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Procedure : 2018/0089(COD)
Document stages in plenary
Document selected : A8-0447/2018

Texts tabled :

A8-0447/2018

Debates :

PV 25/03/2019 - 17
CRE 25/03/2019 - 17

Votes :

PV 26/03/2019 - 7.2

Texts adopted :

P8_TA(2019)0222

Texts adopted
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Tuesday, 26 March 2019 - Strasbourg Provisional edition
Representative actions for the protection of the collective interests of consumers ***I
P8_TA-PROV(2019)0222A8-0447/2018

European Parliament legislative resolution of 26 March 2019 on the proposal for a directive of the European Parliament and of the Council on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC (COM(2018)0184 – C8-0149/2018 – 2018/0089(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2018)0184),

–  having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8‑0149/2018),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the reasoned opinions submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Austrian Federal Council and the Swedish Parliament, asserting that the draft legislative act does not comply with the principle of subsidiarity,

–  having regard to the opinion of the European Economic and Social Committee(1),

–  having regard to the opinion of the Committee of the Regions(2),

–  having regard to Rule 59 of its Rules of Procedure,

–  having regard to the report of the Committee on Legal Affairs and also the opinions of the Committee on the Internal Market and Consumer Protection and the Committee on Transport and Tourism (A8-0447/2018),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Text proposed by the Commission   Amendment
Amendment 1
Proposal for a directive
Recital 1
(1)  The purpose of this Directive is to enable qualified entities, which represent the collective interest of consumers, to seek remedy through representative actions against infringements of provisions of Union law. The qualified entities should be able to ask for stopping or prohibiting an infringement, for confirming that an infringement took place and to seek redress, such as compensation, repair or price reduction as available under national laws.
(1)  The purpose of this Directive is to enable qualified representative entities, which represent the collective interest of consumers, to seek remedy through representative actions against infringements of provisions of Union law. The qualified representative entities should be able to ask for stopping or prohibiting an infringement, for confirming that an infringement took place and to seek redress, such as compensation, reimbursement of the price paid, repair, replacement, removal or contract termination as available under national laws.
Amendment 2
Proposal for a directive
Recital 2
(2)  Directive 2009/22/EC of the European Parliament and of the Council29 enabled qualified entities to bring representative actions primarily aimed at stopping and prohibiting infringements of Union law harmful to the collective interests of consumers. However, that Directive did not sufficiently address the challenges for the enforcement of consumer law. To improve the deterrence of unlawful practices and to reduce consumer detriment, it is necessary to strengthen the mechanism for protection of collective interests of consumers. Given the numerous changes, for the sake of clarity it is appropriate to replace Directive 2009/22/EC.
(2)  Directive 2009/22/EC of the European Parliament and of the Council 29 enabled qualified representative entities to bring representative actions primarily aimed at stopping and prohibiting infringements of Union law harmful to the collective interests of consumers. However, that Directive did not sufficiently address the challenges for the enforcement of consumer law. To improve the deterrence of unlawful practices, to encourage good and responsible business practices, and to reduce consumer detriment, it is necessary to strengthen the mechanism for protection of collective interests of consumers. Given the numerous changes, for the sake of clarity it is appropriate to replace Directive 2009/22/EC. There is a strong need for Union intervention, on the basis of Article 114 TFEU, in order to ensure both access to justice and sound administration of justice as it will reduce the costs and burden entailed by individual actions.
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29 OJ L 110/30, 1.5.2009.
29 OJ L 110/30, 1.5.2009.
Amendment 3
Proposal for a directive
Recital 3
(3)  A representative action should offer an effective and efficient way of protecting the collective interests of consumers. It should allow qualified entities to act with the aim of ensuring compliance with relevant provisions of Union law and to overcome the obstacles faced by consumers within individual actions, such as the uncertainty about their rights and available procedural mechanisms, psychological reluctance to take action and the negative balance of the expected costs and benefits of the individual action.
(3)  A representative action should offer an effective and efficient way of protecting the collective interests of all consumers against both internal and cross-border infringements. It should allow qualified representative entities to act with the aim of ensuring compliance with relevant provisions of Union law and to overcome the obstacles faced by consumers within individual actions, such as the uncertainty about their rights and available procedural mechanisms, previous experience of unsuccessful claims, excessively lengthy proceedings, psychological reluctance to take action and the negative balance of the expected costs and benefits of the individual action, thereby increasing legal certainty for both claimants and defendants, as well as for the legal system.
