CfP: Collective Redress and Digital Fairness, deadline 1 June 2025

Dear readers, 

a quick note to highlight a great conference opportunity at the University of Amsterdam. 

The organisers of the conference "Collective Redress and Digital Fairness", which will be held at the University of Amsterdam on 10 and 11 December 2025,  have issued a call for papers open to scholars and practitioners who are interested in engaging with the conference's broad theme, namely "the intersection of collective redress and digital fairness, understood as the equitable treatment of individuals and society in the digital space" and who will bring an own insight with emphasis on (but not limited to) a number of central questions:

• 

  CfP flyer

  What are the theoretical and normative foundations of collective redress?
• How effective is collective redress in the digital legal sphere at international, European, and national levels?
• How do digital rights intersect with other branches of law (e.g., consumer and competition law), and what does this mean for collective actions?
• What impact does litigation have on the compliance and governance of digital corporations?
• How do private and public enforcement interact, and what role do collective actions play within this regulatory framework?
• What is the role of private law and private law remedies in shaping digital fairness, and how does it constrain or contribute to collective redress mechanisms?

Contributions may focus on procedural and substantive law aspects, as well as theoretical, doctrinal, and empirical studies from national, European, and transnational perspectives. 

Thanks to sponsoring by the Dutch foundation for Collective Actions research, selected speakers will be provided one night of accommodation in Amsterdam and a reasonable travel budget. How to apply? You find the submission requirements on ACT's website and in the flyer! Deadline for application is 1 June 20225.

Third party litigation funding and consumer redress

The EU Commission has recenetly published a comprehensive Study on Mapping Third Party Litigation Funding in the European Union incliuding all EU member states. Although the study covers all aspects of third party litigation funding, it is a potentially powerful tool for enforcing consumer rights, especially complex and costly collective redress actions, and can therefore be of interest to practicioners and academics alike interested in better enforcement of consumer rights. See also BEUC's view on third party litigation funding for collective redress.

Consumer organisations may bring proceedings to defend collective interests of consumers based on the GDPR, if national law so states: AG opinion in C-319/20, Facebook Ireland

Yesterday the Advocate-General Richard de la Tour delivered his opinion in case C-319/20, Facebook Ireland, considering whether consumer organisations can have a standing to bring judicial proceedings against infringements of the General Data Protection Regulation 2016/679, independently of actual infringements of data subjects' rights. Arguably, the importance of the case goes beyond the procedural dimension it involves (not least due to Directive 2020/1828 on representative actions which elaborates on the enforcement framework, including for the GDPR). In the expert report published by BEUC earlier this year, the case was highlighted as a possible "game changer" concerning the relation between consumer and data protection law (see also: New study on consumer protection in the digital age...). The direction of the AG's opinion is likely to be welcomed in the consumer protection community.

Facts of the case

The case involves a number of data processing practices identified by the German federation of consumer organisations (vzvb) on the Facebook platform back in 2012. Most notably, the federation argued that information about the processing of personal data in connection with third-party apps available in Facebook's App Centre failed to meet the appliable requirements. German courts generally agreed that the vzvb had a point on the merits. However, following the entry into force of the GDPR a doubt was raised if the federation continued to have standing in cases that involved violations of data subjects' rights, independently of specific infringements.

Opinion of the AG 

Standing of consumer organisations

The problem sounds familiar? That's because it is. A similar question was considered by the CJEU in 2019, in the context of the previously applicable Data Protection Directive (FashionID case). Back then the Court rejected an argument that consumer organisations should not be entitled to bring claims under data protection rules. According to the AG, this has not changed after the entry into force of the GDPR; quite the contrary, the regulation explicitly provides for collective redress and nothing in Article 80(2) of the act implies that an organisation can only bring proceedings if particular persons affected by the processing have been identified.

