7 March 2018
In 2013 the Commission issued a Recommendation on Collective Redress, suggesting specific measures to allow groups of persons affected by the same violations of rights granted under EU law to seek injunctive or compensatory relief. Five years late, the Commission has just published a report on the uptake of the suggested measures by the Member States. It shows that the Recommendation has had little impact on Member State law and practice concerning collective redress. It also reveals that the Commission’s focus on consumer protection in this area means that it is failing to explore the potential of collective redress for the purpose of environmental protection.
First, regarding the Recommendation’s impact on Member State law and practice concerning collective redress, the Commission reports that only five Member States introduced legislation to take account of the proposed measures, and overall, only six Member States have a horizontal regime of collective redress in place. In the other Member States, collective redress is available for specific sectors only, most notably in relation to consumer protection (partly due to the existence of Directive EC/2009/22 on injunctions for the protection of consumers’ interests). In practice, even when collective redress mechanisms are formally available they are often unused due to rigid conditions, the lengthy nature of procedures or excessive costs. This Member State inaction suggests that soft law measures may not have the desired effect when it comes to securing changes to national judicial systems. One can only hope that the Commission will dedicate adequate resources to ensuring that its Notice on Access to Justice in Environmental Matters will have a greater impact.
Second, the report confirms that the Commission’s attention is firmly focused on the use of collective redress to protect consumer rights, despite the horizontal approach taken by the Recommendation. The report contains few details on the availability of collective redress mechanisms in sectors other than consumer protection. In relation to environmental rights, the report tells us that only France, Hungary, Portugal, Slovenia and Spain have collective redress mechanisms in relation to injunctive relief; there are no details at all on compensatory relief. It then concludes that the evidence gathered, including the car emissions cases, demonstrates that consumer protection is the area most relevant for the protection of collective interests. The Commission commits to following-up its assessment of the Recommendation in the framework of its forthcoming initiative on a ‘New Deal for Consumers’.
This exclusive focus on consumer interests is inconsistent with the fact that, as noted by the Commission Notice on Access to Justice in Environmental Matters, the Recommendation is the only EU instrument addressing access to justice for members of the public and NGOs against private parties. Given the Recommendation’s failure to have an impact on the laws and practice of the Member States, it is crucial for environmental protection to be included in current and future Commission initiatives on collective redress. Failure to do so not only means that the EU is failing to ensure proper implementation of the Aarhus Convention, it also disregards the attitudes of EU citizens towards environmental protection. As recent Eurobarometer report showed that 94% of EU citizens say that protection of the environment is important to them, with the vast majority saying that industry, national governments and the EU are not doing enough to protect the environment (79%, 67% and 62% respectively). The EU should fill this gap by giving the public and NGOs effective means to protect the environment through collective redress mechanisms.
This article is part of the Access to justice EARL project funded by the European Commission LIFE programme.
Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.