125 Amendments of Eva MAYDELL related to 2018/0089(COD)
Amendment 44 #
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 in the cross-border cases, to seek remedy through representative actions against widespread cross-border infringements of provisions of Union law. The qualified entitie, which are common to at least 100 consumers in at least 2 Member States. The qualified entities that have received specific and exclusive mandates from consumers 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.
Amendment 59 #
Proposal for a directive
Recital 4
Recital 4
(4) It is important to ensure the necessary balance between access to justice and procedural safeguards against abusive litigation which could unjustifiably hinder the ability of businesses to operate in the Single Market. To prevent the misuse of representative actions, elements such as punitive damages and the absence of limitations as regards the entitlement to bring an action on behalf of the harmed consumers should be avoided and clear rules on various procedural aspects, such as the designation of qualified entities, the origin of their funds and nature of the information required to support the representative action, should be laid down. This Directive should not affect national rules concerning the allocation of procedural costs.
Amendment 73 #
Proposal for a directive
Recital 7
Recital 7
(7) The Commission has adopted legislative proposals for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air30 and for a Regulation of the European Parliament and of the Council on rail passengers' rights and obligations.31 It is therefore appropriate to provide that, onetwo years after the entry into force of this Directivee mentioned revised regulations, the Commission assesses whether the Union rules in the area of air and rail passengers' rights offer an adequate level of protection for consumers, comparable to that provided for in this Directive, and draws any necessary conclusions as regards the scope of this Directive. _________________ 30 COM(2013) 130 final. 31 COM(2017) 548 final.
Amendment 75 #
Proposal for a directive
Recital 8
Recital 8
(8) Building on Directive 2009/22/EC, tThis Directive should cover both domestic and cross- border infringements, in particular when consumers concerned by an infringement live in one or several Member States other than the Member State where the infringing trader is established. It should also cover infringements which ceased before the representative action started or concluded, since it may still be necessary to prevent the repetition of the practice, establish that a given practice constituted an infringement and facilitate consumer redress.
Amendment 78 #
Proposal for a directive
Recital 9
Recital 9
Amendment 80 #
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 actionFurthermore, the qualified entity must be independent of third parties and have sufficient capacity in terms of financial resources, human resources, and legal expertise to represent multiple consumers acting in their best interest. The qualified entity must also have an established procedure to prevent conflict of interests, and it must publish an annual activity report. In particular, in order to ensure sufficient transparency the annual activity report should include at a minimum information about the number of actions launched and the types of injunctions and redress measures sought, the number of redress decisions in favour of consumers and the trader, and or the actions resolved by settlement, the number of representative actions which have been discontinued and the reasons behind it. Member States may require additional information to be provided in the annual activity report.
Amendment 92 #
Proposal for a directive
Recital 11
Recital 11
(11) IOnly independent public bodies and consumer organisations in particular should play an active role in ensuring compliance with relevant provisions of Union law and are all well placcan be allowed to act as qualified entities. Since these entities have access to different sources of information regarding traders' practices towards consumers and hold different priorities for their activities, Member States should be free to decide on the types of measures that may be sought by each of these qualified entities in representative actions.
Amendment 99 #
Proposal for a directive
Recital 14
Recital 14
(14) Injunction orders aim at the protection of the collective interests of consumers independently of any actual loss or damage suffered by individual consumers. Injunction ordersand may require traders to take specific action, such as providing consumers with the information previously omitted in violation of legal obligations. Decisions establishing that a practice constitutes an infringement should not depend on whether the practice was committed intentionally or by negligence.
Amendment 110 #
Proposal for a directive
Recital 18
Recital 18
(18) Member States mayshould 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. In particular, the claims should be ascertainable and uniform and there should be a commonality in the measures sought, the action should represent at least 100 individual consumers from at least two Member States, a representative action should be the most suitable way to bring forward the claims in the interest of multiple consumers, in particular if seeking redress measures by the individual consumers would create a risk of inconsistent decisions, individual consumers should be able to be identified and informed of the representation action in an adequate way, any third-party funding arrangement of the qualified entity should be suitable and fair, in particular the remuneration for the funder should be clearly stated and based on the redress effectively paid to consumers and not on the amount claimed or awarded by the court or settlement. Member States should also ensure that the court or administrative authority has the authority to dismiss manifestly unfounded cases at the earliest possible stage of litigation.