The conclusion reached by the AG in respect of the GDPR appears to be well-founded. The reasoning relies on both literal, systematic and teleological interpretation. The AG refers both to the definition of parties entitled to bring representative actions under Article 80 of the GDPR. According to the AG, that definition extends to "all entities which pursue an objective in the public interest that is connected with the protection of personal data", which also applies to consumer protection associations (para. 61). As regards further conditions for bringing representative actions, the AG found it sufficient for an entity to demonstrate "an infringement of the provisions of Regulation 2016/679 designed to protect the subjective rights of data subjects", without the necessity to verify if the rights of one or more specific persons have been infringed (para. 63). In addition, arguments concerning the effectiveness of the GDPR, its consistency with Directive 2020/1828, and a high level of protection of personal data have been cited.

Two broader points

Aside from the above, two further aspects of the opinion merit attention. Firstly, the AG considers the "particular characteristics" of the GDPR as a regulation and connects it to discussions on full harmonisation. The AG notes that while the GDPR "seems, at first sight, to tend towards full harmonisation ... the truth is more complex" (paras. 50-51). According to the AG:

"[T]he legal basis of Regulation 2016/679, namely Article 16 TFEU, precludes the view that in adopting that regulation the European Union would have pre-empted all the ramifications which the protection of personal data may have in other areas relating, in particular, to employment law, competition law or even consumer law, by depriving Member States of the possibility of adopting specific rules in those areas, more or less independently, depending on whether the area in question is governed by EU law. In that sense, although the protection of personal data is by nature cross-sectoral, the harmonisation implemented by Regulation 2016/679 is limited to the aspects specifically covered by that regulation in that area. Apart from those aspects, the Member States remain free to legislate, provided that they do not undermine the content and the objectives of that regulation." (para. 51)

One can wonder to what extent the above finding depends on the legal basis chosen. This is particularly important in the context of the ongoing legislative developments at EU level which equally take form of regulations, but are also based on Article 114 TFUE. A prominent case in point is the proposed Artificial Intelligence Act and the more recent proposal on political targeting. Arguably, doubts about the Member States' discretion can best be resolved by way of careful drafting that makes adequate use of 'opening clauses'.

Secondly, the opinion touches upon the broader relationship between consumer and data protection law. The AG admits that "unlike ... in the United States of America, in EU law the regulations relating to unfair commercial practices and those relating to the protection of personal data have developed separately" and "are thus the subject of different regulatory frameworks" (para. 79). The opinion further observes that unlike EU consumer law, the GDPR "is not based on a consumerist concept of the protection of natural persons in relation to the processing of personal data, but on the concept that that protection is ... a fundamental right" (para 82). A number of important connections between consumer and data protection law are nonetheless recognized, as illustrated below:

"[T]here is some interaction between the two areas, so that actions falling within the framework of the regulations relating to the protection of personal data may, at the same time and indirectly, contribute to putting an end to an unfair commercial practice. The opposite is also true." (para. 80)  

"[I]n the age of the digital economy, data subjects often have the capacity of consumers. It is for that reason that the rules designed to protect consumers are often relied on to ensure that consumers are protected against a processing of their personal data that is contrary to the provisions of Regulation 2016/679." (para. 83)

and finally

[T]here may be an overlap between the representative action provided for in Article 80(2) of Regulation 2016/679 and that provided for in Directive 2020/1828 in order to obtain injunctive relief when ‘data subjects’, within the meaning of that regulation, also have the capacity of ‘consumer’, within the meaning of Article 3(1) of that directive. I see there the sign of complementarity and convergence of the law relating to the protection of personal data with other areas of law, such as consumer law and competition law. With the adoption of that directive, the EU legislature went even further and expressly linked the protection of the collective interests of consumers with compliance with Regulation 2016/679. The effective application of the rules contained in that regulation cannot but be strengthened as a result." (para. 83)

Concluding thought

Overall, the AG not only speaks out in favour of consumer organisations' standing in cases involving data protection violations, but also supports a close relationship between consumer and data protection law. Arguably, both fields can also be aligned conceptually and, indeed, complement each other in the attainment of a high level of consumer and data protection. A judgment endorsing the AG's point of view would thus be very welcome.

Third-party funding of collective actions: is it all that bad?