Amendment 4
Proposal for a directive
Recital 4
(4)  It is important to ensure the necessary balance between access to justice and procedural safeguards against abusive litigation which could unjustifiably hinder the ability of businesses to operate in the Single Market. To prevent the misuse of representative actions, elements such as punitive damages and the absence of limitations as regards the entitlement to bring an action on behalf of the harmed consumers should be avoided and clear rules on various procedural aspects, such as the designation of qualified entities, the origin of their funds and nature of the information required to support the representative action, should be laid down. This Directive should not affect national rules concerning the allocation of procedural costs.
(4)  It is important to ensure the necessary balance between access to justice and procedural safeguards against abusive litigation which could unjustifiably hinder the ability of businesses to operate in the Single Market. To prevent the misuse of representative actions, elements such as punitive damages and the absence of limitations as regards the entitlement to bring an action on behalf of the harmed consumers should be avoided and clear rules on various procedural aspects, such as the designation of qualified representative entities, the origin of their funds and nature of the information required to support the representative action, should be laid down. The unsuccessful party should bear the costs of the proceedings. However, the court or tribunal should not award costs to the unsuccessful party to the extent that they were unnecessarily incurred or are disproportionate to the claim.
Amendment 5
Proposal for a directive
Recital 6
(6)  This Directive should cover a variety of areas such as data protection, financial services, travel and tourism, energy, telecommunications and environment. It should cover infringements of provisions of Union law which protect the interests of consumers, regardless of whether they are referred to as consumers or as travellers, users, customers, retail investors, retail clients or other in the relevant Union law. To ensure adequate response to infringement to Union law, the form and scale of which is quickly evolving, it should be considered, each time where a new Union act relevant for the protection of the collective interests of consumers is adopted, whether to amend the Annex to the present Directive in order to place it under its scope.
(6)  This Directive should cover a variety of areas such as data protection, financial services, travel and tourism, energy, telecommunications, environment and health. It should cover infringements of provisions of Union law which protect the collective interests of consumers, regardless of whether they are referred to as consumers or as travellers, users, customers, retail investors, retail clients or other in the relevant Union law, as well as the collective interests of data subjects within the meaning of the GDP Regulation. To ensure adequate response to infringement to Union law, the form and scale of which is quickly evolving, it should be considered, each time where a new Union act relevant for the protection of the collective interests of consumers is adopted, whether to amend the Annex to the present Directive in order to place it under its scope.
Amendment 6
Proposal for a directive
Recital 6 a (new)
(6 a)  This Directive applies to representative actions brought against infringements with a broad consumer impact related to the provisions covered by the Union law listed in Annex I. The broad impact starts when two consumers are affected.
Amendment 7
Proposal for a directive
Recital 9
(9)  This Directive should not establish rules of private international law regarding jurisdiction, the recognition and enforcement of judgments or applicable law. The existing Union law instruments apply to the representative actions set out by this Directive.
(9)  This Directive should not establish rules of private international law regarding jurisdiction, the recognition and enforcement of judgments or applicable law. The existing Union law instruments apply to the representative actions set out by this Directive preventing any increase in forum shopping.
Amendment 8
Proposal for a directive
Recital 9 a (new)
(9 a)  This Directive should not affect the application of EU rules on private international law in cross-border cases. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast - Brussels I), Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) and Regulation (EC) No 864/2007of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) apply to the representative actions set out by this Directive.
Amendment 9
Proposal for a directive
Recital 10
(10)  As only qualified entities can bring the representative actions, to ensure that the collective interests of consumers are adequately represented the qualified entities should comply with the criteria established by this Directive. In particular, they would need to be properly constituted according to the law of a Member State, which could include for example requirements regarding the number of members, the degree of permanence, or transparency requirements on relevant aspects of their structure such as their constitutive statutes, management structure, objectives and working methods. They should also be not for profit and have a legitimate interest in ensuring compliance with the relevant Union law. These criteria should apply to both qualified entities designated in advance and to ad hoc qualified entities that are constituted for the purpose of a specific action.
