Activities of Richard SULÍK related to 2018/0089(COD)
Shadow opinions (1)
OPINION on the proposal for 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
Amendments (57)
Amendment 37 #
Proposal for a directive
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The Committee on Internal Market and Consumer Protection calls on the Committee on Legal Affairs, as the committee responsible, to propose rejection of the Commission proposal.
Amendment 58 #
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 legitimateQualified entities should act independently from the third parties and have a sufficient capacity in terest 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 actionms of resources to represent multiple consumers and acting in their best interest. They should also be not for profit and have a legitimate interest in ensuring compliance with the relevant Union law.
Amendment 77 #
Proposal for a directive
Recital 18
Recital 18
(18) Member States may require qualified entities to provide sufficient information to support a representative action for redress, including a description of the group of consumers concerned by an infringement and the questions of fact and law to be resolved within the representative action. The qualified entity should not be required to individually identify allAll representative collective actions should be based on an opt-in principle and affected consumers should be able to join the case by means of an opt-in up to the moment of the final judgement in the case. Any exception to this principle should be duly justified. The qualified entity should be therefore required to identify at least some of the consumers concerned by an infringement in order to initiate the action. In representative actions for redress the court or administrative authority should verify at the earliest possible stage of the proceedings whether the case is suitable for being brought as a representative action, given the nature of the infringement, such as uniformity of the claims and commonality of the measures sought, and characteristics of the damages suffered by consumers concerned.
Amendment 89 #
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 represIn such cases, Member States should consider to set up a simple mechanism for consumers to easily claim the small amount of compentsative actions would better serve the purposes of the protection of collective interests of consumers and should be directed to a relevant public purpose, such as a consumer legal aid fund, awareness campaigns or consumer movementson at the end of the representative action.
Amendment 98 #
Proposal for a directive
Recital 25
Recital 25
(25) Qualified entities should be 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 and so close an action.
Amendment 99 #
Proposal for a directive
Recital 26
Recital 26
(26) Collective out-of-court settlements 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. Member States should ensure that collective ADR schemes are available as a complementary procedure which ensures that EU consumers have access to the quality-ensured out-of-court dispute resolution systems for both domestic and cross-border contractual disputes.
Amendment 108 #
Proposal for a directive
Recital 30
Recital 30
(30) Any out-of-court settlement reached within the context of a representative action or based on a final declaratory decision should be approved upon request of at least one of the parties concerned by the relevant court or the administrative authority to ensure its legality and fairness, taking into consideration the interests and rights of all parties concerned. Individual consumers concerned shall be given the possibility to accept or to refuse to be bound by such a settlement.
Amendment 110 #
Proposal for a directive
Recital 31
Recital 31
(31) Ensuring that affected consumers are informed about a representative action is crucial for its success. Consumers should be informed of ongoing representative action, the factabout the final decisions of an injuntion order which is providing for measures and the approved settlements appropriately to the circumstances of the case. Consumers affected should be informed that a trader's practice has been considered as a breach of law by the final injunction order, their rights following the establishment of an infringement and a possibility of any subsequent steps such as a representative action to be taken by consumers concerned, particularly for obtaining redress. The. The presumtion of innocence principle and reputational risks associrelated withto spreading information about thea potential infringement are also important for deterring traders infringing consumer rightsshould be taken into account.
Amendment 121 #
Proposal for a directive
Recital 37
Recital 37
(37) Evidence is an important element for establishing whether a given practice constitutes an infringement of law, whether there is a risk of its repetition, for determining the consumers concerned by an infringement, deciding on redress and adequately informing consumers concerned by a representative action about the ongoing proceedings and its final outcomes. However, business-to-consumer relationships are characterised by information asymmetry and the necessary information may be held exclusively by the trader, making it inaccessible to the qualified entity. Qualified entities should therefore be afforded the right to request to the competent court or administrative authority the disclosure by the trader of evidence relevant to their claim or needed for adequately informing consumers concerned about the representative action, without it being necessary for them to specif. Member States shall ensure that the court or administrative authority verifies that a requested evidence is precisely iandividual items of evidence narrowly circumscribed on the basis of reasonable available facts. The need, scope and proportionality of such disclosure should be carefully assessed by the court or administrative authority overseeing the representative action having regard to the protection of legitimate interests of third parties and subject to the applicable Union and national rules on confidentiality.
