New EU directive proposal on collective redress for consumers lacks environmental dimension

The European Commission has published a proposal for a new directive on representative actions for the protection of the collective interests of consumers.

The proposal builds on and would replace the current Injunctions Directive (2009/22/EC), which allows ‘qualified entities’, i.e. public authorities or consumer organisations meeting certain criteria, to bring representative actions on behalf of consumers against traders which have breached EU consumer law and to obtain injunctions that stop the infringement. The new proposal extends this right to representative entities seeking redress, such as compensation.

This proposal follows the Commission’s report on collective redress published in January this year, analysed here.

As promised in the report, the proposal is confined to consumer protection. In other words, collective redress actions may only challenge violations of EU rules that are specifically designed for consumer protection.

Despite this, the Commission insists that, “the proposal integrates environmental protection requirements, and is consistent with the Aarhus Convention…” and provides the example of how collective redress could be used in the dieselgate context to allow victims of unfair commercial practices to obtain remedies collectively.

In this regard, it is disappointing to witness the reduction of dieselgate to a consumer scandal, when in fact its health impacts are felt by many more than just owners of vehicles made by Volkswagen and other companies involved. While stronger protection for EU consumers is very welcome, it is disappointing that the Commission has missed an opportunity to ensure member state compliance with Article 9(3) of the Aarhus Convention, especially regarding access for members of the public to procedures for challenging the acts of private persons that contravene environmental law.

Nevertheless, the proposal includes provisions that, if implemented in the context of legal challenges in environmental matters, would greatly improve access to justice. Highlights include the following:

  • Article 12 provides that member states shall take measures to ensure that actions are treated with “due expediency”, and that an accelerated procedure is available for requests for interim measures.
  • Article 13 recognises that the infringing trader is often in possession of the evidence needed to prove the consumers’ case, and allows the competent court or administrative authority to order the trader to provide such evidence.
  • Article 15 requires member states to ensure that the costs of proceedings do not create “excessive obstacles” for qualified entities to bring a case. It also requires member states and the Commission to support and facilitate the cooperation of qualified entities and the exchange and dissemination of best practices.
  • With regard to cross-border actions, Article 16 provides that an organisation recognised as a qualified entity in one member state will have standing before the courts or administrative authorities of another member states, albeit without prejudice to their right to examine whether the purpose of the qualified entity justifies it taking action in a specific case.

With this proposal, the Commission is confident of providing a level playing field for consumers that will safeguard the internal market. We hope that the Commission will give equal importance to protecting the environment through the introduction of a directive on access to justice in environmental matters.

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Kaique Rocha