Activities of Andreas SCHWAB related to 2018/0089(COD)
Plenary speeches (1)
Representative actions for the protection of the collective interests of consumers (debate)
Amendments (56)
Amendment 38 #
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, and for confirming that an infringement took place and to seek redress, such as compensation, repair or price reduction as available under national laws.
Amendment 57 #
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.
Amendment 62 #
Proposal for a directive
Recital 11
Recital 11
Amendment 68 #
Proposal for a directive
Recital 13
Recital 13
(13) To increase the procedural effectiveness of representative actions, qualified entities should have the possibility to seek different measures within a single representative action or within separate representative actions. These measures should include interim measures for stopping an ongoing practice or prohibiting a practice in case the practice has not been carried out but there is a risk that it would cause serious or irreversible harm to consumers, measures establishing that a given practice constitutes an infringement of law and, if necessary, stopping or prohibiting the practice for the future, as well as measures eliminating the continuing effects of the infringement, including redress. If sought within a single action, qualified entities should be able to seek all relevant measures at the moment of bringing the action or first seek relevant injunctions order and subsequently and if appropriate redressdeclaratory order.
Amendment 72 #
Proposal for a directive
Recital 16
Recital 16
(16) Qualified entities should be able to seek measures aimed at eliminating the continuing effects of the infringement. These measures should take the form of a redress order obligating the trader to provide for, inter alia, compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid, as appropriate and as available under national laws.
Amendment 76 #
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 all 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 and characteristics of the damages suffered by consumers concerned.
Amendment 80 #
Proposal for a directive
Recital 19
Recital 19
Amendment 84 #
Proposal for a directive
Recital 20
Recital 20
Amendment 87 #
Proposal for a directive
Recital 21
Recital 21
Amendment 102 #
Proposal for a directive
Recital 27
Recital 27
(27) Member States may provide that a qualified entity and a trader who have reached a settlement regarding redress for consumers affected by an allegedly illegal practice of that trader can jointly request a court or administrative authority to approve it. Such request should be admitted by the court or administrative authority only if there is no other ongoing representative action regarding the same practice. A competent court or administrative authority approving such collective settlement must take into consideration the interests and rights of all parties concerned, including individual consumers. Individual consumers concerned shall be given the possibility to accept or to refuse to be bound by such a settlement.
Amendment 107 #
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 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 111 #
Proposal for a directive
Recital 31
Recital 31
(31) Ensuring that consumers are informed about a representative action is crucial for its success. Consumers should be informed of ongoing representative action, the fact that a trader's practice has been considered as a breach of law, their rights following the establishment of an infringement and any subsequent steps to be taken by consumers concerned, particularly for obtaining redress. The reputational risks associated with spreading information about the infringement are also important for deterring traders infringing consumer rights.
Amendment 116 #
Proposal for a directive
Recital 33
Recital 33
Amendment 120 #
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 specify individual items of evidence. 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 130 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Directive sets out rules enabling qualified entities to seek representative actions aimed at the protection of the collective interests of consumers, while ensuring appropriate safeguards at EU and Member State level and their consistent EU-wide application to avoid abusive litigation.
Amendment 140 #
Proposal for a directive
Article 3 – paragraph 1 – point 3
Article 3 – paragraph 1 – point 3
(3) ‘collective interests of consumers’ means the interestsgeneral interest of consumers independent of athe number of consumers concerned by the case in question;
Amendment 145 #
Proposal for a directive
Article 3 – paragraph 1 – point 6 a (new)
Article 3 – paragraph 1 – point 6 a (new)
(6 a) 'CPC entity' shall refer to the 'competent authority' as defined by Regulaiton (EU) 2917/2394 of the European Parliament and Council on Cooperation between national authorities responsbile for the enforcement of consumer protection laws.
Amendment 146 #
Proposal for a directive
Article 4 – title
Article 4 – title
4 Qualified entitiEntities qualified for Article 5 measures and entities qualified for Article 6 measures
Amendment 148 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
Member States shall ensure that representative actions canreferred to in Article 5 and in Article 6 of this Directive can only be brought by qualified entities designated, at their request, by the Member States in advance for this purpose and placed in a publicly available list. These entities shall be certified and supervised by the CPC entity.