Amendment 124 #
Proposal for a directive
Recital 39 a (new)
Recital 39 a (new)
(39 a) Member States should ensure that contingency fees, calculated as a percentage of the clients' net recovery, are avoided and lawyers’ remuneration and the method by which it is calculated do no create any incentive to litigation that is unnecessary from the point of view of the interest of consumers or any of the parties concerned and could prevent consumers to fully benefit from the representative action.
Amendment 125 #
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 without prejudice to the court or administrative authority right to examine ex officio which conditions for representative actions are met and whether the purpose of the qualified entity justifies their action. 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.
Amendment 154 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point a a (new)
Article 4 – paragraph 1 – subparagraph 2 – point a a (new)
(a a) has a clear objective, publically stated in its statute or other relevant governance document to act in the interest of consumers;
Amendment 155 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point a b (new)
Article 4 – paragraph 1 – subparagraph 2 – point a b (new)
(a b) has a governance structure that provides for independence from third parties and has internal procedure to prevent conflict of interest, in case of funding received from third parties;
Amendment 156 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point a c (new)
Article 4 – paragraph 1 – subparagraph 2 – point a c (new)
(a c) has a direct relationship between the main objectives of the entity and rights granted under Union law that are claimed to have been violated in respect of which the action is brought;
Amendment 157 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point a d (new)
Article 4 – paragraph 1 – subparagraph 2 – point a d (new)
(a d) has sufficient capacity in terms of financial and human resources, and legal expertise to represent multiple consumers and acting in their best interest;
Amendment 173 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
Amendment 174 #
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 and has obtained certification from a relevant public authority, responsible for oversight before filing a representative action, confirming the need and admissibility of the presentative action.
Amendment 176 #
Proposal for a directive
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
2 a. Member States shall ensure that qualified entities make their annual activity reports publicly available on their websites, on a durable medium upon request, and by any other means they consider appropriate.Those reports shall include at least the following information relating to both domestic and cross-border representative actions: (a) the number of actions launched and the types of measures referred to in Article 5 and 6 to which they related; (b) the number (the rate or percentage) of redress decisions resulting in favour of consumers and in favour of the trader and of representative actions resolved by settlement; (c) the number (the rate or percentage) of representative actions which were discontinued and, if known, the reasons for their discontinuation; (d) the average time taken to resolve a representative action or to reach settlement;
Amendment 184 #
Proposal for a directive
Article 4 a (new)
Article 4 a (new)
Article 4 a Admissibility 1. Member States shall ensure that a court or an administrative authority verifies ex officio at the earliest possible stage of proceedings cases in which conditions for representative actions are met and manifestly unfounded cases are not continued. 2. A qualified entity bringing a representative action seeking a redress order as referred to in Article 6 shall demonstrate that: a) the action is suitable for a representative action in the interest of multiple consumers; b) the claims are uniform; c) there is a commonality in the measures sought; d) there is an appropriate number of consumers affected by the measures sought by the representative action; e) seeking measures referred to in Article 6 via individual actions would create a risk of inconsistent decisions.
Amendment 193 #
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 proof of actual or predicted loss or damage on the part of the consumers concerned or of intention or negligence on the part of the trader.
Amendment 201 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. Member States shall ensure that qualified entities are entitled to bring representative actions seeking measures eliminating the continuing effects of the infringement. These measures shall be sought only on the basis of any final decision establishing that a practice constitutes an infringement of Union law listed in Annex I harming collective interests of consumers, including a final injunction order referred to in paragraph (2)(b).