Amendment 120 #
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 duly justifiedmay in particular be applied to cases where the quantification of the individual redress to be attributed to each of the consumer concerned by 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 where 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 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 122 #
Proposal for a directive
Recital 20
Recital 20
Amendment 127 #
Proposal for a directive
Recital 21
Recital 21
Amendment 142 #
Proposal for a directive
Recital 24
Recital 24
(24) This Directive concerns only cross- border cases and does not replace existing national collective redress mechanisms. Taking into account their legal traditions, it leaves it to the discretion of the Member States whether to design the representative action set out by this Directive as a part of an existing or future collective redress mechanism or as an alternative to these mechanisms, insofar as the national mechanism complies with the modalities set by this Directive.
Amendment 144 #
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 parqualified entity has sufficient resources in order to meet its financial commitments to the qualified entityobligations should the action fail. The information provided by the qualified entity at the earliest stage of the proceeding to the court or administrative authority overseeing the representative action should enable it to assess whether theany third party may influence procedural decisions of the qualified entity in general and 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 shouldmust 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. or stay proceedings. Member States should provide that where third party funding is permitted and in order to avoid the risks of abusive litigation Member States should be able to implement a licencing system through a public authority by which third party funders are licensed and subject to strict professional obligations and registered in a public registry for funders. Where such systems exist, Member States should ensure that third party funders have a legal obligation to act in the best interest of the qualified entity and the consumers it represents (fiduciary duty). Furthermore, Member States should prohibit third party funders and law firms from establishing qualified entities, law firms from owning third party funders and vice versa, and third party funders from basing remuneration on the settled or awarded compensation.
Amendment 151 #
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 settlementSettlements should be final and binding for all the concerned consumers.
Amendment 153 #
Proposal for a directive
Recital 28
Recital 28
(28) The court and administrative authority should have the power to invite the infringing trader and the qualified entity which brought the representative action to enter into negotiations aimed at reaching a settlement on redress to be provided to consumers concerned. The decision of whether to invite the parties to settle a dispute out-of-court should take into account the type of the infringement to which the action relates, the characteristics of the consumers concerned, the possible type of redress to be offered, the willingness of the parties to settle, in particular any actions with an impact on the procedural costs and on the legal fees to be borne by the parties, the impact on any funding arrangements and the compensation to be effectively paid to consumers, and the expediency of the procedure.
Amendment 158 #
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 settlementThe settlement precludes any additional individual or collective rights for redress of consumers that have specifically and exclusively mandated the collective action.
Amendment 162 #
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 167 #
Proposal for a directive
Recital 32
Recital 32
(32) To be effective, the information should be adequate and proportional to the circumstances of the case. The infringing trader shouldMember States should ensure that the court or the administrative authority may require the defeated party to adequately inform all consumers concerned of a final decision concerning injunction and redress orders issued within the representative action, as well and both parties in cases of a settlement approved by a court or administrative authority. Such information may be provided for instance on the trader's website, social media, online market places, or in popular newspapers, including those distributed exclusively by electronic means of communication. If possible, consumers should be informed individually through electronic or paper letters. This information should be provided in accessible formats for persons with disabilities upon request.
Amendment 170 #
Proposal for a directive
Recital 33
Recital 33
(33) To enhance legal certainty, avoid inconsistency in the application of Union law and to increase the effectiveness and procedural efficiency of representative actions and of possible follow-on actions for redress, the finding of an infringement or a non-infringement established in a final decision, including a final injunction order under this Directive, issued by an administrative authority or a court should not be relitigated in subsequent legal actions related to the same infringement or non-infringement by the same trader as regards the nature of the infringement or non-infringement and its material, personal, temporal and territorial scope as determined by that final decision. Where an action seeking measures eliminating the continuing effects of the infringement, including for redress, is brought in a Member State other than the Member State where a final decision establishing this infringement or non-infringement was issued, the decision should constitute a rebuttable presumption that the infringement has occurredmay be considered as evidence that the infringement has or has not occurred in related cases.
Amendment 173 #
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 hindered by national rules on limitation periods. The submission of a representative action shall have the effect of suspending or interrupting the limitation periods for any redress actions for the consumers concerned by this, who have given their specific and exclusive mandate to a qualified entity to be represented in such an action.