(10)  As only qualified representative entities can bring the representative actions, to ensure that the collective interests of consumers are adequately represented the qualified representative entities should comply with the criteria established by this Directive. In particular, they would need to be properly constituted according to the law of a Member State, which should include for example transparency requirements on relevant aspects of their structure such as their constitutive statutes, management structure, objectives and working methods. They should also be not for profit and have a legitimate interest in ensuring compliance with the relevant Union law. Furthermore, the qualified representative entities must be independent from market operators, including financially. The qualified representative entities must also have an established procedure to prevent conflict of interests. Member States shall not impose criteria that go beyond those established in this Directive.
Amendment 10
Proposal for a directive
Recital 15
(15)  The qualified entity initiating the representative action under this Directive should be a party to the proceedings. Consumers concerned by the infringement should have adequate opportunities to benefit from the relevant outcomes of the representative action. Injunction orders issued under this Directive should be without prejudice to individual actions brought by consumers harmed by the practice subject to the injunction order.
(15)  The qualified entity initiating the representative action under this Directive should be a party to the proceedings. Consumers concerned by the infringement should have adequate information regarding the relevant outcomes of the representative action and how they can benefit from them. Injunction orders issued under this Directive should be without prejudice to individual actions brought by consumers harmed by the practice subject to the injunction order.
Amendment 11
Proposal for a directive
Recital 16
(16)  Qualified entities should be able to seek measures aimed at eliminating the continuing effects of the infringement. These measures should take the form of a redress order obligating the trader to provide for, inter alia, compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid, as appropriate and as available under national laws.
(16)  Qualified representative entities should be able to seek measures aimed at eliminating the continuing effects of the infringement. These measures should take the form of a redress order obligating the trader to provide for, inter alia, compensation, repair, replacement, removal, price reduction, contract termination or reimbursement of the price paid, as appropriate and as available under national laws.
Amendment 12
Proposal for a directive
Recital 18
(18)  Member States may require qualified entities to provide sufficient information to support a representative action for redress, including a description of the group of consumers concerned by an infringement and the questions of fact and law to be resolved within the representative action. The qualified entity should not be required to individually identify all consumers concerned by an infringement in order to initiate the action. In representative actions for redress the court or administrative authority should verify at the earliest possible stage of the proceedings whether the case is suitable for being brought as a representative action, given the nature of the infringement and characteristics of the damages suffered by consumers concerned.
(18)  Member States should require qualified representative entities to provide sufficient information to support a representative action for redress, including a description of the group of consumers concerned by an infringement and the questions of fact and law to be resolved within the representative action. The qualified entity should not be required to individually identify all consumers concerned by an infringement in order to initiate the action. In representative actions for redress the court or administrative authority should verify at the earliest possible stage of the proceedings whether the case is suitable for being brought as a representative action, given the nature of the infringement and characteristics of the damages suffered by consumers concerned. In particular, the claims should be ascertainable and uniform and there should be a commonality in the measures sought, third-party funding arrangement of the qualified entity should be transparent and without any conflict of interest. Member States should also ensure that the court or administrative authority has the authority to dismiss manifestly unfounded cases at the earliest possible stage of proceedings.
Amendment 13
Proposal for a directive
Recital 19
(19)  Member States should be allowed to decide whether their court or national authority seized of a representative action for redress may exceptionally issue, instead of a redress order, a declaratory decision regarding the liability of the trader towards the consumers harmed by an infringement which could be directly relied upon in subsequent redress actions by individual consumers. This possibility should be reserved to duly justified cases where the quantification of the individual redress to be attributed to each of the consumer concerned by the representative action is complex and it would be inefficient to carry it out within the representative action. Declaratory decisions should not be issued in situations which are not complex and in particular where consumers concerned are identifiable and where the consumers have suffered a comparable harm in relation to a period of time or a purchase. Similarly, declaratory decisions should not be issued where the amount of loss suffered by each of the individual consumers is so small that individual consumers are unlikely to claim for individual redress. The court or the national authority should duly motivate its recourse to a declaratory decision instead of a redress order in a particular case.