Third-party litigation funding refers to an arrangement whereby a third party, who has no other connection to the litigation, finances some or all of a party's legal costs in return for a share of any proceeds of the litigation. While third-party funding solves the problem of funding the litigation and enables wider access to justice for consumers, it could lead to excessive economic costs, opportunistic and 'frivolous claims'. For these reasons, since the introduction of collective redress opportunities, there has been strong resistance in Europe towards third-party funding that was often said to lead to 'US-style' class actions. Instead, in Europe, we developed 'collective actions' that enabled the protection of consumers without the 'questionable' third-party funding.  

 

While there is no doubt the introduction of collective redress for consumers in Europe had been an important milestone in the protection of consumers, the absence of sufficient funding of these expensive litigations often undermined the effectiveness of national collective redress mechanisms. Practice showed that funding is a problem, that prompted some Member States to allow for third-party funding. 

 

This trend has been now accknowledged by the new Directive 2020/1828 on Representative Actions for the protection of collective interests of consumers that devoted Article 10 to this question. The provision leaves it up to the national legislator to introduce third-party funding laying down certain standards that such legislative measure has to comply with. Importantly, conflicts of interests should be avoided and the representative action should in no way be diverted away from the aim of protecting consumers.

A recent study published by the European Parliament (J. Saulnier et al): Responsible private funding of litigation argues for the need for effective safeguards to develop responsible third-party litigation funding in the EU. The study outlines a number of regulatory gaps and challenges that the EU must overcome to improve responsible private litigation. To this effect, it discusses various approaches to the contractual, ethical, and procedural aspects of third-party funding.  Specifically, the study highlights the main policy options at EU level – including both legislative initiatives and self-regulation – that may represent effective safeguards against the risks associated with thid-party litigation funding. The Report may be an important read for our readers interested in consumer dispute resolution and collective redress.

More consumer justice? EU-wide collective redress agreed on

One of the commonly recognised gaps in EU consumer protection was the lack of harmonised collective redress options for consumers. Only some Member States have introduced their own collective actions and the procedures differed, sometimes significantly, between countries. On June 22, the European Parliament and the Council have reached a long-awaited deal on the proposed Directive on representative actions for the protection of the collective interests of consumers (see our post on the draft proposal of April 2018 here), which also will repeal the Injunctions Directive.

The European Parliament notified in a press release (New rules allow EU consumers to defend their right collectively) on what was agreed with the Council:

• min of 1 representative action procedure for injunction and redress measures available per Member State (allowing both domestic and cross-border actions)
• qualified entities who will be entitled to launch actions for injunction and redress on behalf of groups of consumers are to be supported (also financially)
• qualified entities for cross-border actions will need to prove independent and non-profit character as well as 12 months of activity in protecting consumers' interests prior to their appointment as qualified entities; Member States may choose different criteria for qualifying entities for domestic actions
• 'loser pays principle' applies
• national law may allow courts or administrative authorities to dismiss manifestly unfounded cases at initial stages
• Commission is to assess whether to establish a European Ombudsman for collective redress (cross-border actions)
• aside general consumer law claims, the actions could be brought specifically in the following areas: data protection, financial services, travel and tourism, energy, telecommunications, environment and health, passenger rights

For those looking for the final text of the Directive - this deal still needs to be officially accepted by the Parliament and the Council (the procedure file is available here). When it actually is published and enters into force, Member States will have 2 years to transpose the measures. This part of the New Deal has by no means been an easy fix, but great progress has been made.

UPDATE: text available now here.

A New Deal for Civil Justice? The New Deal for Consumers and the Justiciability of EU Consumer Rights

The Centre for the Study of European Contract Law (CSECL) holds its annual conference on Thursday 11 and Friday 12 April 2019 at the University of Amsterdam.

The 2019 CSECL conference revolves around the New Deal for Consumers that was proposed by the European Commission on 11 April 2018. It focuses on issues of civil justice that the New Deal aims to address – and, crucially, the question it appears to raise. A particular focus will be on the interaction and tension between different functions of enforcement mechanisms in consumer law, as well as the public and private interests involved at different levels. What or whom is the New Deal for?

For the provisional programme, click here. 

The conference will bring together researchers and practitioners interested in (the future of) European private law, civil procedure, consumer law and, possibly, others with a more general interest in the enforcement of EU law and EU constitutional law.

Keynote speakers:

• Prof. Colin Scott, University College Dublin
• Dr. Eva Storskrubb, Uppsala University

Conference and call for papers on New Deal for Consumers

On 11-12 April 2019, the conference A New Deal for Civil Justice? The New Deal for Consumers and the Justiciability of EU Consumer Rights will take place in Amsterdam. It is organised by the Centre for the Study of European Contract Law (CSECL) and revolves around the New Deal for Consumers that was proposed by the European Commission on 11 April 2018. The conference focuses on issues of civil justice that the New Deal aims to address – as well as, crucially, the questions it appears to raise. It will bring together researchers interested in (the future of) European private law, civil procedure, consumer law and, possibly, others with an interest in the enforcement of EU law and EU constitutional law.

For more information and the call for papers, click here. 

CSECL particularly welcomes papers that expressly address the interaction and tension between different functions of (consumer law) adjudication and enforcement mechanisms, as well as the converging or diverging (public and private) interests involved at the different relevant levels. Who or what is the New Deal for?

Commission investigates collusion among car manufacturers

Guest post by dr Kati Cseres, Associate Professor at the Amsterdam Centre for European Law and Governance, University of Amsterdam

On 18 September the European Commission has announced that it has opened an investigation against BMW, Daimler and Volkswagen, Audi and Porsche from the VW group, based on information that they had colluded, in breach of EU competition rules, to avoid competition on the development and roll-out of technology to clean the emissions of petrol and diesel passenger cars.

EU Commissioner, Margrethe Vestager, in charge of the competition policy portfolio, said: "The Commission is investigating whether BMW, Daimler and VW agreed not to compete against each other on the development and roll-out of important systems to reduce harmful emissions from petrol and diesel passenger cars. These technologies aim at making passenger cars less damaging to the environment. If proven, this collusion may have denied consumers the opportunity to buy less polluting cars, despite the technology being available to the manufacturers."

The Commission's investigation focusses on information indicating that BMW, Daimler, Volkswagen, Audi and Porsche participated in meetings where they discussed inter alia the development and deployment of technologies to limit harmful car exhaust emissions. In particular, the Commission is assessing whether the companies colluded to limit the development and roll-out of certain emissions control systems for cars sold in the European Economic Area (Article 101 of the Treaty on the Functioning of the European Union). While the EU competition rules certainly leave room for technical cooperation aimed at improving product quality, the current investigation concerns specific cooperation that is suspected to have aimed at limiting the technical development or preventing the roll-out of technical devices. The Commission has, however, stated that at this stage of the investigation it “has no indications that the parties coordinated with each other in relation to the use of illegal defeat devices to cheat regulatory testing”.

The Commission’s statement and act comes three years after  the Dieselgate scandal started with a violation notice issued by the US Environmental Protection Agency (EPA) to the VW group revealing that “defeat devices”, meant to game emissions testing, had been fitted to nearly half a million cars.

EU Commissioner Vera Jourová, responsible for Justice, Consumers and Gender Equality  has also been actively pursuing a solution for European consumers by way of legislation and proposing a New Deal for consumers as well as obtaining action plans from Volkswagen.

Should the current investigation of the Commission, Vestager’s DG Competition indeed find that Volkswagen group, Daimler and BMW has colluded on, consumers will have another strong case to bring before national courts and claim damages for the harm they suffered. At the same time, this is another strong signal for the other EU institutions that there should be further hesitation to support an EU wide collective action mechanism which effectively compensates harmed consumers.

Representative actions in the Visegrád 4 countries – real improvement? by Rita Simon

This is a guest post by dr Rita Simon from the Institute of State and Law at the Czech Academy of Sciences that has been based on a report prepared by her for BEUC

Representative actions in the Visegrád 4 countries – real improvement?

Mass harms cause a mass of problems. In mass harm situations, collective claims constitute a better means of access to justice than individual ones, especially regarding bagatelle harms. Although certain collective redress mechanisms exist all over Europe, their effectiveness is questionable. Studies such as “Evaluation of the effectiveness and efficiency of collective redress mechanisms in the European Union” and the “Fitness check of consumer law” showed that the existing redresses are rarely used or they do not produce the desired results, in almost all Member States. We can also observe the ineffectiveness of injunction actions in the V4 countries. The New Deal for Consumers, which has been published in April this year, aims to strengthen the enforcement of consumer rights, which is the Alfa and Omega of consumer protection. The proposed way of improving enforcement by the European Commission follows the German, Austrian and French practice: the launch of representative actions by consumer organisations will be supported more strongly by the Commission. However, the question of whether such actions could be the best solution for enforcing consumer rights and access to justice in the V4 countries should be posed.

Injunctive reliefs

Depending on who has the right to file for an injunction and how effective the action is in practice, some key differences should be observed. In the Czech Republic, only consumer protection organisations can file for injunctive relief; in the other three countries some control authorities, such as the financial surveillance authority or office of consumer protection or consumer ombudsman can also initiate injunction actions. How often these authorities file an action often depends on the consumer policy of the government in power. An interesting fact is that in Hungary – similarly to in Spain - the state advocate also has the right to file an injunctive action if the public interest is affected. Such actio popularis actions have been very effective in eliminating unfair clauses, e.g. in financial service contracts. The yearly total of filed injunctive actions is very low in the Visegrád 4 countries, at not more than 1-2 actions per country. However, it should be pointed out that in Hungary and Poland compensatory collective redress is available in combination with an injunctive action, which significantly increases the impact of such a redress. In contrast with this, in the Czech Republic, the consumer organisation often withdraws the filed action, because of the length of the procedure or due to competency problems between the courts and other supervisory bodies. In Poland, the President of the Competition and Consumer Protection Office (UOKiK) does not have an obligation to initiate an injunction procedure automatically at the request of a consumer organisation or the ombudsman; it is at his discretion. A further criticism is that an injunction decision against a foreign trader is not enforceable, and it is reported in all the Visegrád countries that consumer organisations generally lack sufficient financial and human resources. The impossibility of consumer organisations to demand monetary compensation is problematic in the Czech Republic and Slovakia.

Other existing mechanisms – class action, and actio popularis

Class action mechanisms as a form of group action have been in force since 2010 in Poland, and in Hungary since January 2018. Group actions popped up in Poland like mushrooms and were filed in very different areas, such as construction disasters, mass poisoning and unfair clauses in credit or travel contracts, but also against motorway operators and against a regional authority. The number of suits initiated is over 100, but many claims were rejected due to the limited scope of application of the class action. Class actions can be initiated exclusively regarding tortious conduct and product liability, but claims for personal injury and infringement of human rights (health, body integrity, good reputation image, etc.) are excluded from the scope. In contrast, the Hungarian scope of application does not exclude personal injury, but limits the fields of law in which class action can be used. Therefore, a group action can be filed in Hungary in labour and consumer disputes and over some health claims resulting from environmental damage. Group actions in both countries follow in some respects the US class-action model but, regarding joining the group, just an opt-in possibility is given, and the Polish model in particular contains numerous safeguards to avoid malicious, ruinous claims.

As other interesting collective redress, Hungary improved its “actio popularis” rules in 2012 and differentiated between so-called public interest actions and public interest enforcements, which can be commenced if the infringement has harmed a large, identifiable group of consumers, or has caused a significant disadvantage. The public interest action can end in two ways, first with a declaratory judgment establishing the infringement or second with a cease and desist order on its own or with a case order accompanied by a restitution order. In the first model, which ends with the declaratory judgement, consumers have to file a simplified follow-on damages claim. In this claim, they need to prove the causal link between the infringement and the extent of the damage suffered. A public interest enforcement presumes a prior administrative process that has established the infringement. Despite high expectations, this type of claim has so far not achieved its purpose. Collective actions have been filed much less often after the amendments than before 2013. This can be explained by the continuing decline in consumer financing and the abolition of the Department of Collective Action at the Consumer Protection Agency. In addition, the reluctance of consumers to file follow-on complaints regarding the damage suffered needs to be emphasised, as does the lack of information on the existence of actio popularis decisions.

Unlike in Hungary and Poland, the two other Visegrád countries have not introduced new group action mechanisms yet; the Czech legislator is working on a class-action proposal, but the new government has not given priority to this entering into law. Business associations, especially the banking association, have been trying to have the legislation shelved until the new Directive on representative actions has been announced. 

Are representative actions suitable collective redress models for the V4 countries?

The proposal for the Directive allows "qualified entities", such as consumer organisations (but also ad hoc entities), to launch actions on behalf of all consumers. These entities will have to satisfy minimum reputational criteria (they must be properly established, not for profit and have a legitimate interest in ensuring compliance with the relevant EU law). Compensatory collective redress actions will also be available. A very important feature of these actions is that, in order to protect the interests of consumers, the above-mentioned entities will be entitled to seek redress by repairs, exchanges, reductions and termination of the contract or repayment of the purchase price. A very interesting innovation is that if a prior administrative or court decision has assessed an infringement, it should be taken as irrefutable evidence in any subsequent redress action not just in the same but also in other Member States. This emphasis on the acceptance of court and administrative decisions should avoid legal uncertainty and unnecessary costs for all parties, including the judiciary. Such a new development could certainly bring positive changes; the only question to pose is whether the legitimacy of bringing representative actions should be reserved for consumer associations alone.

In the Visegrád 4 countries, there is considerable concern that - due to the lack of funding of consumer organisations and the impossibility of receiving funding from third parties - these entities will not be able to perform properly. The situation, which has been observed in current injunction practices, will not improve in the future. It should therefore be recommended that other state organisations (e.g. consumer authorities, the ombudsman, financial supervisory authorities and trading standards agencies) should also receive the right to launch these collective actions. The state organisation has better access to evidence and it has a bigger legal department than consumer organisations. To support the participation of consumers in civil law proceedings, it seems useful to introduce parallel “clean” opt-in class action models in all the Visegrád states. It is also recommended to define the form and content of simplified individual follow-on-damage claims, similar to the Hungarian model after public interest/enforcement actions. These changes should be proposed with sufficient precision at the European level, because otherwise is can be assumed that the national legislatures of some countries (including the Visegrád states) would not make their collective redress mechanisms significantly more effective, due to the resistance of business and banking associations. Without simple, clear and feasible collective redress, the enforceability of consumer rights will not improve in Slovakia and the Czech Republic at all and just a new rule on paper will be announced.  

POLITICO publishes draft Commission proposal on collective redress for European consumers

POLITICO, a well-known news website on European affairs, reports that it has obtained a draft proposal of the European Commission for a new Directive on representative actions for the protection of the collective interests of consumers, and repealing the Injunctions Directive (2009/22/EC; referred to as "ID"). Last year, the Commission already announced a 'New Deal for Consumers', including an EU-wide class action and collective redress; see our blog post here.

One of the drivers of this development has been the "the inquiry into emission measurements in the automotive sector", i.e. 'Dieselgate'; see our previous blogs here, here and here. Not all Member States provide for collective redress mechanisms tailored for mass harm situations, so not all consumers have access to effective redress opportunities. According to the Commission, the significant disparities among Member States require EU intervention, particularly in light of the cross-border implications; although the proposal applies to domestic infringements of EU law as well.

The draft proposal is a follow-up to the REFIT Fitness Check of EU Consumer and Marketing Law, which also covered the ID, and to Commission Recommendation 2013/396/EU. The Commission states its intention to further strengthen the redress and enforcement aspects of consumer protection (Article 114 TFEU and Article 38 EUCFR), through the establishment of a complementary EU framework supported by procedural rules on the national level. This should also facilitate access to justice (cf. Article 47 EUCFR); possible benefits of collective judicial actions are lower costs and more legal certainty. The proposal is meant as an additional procedural tool: it does not replace existing mechanisms, nor does it affect substantive rights.

The proposed Directive establishes "certain key aspects", but its lack of further detail is also its weakness. For example, it does not specify which divergences between Member States or gaps in the protection of collective consumer interests are most problematic. It does not make a clear distinction either between injunction orders, redress orders and declaratory decisions, nor does it address corresponding procedural complications and modalities.

The Commission does not explain why the ID needs to be improved and which specific elements need an update. It only observes that the key shortcomings of the ID are its limited scope, the limited effects of injunctions on redress for consumers and the costs and length of the procedure. The Commission therefore proposes to enlarge the scope of the future Directive to other horizontal and sector-specific EU instruments, e.g. in the field of financial services, energy, telecommunication, health or the environment. Consumers who have been harmed must be able to rely on a final decision in a representative action (Article 8 draft proposal). The proposal aims to improve the effectiveness of injunctions in terms of deterrence of unlawful practices, as well as fair and adequate compensation for consumers, but how exactly those goals are to be achieved is not elaborated. Moreover, the proposal aims to strike a balance between facilitating access to justice and ensuring adequate safeguards from abusive litigation (frivolous claims), but again modalities are not defined. The proposal works with 'qualified entities' that must satisfy certain criteria (Article 6 draft proposal), and it emphasises the importance of 'due procedural expediency'. However, how this is to be realized is left to the Member States.

In the Netherlands, for instance, a legislative proposal is pending for the introduction of a collective damages action. The ongoing discussion shows how difficult it is to find a balance between access to justice and effective redress on the one hand, and the prevention of abuse on the other; see here and here for more background information. The most controversial issues, such as the designation of a lead plaintiff, opt-in/opt-out possibilities and the calculation of damage, are not addressed in the Commission's draft proposal. 

It is expected that the Commission will announce its proposal (this draft or an amended version) in the next few months. It is far from certain that it will eventually result in a Directive. Whether it will be adopted or not, the proposal is likely to have an impact on the debate on collective redress.

Max Schrems is a consumer - with respect to his own claims, Court says

Source: https://twitter.com/maxschrems

Yesterday, on 25 January, the judgment in the second high profile case concerning the battle of Max Schrems against Facebook was delivered by the Court of Justice. The ruling does not come as a big surprise to those familiar with the earlier opinion of Advocate-General Bobek (for a broader overview of the dispute itself and the AG's opinion see our earlier post here). Indeed, the Court decided to follow the midway approach proposed to it by the AG. According to the Court, a claimant does not lose the status of a 'consumer' for purposes of establishing jurisdiction of the court seised, as a result of his engagement in activities such as book publishing, lecturing, operating websites, fundraising and collecting claims of numerous consumers. However, the jurisdictional privilege arising out of Article 16(1) Regulation No 44/2001 (Brussels I; currently Article 18(1) Regulation No 1215/2012) does not extend to collective redress.

Question 1: Is Schrems himself a consumer?

The Court began its analysis by recalling the general rule of actor sequitur forum rei, upon which the Brussels I regime is based, and the consequent requirement to interpret the rules which derogate from it strictly. This applies to Article 16(1) which allows consumers to bring proceedings against their contractual counter-party in the courts for the place where they are domiciled. 

It then reaffirmed its established line of reasoning, according to which:

• in the interpretation of the term 'consumer' for purposes of Brussels I regulation reference must be made to the position of the person concerned in a particular contract, having regard to the nature and objective of that contract and not to the subjective situation of the person concerned (para. 29);
• only contracts concluded outside and independently of any trade or professional activity or purpose, solely for the purpose of satisfying an individual's own needs in terms of private consumption, are, in principle, covered by the special rules aimed to protect the consumer as a weaker party (paras. 30-31).

Mixed purpose and dynamic assessment

The judgment further recalled that in mixed purpose scenarios, i.e. where a person concludes a contract for a purpose which is partly within and partly outside his or her trade or profession, the Gruber test applies. Consequently, a person can only rely on the jurisdictional privilege available to consumers if the link between the contract and that person's trade or profession is so slight as to be marginal and, therefore, has only a negligible role in the context of the supply in respect of which the contract is concluded, considered in its entirety (para. 32).

Having in mind the conclusion reached in Gruber as well as the Court's repeated references to the strict interpretation requirement in the commented judgment, the reasoning presented so far did not appear to bode well for Schrems. Neither did the following passage of the judgment, which introduced an element of novelty to the Court's existing jurisprudence and could be of considerable relevance for the future cases. 

"[I]t is necessary, in particular, to take into account, as far as concerns services of a digital social network which are intended to be used over a long period of time, subsequent changes in the use which is made of those services" (para. 37). Consequently, "a user of such services may, in bringing an action, rely on his status as a consumer only if the predominately non-professional use of those services, for which the applicant initially concluded a contract, has not subsequently become predominately professional" (para. 38).

The Court has thus made clear that the subsequent change of the purpose, for which the services provided under the contract are used, should not be disregarded. This is already a very important take-away. The importance of these follow-on factors is, nevertheless, far from clear. While the Court does not refer to it explicitly, it seems that the time of contract conclusion could still be perceived as the main point of reference, as reasoned by the AG. Based on this premise, one could argue that it is at this stage that the strict Gruber test should be applied. Indeed, the negative formulation "has not subsequently become predominately professional" leaves room for a more consumer-claimant-friendly interpretation at a subsequent stage.

The contract, not the person

As seen from above, with respect to mixed-purpose long-term contracts the judgment leaves several important questions open and its consumer-claimant-friendly reading may be regarded as a stretch. The answer provided by the Court was, nevertheless, favourable to Schrems. The reason seems to lie in the character of his "professional" use of Facebook services. According to the Court, acquiring expertise in the field covered by the services at issue and giving assurances for the purposes of representing the rights and interests of other service recipients cannot lead to the loss of one's consumer status. This is because: 

• as mentioned before, an assessment of the 'consumer' status is undertaken irrespective of the subjective situation of the person concerned, in particular his or her knowledge and information possessed (para. 39);
• a contrary interpretation would prevent an effective defence of the rights that consumers enjoy in relation to their contractual partners who are traders or professionals (here especially: the protection of personal data) and would disregard the objective set out in Article 169(1) TFEU of promoting the right of consumers to organise themselves in order to safeguard their interests (para. 40).

Question 2: Can Schrems bring claims of other consumers in his domestic court?

Article 169(1) TFEU, however, did not prove helpful in respect of the second question. Emphasising once again the requirement of strict interpretation, the Court found that the special protection granted to a consumer as a party to the legal proceedings applies only in so far as the claimant or defendant is, in fact, a party to the consumer contract in question (paras. 44-45). A situation of a consumer to whom claims of other consumers were assigned was thus treated analogously to that of a consumer organisation. A different interpretation would, according to the Court, lead to the establishment of a specific forum for consumers to whom claims of other consumers have been assigned, which is nowhere to be found in the Brussels I regulation and which would undermine the predictability of attributing jurisdiction (paras. 46-48).  

Consequently, the jurisdictional privilege set out in Article 16(1) of Regulation No 44/2001 does not apply to the proceedings brought by a consumer for the purpose of asserting the claims assigned to him by other consumers, irrespective of whether the assignors are domiciled in the same Member State, in other Member States or in non-member countries.

Concluding thought

The judgment appears to be a win for consumers who decide bring their civil claims against traders to a court and take their disputes seriously - a result which is hard not to agree with. The ruling is, nevertheless, far from a sweeping consumer victory. Despite a reference to the consistency of EU law in para. 28, the Court maintained the established reading of Gruber for jurisdictional purposes and accepted that consumer status can be lost over time. Last but not least, even if the Court's choice to leave the collective redress dimension up to the European legislator cannot be denied legal grounds, it goes without saying that transnational private enforcement of consumer law remains an issue. One can hope, however, that the experience made in discussions on the GDPR regarding that latter point, along with the recent steps taken by the Commission as a follow-up to its 2013 recommendation on collective redress, will eventually bring something more concrete to reason about.