Proposals for an EU-wide approach to collective redress exposed deep divisions among delegates gathered in Luxembourg for last week’s plenary session of the Council of Bars and Law Societies of Europe (CCBE).
Collective redress, sometimes called group litigation or class action, was the subject of one of a series of debates on issues as diverse as the EU’s accession to the European Convention on Human Rights, EU contract law, defendants’ rights, electronic signatures and the Single Market Act.
The debate on an EU-wide system for collective redress saw delegations from most of the CCBE’s 31 member countries agree that ‘language barriers and distances’ would make such a system impossible to implement effectively.
They called instead for ‘efficient enforcement’ of consumer laws allied to minimal changes to national procedures.
UK delegation leader Ruthven Gemmell said: ‘The time is not right for a one-size-fits-all pan-European collective procedure. We need to build on a process.’
In contrast, the French, Italian, Spanish, Portuguese and Luxembourg delegations came out in favour of the EU setting up a collective redress ‘mechanism’, provided it respected ‘certain prerequisites and principles in order to fit into the European legal culture’.
Both sides acknowledged the importance of access to justice, but noted that consumer organisations were likely to support an EU-wide compensation scheme, whereas businesses would fear ‘abusive litigation’.
Both sides also agreed that lawyers should be involved in all collective redress actions.
An earlier roundtable event considered the EU’s forthcoming accession to the European Convention on Human Rights, whereby the EU is to grant power to the European Court of Human Rights (ECtHR) to review the compatibility of its actions under the terms of the convention.
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Previously, only member states were subject to such scrutiny by the European court.
Keynote speakers also discussed what impact accession might have on the relationship between Strasbourg’s ECtHR and Luxembourg’s Court of Justice of the European Union (CJEU) – formerly the European Court of Justice.
Christiaan Timmermans, a CJEU judge until June 2010, said accession was necessary to integrate the EU into the 47- member-state, pan-European system of human rights protection afforded by the Council of Europe through the ECtHR.
He added that it would ‘put an end to the present, anomalous situation where someone who considers his human rights infringed by an EU act must address his complaint before the Strasbourg court against a member state – or even all member states – because he cannot directly address the EU’.
The convention has been a ‘source of inspiration’ for the Luxembourg court since the early 1970s, Timmermans added.
Jean-Marc Sauve, vice-president of the French Conseil d’Etat, France’s highest court for cases involving public administration, said that ‘difficulties can and do arise between the two courts’, but that ‘calm examination in the light of settled case law’ should resolve any conflict.
‘No complicated mechanism will be needed to replace intelligent cooperation between judges in the two courts,’ said Sauve.
Estonian ECtHR judge Julia Laffranque noted that nine years passed between her country’s application for accession to the EU and its actual accession.
She said: ‘Now it’s my opportunity to anticipate how long the EU itself takes to accede to the convention.
'The process should be as fast and simple as possible.’
Delegates then moved to the CJEU, where its president, Vassilios Skouris, started the plenary session by welcoming the CCBE to the court.
It was a time of change, he said, with the court set to streamline the way it dealt with complex and time-consuming competition cases. It will also recruit more judges to help reduce its backlog of cases, he added.
CCBE secretary general Jonathan Goldsmith updated delegates on a CCBE project, funded by the European Commission (EC), to prepare factsheets on the rights of defendants in criminal proceedings in all 27 member states of the EU.
Goldsmith said that these have now been completed in ‘plain, unambiguous language that can easily be understood by the layperson’ and will be available ‘in the near future’ on the EU’s e-Justice portal.
They cover: obtaining legal advice; a defendant’s rights before, during and after trial; and road traffic offences.Goldsmith also gave a status report on the CCBE’s Find-A-Lawyer (FAL) project, which aims to create an online tool for lawyers and consumers to search for and find suitable legal representation in every member state of the EU.
Goldsmith said that the EC is to build the FAL search engine on the e-Justice portal by the middle of next year, and urged non-participating bars and law societies to join the project straight away.
Friday’s session concluded with a guided tour of the CJEU, with delegates visiting courtrooms, the judges’ deliberation chamber (where the 27 judges, one from each member state, hold weekly meetings) and common areas housing some of the court’s art collection.
On Saturday, European commissioner for justice, fundamental rights and citizenship Viviane Reding told the plenary session that she will launch new legislation in July to facilitate cross-border debt recovery through better enforcement.
She said: ‘It will be a new self-standing European procedure available to citizens and companies in addition to existing national procedures.’
She added that her programme for 2011 would also include initiatives on family and criminal law, the European Arrest Warrant and victims of crime.
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