Amendment 151 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – introductory part
Article 4 – paragraph 1 – subparagraph 2 – introductory part
Amendment 158 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point b
Article 4 – paragraph 1 – subparagraph 2 – point b
(b) it has a legitimate interest ins statutes, governance and track record demonstrate its legitimate interest in protecting consumers and ensuring that provisions of Union law covered by this Directive are complied with;
Amendment 160 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point c
Article 4 – paragraph 1 – subparagraph 2 – point c
(c) it has a non-profit making character. and a governance structure providing complete independence from third parties and ensuring that no excessive salaries or office costs or other expenses are paid just to fulfill the non-profit criterion, nor is it a vehicle for pursuing litigation for profit controlled by others;
Amendment 163 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point c a (new)
Article 4 – paragraph 1 – subparagraph 2 – point c a (new)
(c a) it has sufficient capacity in terms of human resources, and legal expertise to represent multiple claimants acting in their best interest;
Amendment 165 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point c b (new)
Article 4 – paragraph 1 – subparagraph 2 – point c b (new)
(c b) it has in place due procedures to identify, prevent and deal with conflicts of interests;
Amendment 166 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point c c (new)
Article 4 – paragraph 1 – subparagraph 2 – point c c (new)
(c c) it has existed for at least 2 years before initiating a representative action.
Amendment 167 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 a (new)
Article 4 – paragraph 1 – subparagraph 2 a (new)
CPC entities may designate an entity as a qualified entity for Article 6 measures if it complies with the following criteria: a) the entity is an independent body, appointed by and accountable to the CPC authority and tasked with protecting the interests of consumers; b) in addition to being a not-for-profit entity, the actions taken by entities for Article 6 measures must be funded exclusively from the entity's own resources without a third party funder or legal representative having a financial interest in the specific outcome of the action; c) the entity's governance structure makes clear that it serves the interests of consumers, rather than any third party, and that it has demonstrated the capacity, knowledge, experience, and ability to serve the interests of the consumers in question over a period of at least two years; d) the entity has the know-how, human and financial resources and ability to conduct the litigation in question efficiently and in the interests of consumers; e) the entity has clearly communicated any costs and risks to those consumers before acting on their behalf; f) the entity has existed for at least 4 years before initiating a declaratory action.
Amendment 170 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 3
Article 4 – paragraph 1 – subparagraph 3
Member States' CPC entities shall assess on a regular basis whether a qualified entity continues to comply with these criteria. Member States shall ensure that the qualified entity loses its status under this Directive if it no longer complies with one or more of the criteria listed in the first subparagraph.
Amendment 172 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
Amendment 177 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
Amendment 181 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
Amendment 182 #
Proposal for a directive
Article 4 – paragraph 5
Article 4 – paragraph 5
5. TWithout predjudice to the compliance by a qualified entity with the criteria referred to in paragraph 1 is without prejudlaid down in Article to the right of4, the court or administrative authority toshall examine whether the purpose of the qualified entity justifies its taking action in a specific case in accordance with Article 5(1) or Article 6(1) of this Directive.
Amendment 183 #
Proposal for a directive
Article 4 – paragraph 5 a (new)
Article 4 – paragraph 5 a (new)
5 a. Member States shall ensure that representative actions can be brought before national courts or administrative authorities by qualified entities provided that there is a direct relationship between the main objectives of the entity and the rights granted under Union law that are claimed to have been violated in respect of which the action is brought.
Amendment 185 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
Amendment 192 #
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 obtaindemonstrate that they have the mandate of at least 10 of the individual consumers concerned or, but shall not be required to provide proof of actual loss or damage on the part of the consumers concerned or of intention or negligence on the part of the trader.
Amendment 196 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. Member States shall ensure that qualified entitionly entities qualified for Article 6 measures are entitled to bring representative actions seeking measures eliminating the continuing effects of the infringement. These measures shall be sought 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)a declaratory decision regarding the liability of the trader towards the consumers harmed by an infringement of Union law listed in Annex I.