deleted
Amendment 14
Proposal for a directive
Recital 20
(20)  Where consumers concerned by the same practice are identifiable and they suffered comparable harm in relation to a period of time or a purchase, such as in the case of long-term consumer contracts, the court or administrative authority may clearly define the group of consumers concerned by the infringement in the course of the representative action. In particular, the court or administrative authority could ask the infringing trader to provide relevant information, such as the identity of the consumers concerned and the duration of the practice. For expediency and efficiency reasons, in these cases Member States in accordance with their national laws could consider to provide consumers with the possibility to directly benefit from a redress order after it was issued without being required to give their individual mandate before the redress order is issued.
deleted
Amendment 15
Proposal for a directive
Recital 21
(21)  In low-value cases most consumers are unlikely to take action in order to enforce their rights because the efforts would outweigh the individual benefits. However, if the same practice concerns a number of consumers, the aggregated loss may be significant. In such cases, a court or authority may consider that it is disproportionate to distribute the funds back to the consumers concerned, for example because it is too onerous or impracticable. Therefore the funds received as redress through representative actions would better serve the purposes of the protection of collective interests of consumers and should be directed to a relevant public purpose, such as a consumer legal aid fund, awareness campaigns or consumer movements.
deleted
Amendment 16
Proposal for a directive
Recital 23
(23)  This Directive provides for a procedural mechanism, which does not affect the rules establishing substantive rights of consumers to contractual and non-contractual remedies in case their interests have been harmed by an infringement, such as the right to compensation for damages, contract termination, reimbursement, replacement, repair or price reduction. A representative action seeking redress under this Directive can only be brought where Union or national law provides for such substantive rights.
(23)  This Directive provides for a procedural mechanism, which does not affect the rules establishing substantive rights of consumers to contractual and non-contractual remedies in case their interests have been harmed by an infringement, such as the right to compensation for damages, contract termination, reimbursement, replacement, removal, repair or price reduction. A representative action seeking redress under this Directive can only be brought where Union or national law provides for such substantive rights.
Amendment 17
Proposal for a directive
Recital 24
(24)  This Directive does not replace existing national collective redress mechanisms. Taking into account their legal traditions, it leaves it to the discretion of the Member States whether to design the representative action set out by this Directive as a part of an existing or future collective redress mechanism or as an alternative to these mechanisms, insofar as the national mechanism complies with the modalities set by this Directive.
(24)  This Directive aims at a minimum harmonisation and does not replace existing national collective redress mechanisms. Taking into account their legal traditions, it leaves it to the discretion of the Member States whether to design the representative action set out by this Directive as a part of an existing or future collective redress mechanism or as an alternative to these mechanisms, insofar as the national mechanism complies with the modalities set by this Directive. It does not prevent Member States from maintaining their existing framework, neither does it oblige Member States to amend it. Member States will have the possibility to implement the rules provided for this Directive into their own system of collective redress or to implement them in a separate procedure.
Amendment 18
Proposal for a directive
Recital 25
(25)  Qualified entities should be fully transparent about the source of funding of their activity in general and regarding the funds supporting a specific representative action for redress in order to enable courts or administrative authorities to assess whether there may be a conflict of interest between the third party funder and the qualified entity and to avoid risks of abusive litigation as well as to assess whether the funding third party has sufficient resources in order to meet its financial commitments to the qualified entity. The information provided by the qualified entity to the court or administrative authority overseeing the representative action should enable it to assess whether the third party may influence procedural decisions of the qualified entity in the context of the representative action, including on settlements and whether it provides financing for a representative action for redress against a defendant who is a competitor of the fund provider or against a defendant on whom the fund provider is dependant. If any of these circumstances is confirmed, the court or administrative authority should be empowered to require the qualified entity to refuse the relevant funding and, if necessary, reject standing of the qualified entity in a specific case.
