15 May 2018
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:
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.
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.