Amendment 204 #
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 are able to seek the measures eliminating the continuing effects of the infringementwhich are eligible to bring actions under Article 6 are able to seek a declaratory decision regarding the liability of the trader towards the consumers harmed by an infringement of Union law listed in Annex I together with measures referred to in paragraph 2 of this Article within a single representative action, provided the identity of all individuals seeking redress is known to the court before its judgment.
Amendment 207 #
Proposal for a directive
Article 5 – paragraph 4 a (new)
Article 5 – paragraph 4 a (new)
4 a. Member States shall ensure that the 'loser pays' principle applies for all types of representative actions.
Amendment 208 #
Proposal for a directive
Article 6 – title
Article 6 – title
Amendment 212 #
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1
Article 6 – paragraph 1 – subparagraph 1
Amendment 222 #
Proposal for a directive
Article 6 – paragraph 1 a (new)
Article 6 – paragraph 1 a (new)
1 a. Member States shall ensure that the 'loser pays' principle applies for all types of representative actions.
Amendment 224 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
Amendment 228 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
Amendment 239 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
Amendment 243 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The qualified entity seeking a redress order as referred in Article 6(1)entity qualified for Article 5 actions shall declare at an earlythe stage of the action the source of the funds used for its activity in general and the funds that it uses to support thadmissibility of the action if it uses any funds to support the representative 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 252 #
Proposal for a directive
Article 7 – paragraph 2 – point a a (new)
Article 7 – paragraph 2 – point a a (new)
(a a) to receive any direct or indirect financial benefit through the litigation process or decision;
Amendment 260 #
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 have under Union or national lawThe redress obtained through an approved settlement in accordance with paragraph 4 must be definitive and applicable to all cases involving the same practice, the same consumers and the same company.
Amendment 266 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Member States shall ensure that the court or administrative authority shall require the infringing trader to inform affected consumers at its expense about the final decisions providing for measures referred to in Articles 5 and 6, and the approved settlements referred to in Article 8, by means appropriate to the circumstance of the case and within specified time limits, including, where appropriate, through notifying all consumers concerned individually.
Amendment 269 #
Proposal for a directive
Article 9 – paragraph 2 a (new)
Article 9 – paragraph 2 a (new)
2 a. All costs the trader incurs due to the information obligation shall be at the trader's charge only to the extent that the outcome is favourable for the claimant group. Otherwise, the claimant group shall reimburse the trader for the costs.
Amendment 272 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
Amendment 275 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
Amendment 280 #
Proposal for a directive
Article 10 – paragraph 3
Article 10 – paragraph 3
3. Member States shall ensure that a final declaratory decision referred to 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.
Amendment 281 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
In accordance with national law, Member States shall ensure that the submission of a representative action as referred to in Articles 5 and 6 shall have the effect of suspending or interrupting limitation periods applicable to any redress actions for the consumers concerned, if the relevant rights are subject to a limitation period under Union or national law.
Amendment 284 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
Member States shall ensure that, at the request of a qualified entity that has presented reasonably available facts and evidence sufficient to support the representative action, and has indicated further evidence which lies in the control of the defendant, provided such information is precisely described and narrowly limited to what is proportionate, the court or administrative authority may order, in accordance with national procedural rules, that such evidence be presented by the defendant, subject to the applicable Union and national rules on confidentiality.
Amendment 289 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
Amendment 291 #
Proposal for a directive
Article 15 – paragraph 2
Article 15 – paragraph 2
2. Member States shall take the necessary measures to ensure that ithe party that loses a collective redress action reimburses necessary legal costs borne by the winning party, subject to the conditions provided for in the relevant national law. In cases where the qualified entities are required to inform consumers concerned about the ongoing representative action the related cost may be recovered from the trader if the action is successful.
Amendment 293 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Member States shall take the measures necessary to ensure that any qualified entity designated in advance in one Member State in accordance with Article 4(1) may apply to the courts or administrative authorities of another Member State upon the presentation of the publicly available list referred to in that Article. The courts or administrative authorities shall accept this list as proof of the legal standing of the qualified entity without prejudice to their right to examine whether the purpose of the qualified entity justifies its taking action in a specific case.