Amendment 203 #
Proposal for a directive
Article 5 – paragraph 4
Article 5 – paragraph 4
Amendment 205 #
Proposal for a directive
Article 5 – paragraph 4
Article 5 – paragraph 4
4. Without prejudice to Article 4(4), Member States shall ensure that qualified entities arQualified entities shall not be able to seek the measures eliminating the continuing effects of the infringement together with measures referred to in paragraph 2 within a single representative action.
Amendment 209 #
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1
Article 6 – paragraph 1 – subparagraph 1
For the purposes of Article 5(3), Member States shall ensure that qualified entities are entitled to bring representative actions seeking a redress order, which obligates the trader to provide for, inter alia, compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid, as appropriate. AMember States shall ensure that qualified entities shall have to obtain the mandate of affected individual consumer in order to file a representative action (the “opt-in” principle). Any exception to this principle, by law or by court order, should be duly justified by reasons of sound administration of justice. However, other affected consumers shall be able to join the representative action at any time. For this reason, a Member State may require the mandate of the individual consumers concerned before a declaratory decision is made or a redress order is issued.
Amendment 217 #
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1 a (new)
Article 6 – paragraph 1 – subparagraph 1 a (new)
Member States may allow both for an opt- out and an opt-in procedure to file a representative action. It should be up to a court or an administrative authority to decide, on the basis of objective criteria, which approach is best suited for each case. Such criteria could be for example the nature of the claim, its value, and the number of potentially affected consumers.
Amendment 218 #
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1 b (new)
Article 6 – paragraph 1 – subparagraph 1 b (new)
A qualified entity could, through a single action (a model test case), obtain clarification for a multitude of consumers if cases are based on the same facts. Following a corresponding public appeal, the injured consumers could declare their claims cost-efficiently in a register of claims kept by the court (opt-in) and interrupt hereby the limitation/prescription period of their individual claims. The outcome of the test case, a declaratory judgment, should be binding for the registered consumers who could pursue after that their claims individually on the basis of the stated facts in the test case.
Amendment 219 #
Proposal for a directive
Article 6 – paragraph 1 a (new)
Article 6 – paragraph 1 a (new)
1 a. The redress resulting from a representative action shall be always allocated to affected consumers and shall not serve any other purpose.
Amendment 233 #
Proposal for a directive
Article 6 – paragraph 3 – point b
Article 6 – paragraph 3 – point b
Amendment 236 #
Proposal for a directive
Article 6 – paragraph 3 – point b
Article 6 – paragraph 3 – point b
(b) consumers have suffered a small amount of loss and it would be disproportionate to distribute the redress to them. In such cases, Member States shall ensure that the mandate of the individual consumers concerned is not required. The redress shall be directed to a public purpose serving the collective intefor which obtaining redress by an individual consumer would cause them disproportionate effort. Member States shall establish a simple mechanism on the allocation of the redrests ofor affected consumers.
Amendment 241 #
Proposal for a directive
Article 6 – paragraph 4 a (new)
Article 6 – paragraph 4 a (new)
4 a. The redress awarded should not exceed the compensation that would have been awarded if the representative action had been pursued by means of individual action. In particular, Member States shall prohibit any form of (punitive) damages that lead to the overcompensation of the consumer in relation to the damage suffered.
Amendment 249 #
Proposal for a directive
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
1 a. Member States shall ensure that in cases where a representative action for redress is funded by a third party: (a) The third party funder has a legal obligation to act in the best interest of the qualified entity (fiduciary duty); (b) The remuneration for the funder is clearly stated in the third party funding agreement to allow consumers obtain effective knowledge on the part of their redress to be paid to the funder; (c) The remuneration for the funder is based on the redress effectively paid to consumers and not on the amount claimed or awarded in the court decision or settlement; (d) The funding agreement may be subject to court scrutiny to ensure it provides fair compensation to consumers.
