Explanatory Memorandum to COM(2018)184 - Representative actions for the protection of the collective interests of consumers - EU monitor

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Tuesday, July 14, 2020

Explanatory Memorandum to COM(2018)184 - Representative actions for the protection of the collective interests of consumers

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This page contains a limited version of this dossier in the EU Monitor.


Reasons for and objectives of the proposal

Effective enforcement of EU rules matters to Europeans and affects their daily lives. That is why a robust, efficient and effective enforcement system is needed to ensure that Member States fully apply, implement and enforce EU law and provide adequate redress for citizens.

In this context, this proposal aims to modernise and replace Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests1 ("the Injunctions Directive"). It is being presented together with the proposal on targeted amendments to four EU consumer law Directives2 as part of the 'New Deal for Consumers'3, included in the 2018 Commission Work Programme4 so as to improve the effectiveness of the injunction procedure and contribute to the elimination of the consequences of the infringements of Union law which affect the collective interests of consumers.

This proposal is a follow-up to the REFIT Fitness Check of EU consumer and marketing law,

published on 23 May 2017 (from now onwards: 'Fitness Check')5, which covered also the

Injunctions Directive, and to the Commission Report of 25 January 2018 on the

implementation of Commission Recommendation 2013/396/EU6 on common principles for

injunctive and compensatory collective redress mechanisms in the Member States concerning

violations of rights granted under Union Law (from now onwards: 'Collective Redress Report')7.

These evaluations demonstrated that the risk of infringements of Union law affecting the collective interests of consumers is increasing due to economic globalisation and digitalisation. Traders that infringe EU law may affect thousands or even millions of consumers with the same misleading advertisement or unfair standard contract terms in a number of different economic sectors. In light of increasing cross-border trade and EU-wide commercial strategies, these infringements increasingly also affect consumers in more than one Member State. Moreover, the Collective Redress Report showed that a number of Member States still do not provide for collective compensatory redress mechanisms tailored for mass harm situations. It stated the Commission's intention to follow up the assessment of

OJ L 110, 1.5.2009, p. 30–36.

COM(2018) 185, Proposal for a Directive of the European Parliament and of the Council amending Council Directive 93/13/EEC of 5 April 1993, Directive 98/6/EC of the European Parliament and of the Council, Directive 2005/29/EC of the European Parliament and of the Council and Directive 2011/83/EU of the European Parliament and of the Council as regards better enforcement and modernisation of EU consumer protection rules.

See the State of the Union Address and Letter of Intent to the President of the Council and the EP, available at: https://ec.europa.eu/commission/state-union-2017_en. COM(2017) 650 final.

The Fitness Check covered the Unfair Contract Terms Directive 93/13/EEC, Consumer Sales and Guarantees Directive 1999/44/EC, Price Indication Directive 98/6/EC, Unfair Commercial Practices Directive 2005/29/EC and Injunctions Directive 2009/22/EC. See for results SWD (2017) 208 final and SWD (2017) 209 final of 23.5.2017, available at: ec.europa.eu/newsroom/just. OJ L 201/60, 26.7.2013. COM(2018) 40 final.


the 2013 Recommendation with a particular focus on strengthening the consumer redress and enforcement aspects of the I njunctions D i re ctive.

Since 1998, when the Injunctions Directive was first adopted8, this EU instrument makes it possible for qualified entities designated by the Member States, such as consumer organisations or independent public bodies, to bring representative actions for the protection of the collective interests of consumers with the primary aim of stopping both domestic and cross-border infringements of EU consumer law listed in its Annex I. The Injunctions Directive has been codified by Directive 2009/22/EC, which is currently in force. It was last amended by Regulation (EU) 2018/302 on geoblocking9 in order to include that Regulation in Annex I.

The 2008 and 2012 Commission reports on the application of the Injunctions Directive and the 2016-2017 Fitness Check confirmed the Directive's importance. However, the Fitness Check concluded that it had considerable shortcomings, which, if left unaddressed, would continue to hinder its full effectiveness and lead to sub-optimal use. Even in Member States where injunctions are considered effective and are widely used, the Directives potential is not fully exploited due to a number of elements that it does not sufficiently address. The key shortcomings are its limited scope, the limited effects of injunction decisions on redress for harmed consumers and the cost and length of the procedure (see sect ion 3 for an overview of the results).

The need for EU action on collective redress has also been identified by the European Parliament. In its 2012 Resolution Towards a Coherent European Approach to Collective Redress'10, the European Parliament highlighted the need for a horizontal EU approach to collective redress, with focusing on infringement of consumers rights, based on a common set of principles respectful of national legal traditions and providing safeguards to avoid abusive litigation. It underlined the possible benefits of col lecti v e ju dic ial actions in terms of lower costs and greater legal certainty for claimants, defendants and the judicial system alike, from avoiding separate litigation of similar claims. In its 2017 Recommendation to the Council and the Commission following the inquiry into emission measurements in the automotive sector , the European Parliament called on the Commission to propose legislation on a harmonised system of collective redress for EU consumers, based on best practices within and outside the EU. This would end the current situation where consumers lack protection in many Member States which do not allow them to enforce their rights collectively. The European Economic and Social Committee has also supported EU action on collective redress for decades and called for legislation in its opinion on the 2013 Commission Recommendation, highlighting the importance of both injunctive and compensatory collective redress.

This proposal addresses those identified problems that hamper the effective and efficient application of the current Injunctions Directive.

In sum, the proposal aims at the following:

Scope - The scope of the Directive will be expanded to cover other horizontal and sector-specific EU instruments relevant for the protection of collective interests of consumers in

10 11

OJ L 166, 11.6.98, p. 51.

Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on

addressing unjustified geo-blocking and other forms of discrimination based on customers' nationality,

place of residence or place of establishment within the internal market and amending Regulations (EC)

No 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC, OJ L 60 I, 2.03.2018, p. 1.