Amendment 178 #
(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 either the trader, making it inaccessible to the qualified entity. Qualified enti or the qualified entity, or the consumers it represents, making it inaccessible to the other party. The parties should therefore be afforded the right to request, upon presenting a substantiated explanation 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 evidenceother party of specific and clearly defined evidence relevant to their claim. 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. Member States should ensure that the court or administrative authority verify that the requested evidence is narrowly and precisely circumscribed based on reasonable and available facts. In particular, the court or the administrative authority should assess the relationship between the claim or defence and the requested evidence, the scope and cost of the disclosure, and whether the evidence sought contains any confidential or privilege information protected under relevant national laws.
Amendment 183 #
Proposal for a directive
Recital 39
Recital 39
(39) Having regard to the fact that representative actions pursue a public interest by protecting the collective interests of consumers, Member States should ensure that qualified entities are not prevented from bringing representative actions under this Directive because of the costs involved with the procedures. However, subject to the relevant conditions under national provisions, this should be without prejudice to the fact that the party that loses a representative action reimburses necessary legal costs borne by the winning party (‘loser pays principle’). The unsuccessful party should bear the costs of the proceedings. However, the court or administrative authority should not award costs to the successful party to the extent that they were unnecessarily incurred or are disproportionate to the claim.
Amendment 186 #
Proposal for a directive
Recital 39 a (new)
Recital 39 a (new)
(39a) Member States should ensure that contingency fees 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. The Member States that allow for contingency fees should ensure that such fees do not prevent obtaining full compensation by consumers.
Amendment 190 #
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, provided that qualified entities can demonstrate the relevant accreditation of their standing issued in the country of their domicile. 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 that have given a specific and exclusive mandate for bringing the specific action.
Amendment 204 #
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 at the same time ensuring appropriate safeguards to avoid abusive litigation.
Amendment 206 #
Proposal for a directive
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Directive shall not prevent Member States from adopting or maintaining in force provisions designed to grant qualified entities or any other persons concerned other procedural means to bring actions aimed at the protection of the collective interests of consumers at national level, provided that these procedural means contain at least equivalent binding safeguards and mechanisms as those set out in this Directive.
Amendment 218 #
Proposal for a directive
Article 2 – paragraph 1
Article 2 – paragraph 1
1. This Directive shall apply to representative actions brought against widespread infringements by traders of provisions of the Union law listed in Annex I that harm or may harm the collective interests of consumers. It 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 222 #
Proposal for a directive
Article 2 – paragraph 3
Article 2 – paragraph 3
3. This Directive is without prejudice to the Union rulePursuant to Article 4(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments oin private international law, in particular rules related to court jurisdiction and applicable lawcivil and commercial matters, for actions taken pursuant to this Directive, traders domiciled in a Member State shall, wherever the infringement took place, be sued in the courts of that Member State.
Amendment 229 #
Proposal for a directive
Article 3 – paragraph 1 – point 3
Article 3 – paragraph 1 – point 3
(3) ‘collective interests of consumers’ means the common interests of a number of consumert least 100 consumers in at least two Member States;
Amendment 236 #
Proposal for a directive
Article 3 – paragraph 1 – point 3 a (new)
Article 3 – paragraph 1 – point 3 a (new)
(3a) ‘widespread infringement’ means any acts or omissions contrary to Union laws that protect consumers’ interests that have done, do or are likely to do harm to the collective interests of consumers and that have common features, including the same unlawful practice, the same interest being infringed and that are occurring concurrently, and are committed by the same trader;
Amendment 238 #
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 and to which they gave the qualified entity their specific and exclusive mandates;
Amendment 250 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
Member States shall ensure that representative actions can only be brought by qualified entities designatedthat have been granted accreditation, at their request, by the Member States in advance for this purpose and placed in a publicly available list.
Amendment 253 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – introductory part
Article 4 – paragraph 1 – subparagraph 2 – introductory part
Member States shall designate an entity as qualified entity if it complies with all of the following criteria:
Amendment 255 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point a
Article 4 – paragraph 1 – subparagraph 2 – point a
(a) it is properly constituaccredited according to the law of a Member State and exists for more than four years;
Amendment 257 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point b
Article 4 – paragraph 1 – subparagraph 2 – point b
(b) its statues, objectives, governance and history of protecting consumers demonstrate that it has a legitimate interest in ensuring that provisions of Union law covered by this Directive are complied with;
Amendment 262 #
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.is financially and functionally autonomous, has a non-profit making character and has no structural or contractual links with lawyers, funders, or other private entities that may benefit financially from any actions it may pursue;
Amendment 267 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point c b (new)
Article 4 – paragraph 1 – subparagraph 2 – point c b (new)
(cb) it has sufficient capacities in terms of financial resources, human resources, and legal expertise to represent multiple consumers acting in their best interest;
Amendment 268 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point c a (new)
Article 4 – paragraph 1 – subparagraph 2 – point c a (new)
(ca) it has established internal procedures to prevent a conflict of interest between itself and its funders and the consumers it represents;
Amendment 274 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point c c (new)
Article 4 – paragraph 1 – subparagraph 2 – point c c (new)
(cc) it has at least 10 member associations with the same area of interest or at least 350 natural person as members.
Amendment 276 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 3
Article 4 – paragraph 1 – subparagraph 3
Member States shall assess on a regular basis whether a qualified entity continues to comply with these criteria. Member States shall ensure that the qualified entity submit an annual activity report, and that the entity loses its status under this Directive if it no longer complies with one or moreany of the criteria listed in the first subparagraph.
Amendment 283 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
Amendment 288 #
Proposal for a directive
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
2a. Member States shall communicate the name and purpose of these designated entities to the European Commission. The Commission will draw up a list of the qualified entities referred to in paragraph 1 and publish it in the Official Journal of the European Union.
Amendment 292 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. Member States shall ensure that in particularonly consumer organisations and independent public bodies meeting the criteria listed in paragraph 1 are eligible for the status of qualified entity. Member States may designate as qualified entities consumer organisations that represent members from more than one Member State.
Amendment 301 #
Proposal for a directive
Article 4 – paragraph 5
Article 4 – paragraph 5
5. TWithout prejudice to the compliance by a qualified entity with the criteria referred to in paragraph 1 is without prejudice to the right of, 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 4a(new) and 5(1).
Amendment 303 #
Proposal for a directive
Article 4 a (new)
Article 4 a (new)
Article 4a Admissibility Member States shall ensure that the court or administrative authority verify at the earliest possible stage of the proceedings that the representative action fulfils the following criteria: (a) the action is the most suitable way to resolve the claims of multiple consumers; (b) the claims are ascertainable and uniform and there is a commonality in the measures sought; (c) at least 100 consumers in 2 Member States are affected and have provided their specific and exclusive mandate; (d) the individual consumers can be identified and informed of the representative action in an adequate way; (e) the funding arrangements of the qualified entity are suitable; (f) no other action has been brought before a court or administrative authority regarding the same practice, the same trader and the same consumers. Member States shall ensure that the court or administrative authority have the authority to dismiss manifestly unfounded cases at the earliest possible stage of litigation.
Amendment 308 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Member States shall ensure that representative actions can be brought before national courts or administrative authorities only by qualified entities accredited in accordance with Article 4(1) and 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 310 #
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 to bring representative actions seeking the following measures: if necessary to avoid serious and irreparable harm:
Amendment 313 #
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 1 – point a
Article 5 – paragraph 2 – subparagraph 1 – point a
(a) an injunction order as an interim measure for stopping theillegal practice or, if the practice has not yet been carried out but is imminent, prohibiting the illegal practice;
Amendment 318 #
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 loss or damage on the part of the consumers concerned or of intention orprovide proof that a widespread infringement has occurred or of the intention to infringe or of negligence on the part of the trader.
Amendment 323 #
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 effectsa declaratory decision regarding the liability of the trader towards the consumers harmed by an infringement of Union law listed in Annex I 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, includingafter the adoption of a final injunction order referred to in paragraph (2)(b).
Amendment 335 #
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. AIn all such cases Member State mays shall require the mandate of the individual consumers concerned before a declaratory decision is made or a redress order is issuedspecific and exclusive mandate of at least 100 individual consumers concerned in at least 2 Member States before an action seeking a redress order may be initiated, and others joining the action may do so only upon presentation of an exclusive mandate, and up to the point of the first hearing of the substantive issue at the latest.