(25)  Qualified representative entities should be fully transparent about the source of funding of their activity in general and regarding the funds supporting a specific representative action for redress in order to enable courts or administrative authorities to assess whether there may be a conflict of interest between third party funder and the qualified entity and to avoid risks of abusive litigation as well as to assess whether the qualified entity has sufficient resources in order to represent the best interests of consumers concerned and to support all necessary legal costs should the action fail. The information provided by the qualified entity at the earliest stage of proceedings to the court or administrative authority overseeing the representative action should enable it to assess whether the third party may influence procedural decisions of the qualified entity in general and in the context of the representative action, including on settlements and whether it provides financing for a representative action for redress against a defendant who is a competitor of the fund provider or against a defendant on whom the fund provider is dependant. If any of these circumstances is confirmed, the court or administrative authority must be empowered to require the qualified entity to refuse the relevant funding and, if necessary, reject standing of the qualified entity in a specific case. Member States should prevent law firms from establishing qualified representative entities. Indirect financing of the action through donations, including traders donations in the framework of a corporate social responsibility initiatives, shall be eligible for third party financing provided that it complies with the requirements on transparency, independence and absence of conflict of interest listed in Article 4 and Article 7.
Amendment 19
Proposal for a directive
Recital 26
(26)  Collective out-of-court settlements aimed at providing redress to harmed consumers should be encouraged both before the representative action is brought and at any stage of the representative action.
(26)  Collective out-of-court settlements, such as mediation, aimed at providing redress to harmed consumers should be encouraged both before the representative action is brought and at any stage of the representative action.
Amendment 20
Proposal for a directive
Recital 27
(27)  Member States may provide that a qualified entity and a trader who have reached a settlement regarding redress for consumers affected by an allegedly illegal practice of that trader can jointly request a court or administrative authority to approve it. Such request should be admitted by the court or administrative authority only if there is no other ongoing representative action regarding the same practice. A competent court or administrative authority approving such collective settlement must take into consideration the interests and rights of all parties concerned, including individual consumers. Individual consumers concerned shall be given the possibility to accept or to refuse to be bound by such a settlement.
(27)  Member States may provide that a qualified entity and a trader who have reached a settlement regarding redress for consumers affected by an allegedly illegal practice of that trader can jointly request a court or administrative authority to approve it. Such request should be admitted by the court or administrative authority only if there is no other ongoing representative action regarding the same practice. A competent court or administrative authority approving such collective settlement must take into consideration the interests and rights of all parties concerned, including individual consumers. Settlements should be final and binding upon all parties.
Amendment 21
Proposal for a directive
Recital 29
(29)   In order to facilitate redress for individual consumers sought on the basis of final declaratory decisions regarding the liability of the trader towards the consumers harmed by an infringement issued within representative actions, the court or administrative authority that issued the decision should be empowered to request the qualified entity and the trader to reach a collective settlement.
deleted
Amendment 22
Proposal for a directive
Recital 30
(30)  Any out-of-court settlement reached within the context of a representative action or based on a final declaratory decision should be approved by the relevant court or the administrative authority to ensure its legality and fairness, taking into consideration the interests and rights of all parties concerned. Individual consumers concerned shall be given the possibility to accept or to refuse to be bound by such a settlement.
(30)  Any out-of-court settlement reached within the context of a representative action should be approved by the relevant court or the administrative authority to ensure its legality and fairness, taking into consideration the interests and rights of all parties concerned. The settlement are binding upon all parties without prejudice to any additional rights to redress that the consumers concerned may have under Union or national law.
Amendment 23
Proposal for a directive
Recital 32
(32)  To be effective, the information should be adequate and proportional to the circumstances of the case. The infringing trader should adequately inform all consumers concerned of a final injunction and redress orders issued within the representative action as well as of a settlement approved by a court or administrative authority. Such information may be provided for instance on the trader's website, social media, online market places, or in popular newspapers, including those distributed exclusively by electronic means of communication. If possible, consumers should be informed individually through electronic or paper letters. This information should be provided in accessible formats for persons with disabilities upon request.
