedure.