SynthesisTHE IMPACT OF THE INTRODUCTION OF COLLECTIVE ACTION
Florence Ninane (Partner, Allen & Overy)
Class action refers to the procedure by which an association or group of persons bring a case before a judge on behalf of a group of other individuals who share the same dispute. It guarantees the effective exercise of the right to compensation for consumers whose individual loss is often too small to justify individual action. The private sphere thus complements the public sphere in the sanctioning of unlawful conduct. Discussions about it are old, and today concern the recommendation of the European Commission and its draft directive presented on 11 June 2013, as well as the Hamon bill.
At Community level, the ECJ’s Courage judgment (2001) established the principle of the right to compensation for damage resulting from infringements of the Community competition rules. The diversity of national compensation systems is great, but some issues are recurrent: access to evidence, on which, in particular, a balance has to be struck between the interests of victims to be compensated and the general interest in keeping such documents confidential to encourage leniency; the value of decisions by national competition authorities and related prescription issues; and the risks of forum shopping. The draft Directive on damages actions for infringements of competition law is intended to address these issues. Few Commission decisions sanctioning anti-competitive practices are followed by actions for damages, and when they are, it is mainly by large companies. The Commission’s 2013 recommendation on class action therefore aims to encourage Member States to provide for a double remedy of injunctions and compensation to enable consumers to be compensated by avoiding the excesses of US class actions (in particular, no opt-out), in a broader area than the French project (environment, personal data).