(32)  To be effective, the information should be adequate and proportional to the circumstances of the case. Member States should ensure that the court or the administrative authority may require the defeated party to adequately inform all consumers concerned of a final decision concerning injunction and redress issued within the representative action, and both parties in cases of a settlement approved by a court or administrative authority. Such information may be provided for instance on the website, social media, online market places, or in popular newspapers, including those distributed exclusively by electronic means of communication. This information should be provided in accessible formats for persons with disabilities upon request. The defeated party shall bear the costs of consumer information.
Amendment 24
Proposal for a directive
Recital 32 a (new)
(32a)   Member States should be encouraged to set up a national register for representative actions free of charge, which could further enhance the transparency obligations.
Amendment 25
Proposal for a directive
Recital 33
(33)  To enhance legal certainty, avoid inconsistency in the application of Union law and to increase the effectiveness and procedural efficiency of representative actions and of possible follow-on actions for redress, the finding of an infringement established in a final decision, including a final injunction order under this Directive, issued by an administrative authority or a court should not be relitigated in subsequent legal actions related to the same infringement by the same trader as regards the nature of the infringement and its material, personal, temporal and territorial scope as determined by that final decision. Where an action seeking measures eliminating the continuing effects of the infringement, including for redress, is brought in a Member State other than the Member State where a final decision establishing this infringement was issued, the decision should constitute a rebuttable presumption that the infringement has occurred.
(33)  To enhance legal certainty, avoid inconsistency in the application of Union law and to increase the effectiveness and procedural efficiency of representative actions and of possible follow-on actions for redress, the finding of an infringement or a non-infringement established in a final decision, including a final injunction order under this Directive, issued by an administrative authority or a court should be binding upon all parties, which participated in the representative action. The final decision should be without prejudice to any additional rights to redress that the consumers concerned may have under Union or national law. The redress obtained through the settlement should also be binding upon cases involving the same practice, the same trader and the same consumer. Where an action seeking measures eliminating the continuing effects of the infringement, including for redress, is brought in a Member State other than the Member State where a final decision establishing this infringement or a non-infringement was issued, the decision should constitute an evidence that the infringement has or has not occurred in related cases. Member States shall ensure that a final decision of a court of one Member State establishing the existence or non-existence of the infringement for the purposes of any other actions seeking redress before their national courts in another Member State against the same trader for the same infringement shall be considered as a rebuttable presumption.
Amendment 26
Proposal for a directive
Recital 35
(35)  Actions for redress based on the establishment of an infringement by a final injunction order or by a final declaratory decision regarding the liability of the trader towards the harmed consumers under this Directive should not be hindered by national rules on limitation periods. The submission of a representative action shall have the effect of suspending or interrupting the limitation periods for any redress actions for the consumers concerned by this action.
(35)  Actions for redress based on the establishment of an infringement by a final injunction order regarding the liability of the trader towards the harmed consumers under this Directive should not be hindered by national rules on limitation periods. The submission of a representative action shall have the effect of suspending or interrupting the limitation periods for any redress actions for the consumers concerned by this action.
Amendment 27
Proposal for a directive
Recital 39
(39)  Having regard to the fact that representative actions pursue a public interest by protecting the collective interests of consumers, Member States should ensure that qualified entities are not prevented from bringing representative actions under this Directive because of the costs involved with the procedures.
(39)  Having regard to the fact that representative actions pursue a public interest by protecting the collective interests of consumers, Member States should ensure that qualified representative entities are not prevented from bringing representative actions under this Directive because of the costs involved with the procedures. However, subject to the relevant conditions under national law, this should be without prejudice to the fact that the party that loses a representative action reimburses necessary legal costs borne by the winning party (‘loser pays principle’). However, the court or administrative authority should not award costs to the unsuccessful party to the extent that they were unnecessarily incurred or are disproportionate to the claim.