Amendment 348 #
The qualified entity shall provide sufficient informationevidence and facts as required under national law to support the action, including a descriptionlist of the consumers concerned bymandating the action and the questions of fact and law to be resolved.
Amendment 362 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
Amendment 374 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
4. The redress obtained through a final decision in accordance with paragraphs 1, 2 and 3 shall be without prejudice to2 shall exclude any additional rights to redress that the consumers concerned may have under Union or national law regarding the same trader and regarding the same infringement.
Amendment 379 #
Proposal for a directive
Article 6 – paragraph 4 a (new)
Article 6 – paragraph 4 a (new)
4a. The damages should be restitution in nature. 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 should prohibit any form of punitive damages that lead to the overcompensation of the consumer in relation to the damage actually suffered.
Amendment 382 #
Proposal for a directive
Article 7 – title
Article 7 – title
Funding, Fees for Lawyers and Intermediaries and Costs
Amendment 385 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. TIn accordance with Article 4(1), the qualified entity seeking a redress order as referred in Article 6(1) shall declare at ansubmit to the court or administrative authority at the earlyiest stage of the action thea complete financial overview, listing all sources 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 394 #
Proposal for a directive
Article 7 – paragraph 2 – introductory part
Article 7 – paragraph 2 – introductory part
2. Member States shall ensure that in cases where a representativprohibit qualified entities from receiving any part of the financing of the actions for redress is funded by a third party, it is prohibited for theeseen by Articles 5 and 6 from commercial third party: funders.
Amendment 397 #
Proposal for a directive
Article 7 – paragraph 2 – point a
Article 7 – paragraph 2 – point a
Amendment 399 #
Proposal for a directive
Article 7 – paragraph 2 – point b
Article 7 – paragraph 2 – point b
Amendment 406 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Member States shall ensure that courts and administrative authorities are empowered to assess the circumstances referred to in paragraph 2 and accordingly require the qualified entity to refuse the relevant fundingand obliged to assess whether the provisions in paragraph 2 and 4 are being met and review the proportionality and fairness to consumers of any compensation paid to third parties, lawyers and, if necessary, reject the standing of the qualified entity in a specific case.
Amendment 412 #
Proposal for a directive
Article 7 – paragraph 3 a (new)
Article 7 – paragraph 3 a (new)
3a. Neither lawyers nor other parties assisting or representing qualified entities, or assisting consumers as intermediaries, shall charge fees based on a proportion of any award or settlement amount.
Amendment 413 #
Proposal for a directive
Article 7 – paragraph 3 b (new)
Article 7 – paragraph 3 b (new)
3b. Member States shall ensure that where adverse costs are awarded against a party, any third parties that have supported the action shall also be responsible for those costs on a joint and several basis.
Amendment 414 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Member States may provide that a qualified entity and a trader who have reached a settlement regarding redress for consumers who have chosen to be represented in the action and who have been affected by an allegedly illegal practice of that trader can jointly request a court or administrative authority to approve it. Such a request should be admitted by the court or administrative authority only if there is no other ongoing representative action in front of the court or administrative authority of the same Member StateOnce approved, the settlement reached shall be binding and preclude any additional individual or collective rights for redress of consumers that have specifically and exclusively mandated the collective action regarding the same trader and regarding the same practice.
Amendment 419 #
Proposal for a directive
Article 8 – paragraph 3
Article 8 – paragraph 3
3. Member States shall ensure that the court or administrative authority that issueds the final declaratory decision referred to in Article 6(21) is empowered to request the parties to the representative action to reach within a reasonable set time limit and before a final decision is taken a settlement regarding the redress to be provided to consumers on the basis of this final decisthat have specifically and exclusively mandated the collective action.
Amendment 423 #
Proposal for a directive
Article 8 – paragraph 6
Article 8 – paragraph 6
Amendment 435 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Where a settlement or final decision may benefit consumers who may be unaware of it, Member States shall ensure that the court or administrative authority shallmay require the infringing trader to inform affected consumersdefeated party or both parties in case of a settlement, to publish 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 443 #
Proposal for a directive
Article 9 – paragraph 2 a (new)
Article 9 – paragraph 2 a (new)
2a. Member States shall ensure that public communications by qualified entities about claims are factual and take into account both the right for consumers to receive information and Defendants’ reputational rights and rights to business secrecy.
Amendment 446 #
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 or non-existence of that infringement for the purposes of any other actions seeking redress before their national courts against the same trader for the same infringementfacts.
Amendment 449 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
2. Member States shall ensure that a final decision referred to in paragraph 1, taken in another Member State is consideredshould be included in the file for relevant cases by their national courts or administrative authorities as a rebuttable presumption that an infringement has occurred. It may be considered as evidence in related cases.
Amendment 454 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
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, who have given a specific and exclusive mandate to a qualified entity to be represented in such an action, if the relevant rights are subject to a limitation period under Union or national law.
Amendment 459 #
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 action, sufficient evidence and a substantive explanation to support its views, and has indicated further specific and clear defined 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 463 #
Proposal for a directive
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
Amendment 466 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Member States shall lay down the rules on penalties applicable to non- compliance with the final decisions issued within thensure that the party that loses a collective repdresentative action and shall take all necessary measures to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasives action reimburses necessary legal costs borne by the winning party (‘loser pays principle’), subject to the conditions provided for in the relevant national law.
Amendment 467 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
Amendment 469 #
Proposal for a directive
Article 14 – paragraph 3
Article 14 – paragraph 3
Amendment 471 #
Proposal for a directive
Article 14 – paragraph 4
Article 14 – paragraph 4
Amendment 472 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
1. Member States shall be encouraged – in line with Article 7(1) – to ensure that qualified entities have sufficient funds available for representative actions. They may take the necessary measures to ensure that procedural costs related to specific representative actions do not constitute financial obstacles for qualified entities to effectively exercise the right to seek the measures referred to in Articles 5 and 6, such as limiting applicable court or administrative fees, granting them access to legal aid where necessary, or by providing them with public funding for this purpose. In any case, qualified entities shall bear a reasonably high share of resulting costs.
Amendment 481 #
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 designaaccredited 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. THowever, the courts or administrative authorities shall accept this list as proof ofreview the legal standing of the qualified entity without prejudice to their right toby examineing whether the purpose of the qualified entity justifies its taking action in a specific case.
Amendment 482 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. Member States shall ensure that where the infringement affects or is likely to affect consumers from different Member States the representative action may be brought to the competent court or administrative authority of a Member State by several qualified entities from different Member States, acting jointly or represented by a single qualified entity, for the protection of the collective interest of consumers from different Member States, who have given a specific and exclusive mandate to a qualified entity to be included in such an action. In such circumstances, a consolidated list of all consumers who have given such a specific and exclusive mandate and who are presented will be provided to the court or administrative authority and the defendant at the beginning of an action.
Amendment 484 #
Proposal for a directive
Article 16 – paragraph 3
Article 16 – paragraph 3
Amendment 485 #
Proposal for a directive
Article 16 – paragraph 4
Article 16 – paragraph 4
4. If a Member State or, the Commission or the trader raises concerns regarding the compliance by a qualified entity with the criteria laid down in Article 4(1), the Member State that designated that entity shall investigate the concerns and, where appropriate, revoke the designation if one or more of the criteria are not complied with.
Amendment 486 #
Proposal for a directive
Article 16 – paragraph 4 a (new)
Article 16 – paragraph 4 a (new)
4a. Qualified entities shall be required to be accredited in the Member State of their principal place of business and activity. Furthermore, Member States shall facilitate the transfer of accreditations where appropriate, subject always to compliance with any criteria applicable in the Member State to which the qualified entity transfers.
Amendment 487 #
Proposal for a directive
Article 16 – paragraph 4 b (new)
Article 16 – paragraph 4 b (new)
4b. To avoid parallel actions or actions risking irreconcilable judgments, pursuant to Article 30 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council, where related actions are pending in the courts of different Member States, any court other than the court first seized may stay its proceedings.