Amendment 253 #
Proposal for a directive
Article 7 – paragraph 2 – point b
Article 7 – paragraph 2 – point b
(b) to provide financing for a collective representative action against a defendant who is a competitor of the fund provider or against a defendant on whom the fund provider is dependant;
Amendment 255 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Member States shall ensure that courts and administrative authorities are empwhere a representative action is funded by a third party the court is allowered to assess the circumstances referred to in paragraph 2 and accordingly require the qualified entity to refuse the relevant funding and, if necessary, reject the standing of the qualified entity in a specific casestay the proceedings if: (a) There is a conflict of interests between the third party and the qualified entity and the consumers it represents; (b) The third party has insufficient resources in order to meet its financial commitments to the qualified entity; (c) The qualified entity has insufficient resources to meet any adverse costs should the representative action fail.
Amendment 273 #
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 thatr non existence of an infringement for the purposes of any other actions seeking redress before their national courts against the same trader for the same infringementfacts.
Amendment 285 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
Member States shall ensure that, at the request of a qualified entityone of the parties that has presented reasonably available facts and evidence sufficient to support the representative actionhis views, and has indicated further evidence which lies in the control of the defendantother party, the court or administrative authority may order, in accordance with national procedural rules, that such evidence be presented by the defendantis party, subject to the applicable Union and national rules on confidentiality.
Amendment 286 #
Proposal for a directive
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
Member States shall ensure that the court or administrative authority verifies that a requested evidence is circumscribed as precisely and as narrowly as possible on the basis of reasonable available facts, and that the disclosure is limited to that which is proportionate taking into account the scope and costs of disclosure, and whether the disclosure would include confidential information.
Amendment 287 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Article 13 a Legal representation and lawyers’ fees 1. Member States shall ensure that the lawyers’ remuneration and the method by which it is calculated do no create any incentive to litigation that is unnecessary from the point of view of the interest of any of the parties. 2. Member States shall in principle not permit contingency, fees calculated as a percentage of the clients' net recovery, which risk creating such an incentive. The Member States that allow for contingency fees shall ensure that such fees do not prevent obtaining full compensation by consumers.
Amendment 300 #
Proposal for a directive
Annex I – point 6
Annex I – point 6
Amendment 301 #
Proposal for a directive
Annex I – point 16
Annex I – point 16
Amendment 302 #
Proposal for a directive
Annex I – point 21
Annex I – point 21
Amendment 303 #
Proposal for a directive
Annex I – point 22
Annex I – point 22
Amendment 304 #
Proposal for a directive
Annex I – point 23
Annex I – point 23
Amendment 305 #
Proposal for a directive
Annex I – point 24
Annex I – point 24
Amendment 306 #
Proposal for a directive
Annex I – point 27
Annex I – point 27
Amendment 307 #
Proposal for a directive
Annex I – point 34
Annex I – point 34
Amendment 308 #
Proposal for a directive
Annex I – point 37
Annex I – point 37
Amendment 309 #
Proposal for a directive
Annex I – point 40
Annex I – point 40
Amendment 310 #
Proposal for a directive
Annex I – point 41
Annex I – point 41
Amendment 311 #
Proposal for a directive
Annex I – point 42
Annex I – point 42
Amendment 312 #
Proposal for a directive
Annex I – point 43
Annex I – point 43
Amendment 313 #
Proposal for a directive
Annex I – point 48
Annex I – point 48
Amendment 314 #
Proposal for a directive
Annex I – point 49
Annex I – point 49
Amendment 315 #
Proposal for a directive
Annex I – point 50
Annex I – point 50
Amendment 316 #
Proposal for a directive
Annex I – point 52
Annex I – point 52
Amendment 317 #
Proposal for a directive
Annex I – point 54
Annex I – point 54
Amendment 318 #
Proposal for a directive
Annex I – point 56
Annex I – point 56
Amendment 319 #
Proposal for a directive
Annex I – point 57
Annex I – point 57