Amendment 493 #
Proposal for a directive
Article 18 – paragraph 2
Article 18 – paragraph 2
2. After two years after the entry into force of the revised rules on air and rail passenger rights, the Commission shall assess whether they offer a level of protection of the rights of consumers comparable to that provided for under this Directive. Where that is not the case, the Commission shall evaluate the necessity to make appropriate proposals, which may consist in particular in introducing the acts referred to above in the Annex I of this Directive as defined in Article 2. No later than one year after the entry into force of this Directive, the Commission shall assess whether the rules con air and rail passenger rightscerning the rights of passengers in bus and coach transport and of passengers when travelling by sea and inland waterway offer a level of protection of the rights of consumers comparable to that provided for under this Directive. Where that is not the case, the Commission intendsshall evaluate the necessity to make appropriate proposals, which may consist in particular in removintroducing the acts referred to in points 10 and 15 of Annex I from the scope of applicationabove in the Annex I of this Directive as defined in Article 2.
Amendment 497 #
Proposal for a directive
Annex I – subheading 1
Annex I – subheading 1
LIST OF PROVISIONS OF CONSUMER UNION LAW REFERRED TO IN ARTICLE 2(1)
Amendment 498 #
Proposal for a directive
Annex I – point 1
Annex I – point 1
Amendment 499 #
Proposal for a directive
Annex I – point 7
Annex I – point 7
Amendment 500 #
Proposal for a directive
Annex I – point 10
Annex I – point 10
Amendment 501 #
Proposal for a directive
Annex I – point 13
Annex I – point 13
Amendment 502 #
Proposal for a directive
Annex I – point 15
Annex I – point 15
Amendment 503 #
Proposal for a directive
Annex I – point 18
Annex I – point 18
Amendment 504 #
Proposal for a directive
Annex I – point 20
Annex I – point 20
Amendment 505 #
Proposal for a directive
Annex I – point 21
Annex I – point 21
Amendment 506 #
Proposal for a directive
Annex I – point 22
Annex I – point 22
Amendment 507 #
Proposal for a directive
Annex I – point 23
Annex I – point 23
Amendment 508 #
Proposal for a directive
Annex I – point 24
Annex I – point 24
Amendment 509 #
Proposal for a directive
Annex I – point 25
Annex I – point 25
Amendment 510 #
Proposal for a directive
Annex I – point 26
Annex I – point 26
Amendment 511 #
Proposal for a directive
Annex I – point 27
Annex I – point 27
Amendment 512 #
Proposal for a directive
Annex I – point 29
Annex I – point 29
Amendment 513 #
Proposal for a directive
Annex I – point 30
Annex I – point 30
Amendment 514 #
Proposal for a directive
Annex I – point 31
Annex I – point 31
Amendment 515 #
Proposal for a directive
Annex I – point 32
Annex I – point 32
Amendment 516 #
Proposal for a directive
Annex I – point 33
Annex I – point 33
Amendment 517 #
Proposal for a directive
Annex I – point 34
Annex I – point 34
Amendment 518 #
Proposal for a directive
Annex I – point 36
Annex I – point 36
Amendment 519 #
Proposal for a directive
Annex I – point 37
Annex I – point 37
Amendment 520 #
Proposal for a directive
Annex I – point 38
Annex I – point 38
Amendment 521 #
Proposal for a directive
Annex I – point 39
Annex I – point 39
Amendment 522 #
Proposal for a directive
Annex I – point 42
Annex I – point 42
Amendment 523 #
Proposal for a directive
Annex I – point 43
Annex I – point 43
Amendment 524 #
Proposal for a directive
Annex I – point 45
Annex I – point 45
Amendment 525 #
Proposal for a directive
Annex I – point 48
Annex I – point 48
Amendment 526 #
Proposal for a directive
Annex I – point 49
Annex I – point 49
Amendment 527 #
Proposal for a directive
Annex I – point 50
Annex I – point 50
Amendment 528 #
Proposal for a directive
Annex I – point 51
Annex I – point 51
Amendment 529 #
Proposal for a directive
Annex I – point 52
Annex I – point 52
Amendment 530 #
Proposal for a directive
Annex I – point 53
Annex I – point 53
Amendment 531 #
Proposal for a directive
Annex I – point 54
Annex I – point 54
Amendment 532 #
Proposal for a directive
Annex I – point 56
Annex I – point 56
Amendment 533 #
Proposal for a directive
Annex I – point 57
Annex I – point 57
Amendment 534 #
Proposal for a directive
Annex I – point 58
Annex I – point 58
Amendment 535 #
Proposal for a directive
Annex I – point 59
Annex I – point 59