Amendment 28
Proposal for a directive
Recital 39 a (new)
(39a)   Member States should ensure that contingency fees are avoided and lawyers’ remuneration and the method by which it is calculated do no create any incentive to litigation that is unnecessary from the point of view of the interest of consumers or any of the parties concerned and could prevent consumers from fully benefiting from the representative action. The Member States that allow for contingency fees should ensure that such fees do not prevent obtaining full compensation by consumers.
Amendment 29
Proposal for a directive
Recital 40
(40)  Cooperation and exchange of information between qualified entities from different Member States have proven to be useful in addressing cross-border infringements. There is a need for continuing and expanding the capacity-building and cooperation measures to a larger number of qualified entities across the Union in order to increase the use of representative actions with cross-border implications.
(40)  Cooperation and exchange of information, good practices and experience between qualified representative entities from different Member States have proven to be useful in addressing cross-border infringements. There is a need for continuing and expanding the capacity-building and cooperation measures to a larger number of qualified representative entities across the Union in order to increase the use of representative actions with cross-border implications.
Amendment 30
Proposal for a directive
Recital 41 a (new)
(41a)   In order to explore the possibility of having a procedure at Union level for cross-border representative actions, the Commission should assess the possibility of establishing a European Ombudsman for collective redress.
Amendment 31
Proposal for a directive
Article 1 – paragraph 1
1.  This Directive sets out rules enabling qualified entities to seek representative actions aimed at the protection of the collective interests of consumers, while ensuring appropriate safeguards to avoid abusive litigation.
1.  This Directive sets out rules enabling qualified representative entities to seek representative actions aimed at the protection of the collective interests of consumers and thereby, in particular, achieve and enforce a high level of protection and access to justice, while at the same time ensuring appropriate safeguards to avoid abusive litigation.
Amendment 32
Proposal for a directive
Article 1 – paragraph 2
2.  This Directive shall not prevent Member States from adopting or maintaining in force provisions designed to grant qualified entities or any other persons concerned other procedural means to bring actions aimed at the protection of the collective interests of consumers at national level.
2.  This Directive shall not prevent Member States from adopting or maintaining in force provisions designed to grant qualified representative entities or any public body other procedural means to bring actions aimed at the protection of the collective interests of consumers at national level. The implementation of this Directive shall under no circumstances constitute grounds for the reduction of consumer protection in fields covered by the scope of Union law.
Amendment 33
Proposal for a directive
Article 2 – paragraph 1
1.  This Directive shall apply to representative actions brought against infringements by traders of provisions of the Union law listed in Annex I that harm or may harm the collective interests of consumers. It shall apply to domestic and cross-border infringements, including where those infringements have ceased before the representative action has started or before the representative action has been concluded.
1.  This Directive shall apply to representative actions brought against infringements with a broad consumer impact by traders of provisions of the Union law listed in Annex I that protect the collective interests of consumers. It shall apply to domestic and cross-border infringements, including where those infringements have ceased before the representative action has started or before the representative action has been concluded.
Amendment 34
Proposal for a directive
Article 2 – paragraph 3
3.  This Directive is without prejudice to the Union rules on private international law, in particular rules related to court jurisdiction and applicable law.
3.  This Directive is without prejudice to the Union rules on private international law, in particular rules related to court jurisdiction, to the recognition and enforcement of judgements in civil and commercial matters and rules on the law applicable to contractual and non-contractual obligations, which apply to the representative actions set out by this Directive.
Amendment 35
Proposal for a directive
Article 2 – paragraph 3 a (new)
3 a.  This Directive is without prejudice to other forms of redress mechanisms provided for in national law.
Amendment 36
Proposal for a directive
Article 2 – paragraph 3 b (new)
3 b.  This Directive respects the fundamental rights, and observes the principles, recognised by the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights, and in particular the right to a fair and impartial trial and the right to an effective remedy.
Amendment 37
Proposal for a directive
Article 3 – paragraph 1 – point 1 a (new)
(1 a)  ‘consumer organisation’ means any group that seeks to protect consumers' interests from illegal acts or omissions committed by traders.
Amendment 38
Proposal for a directive
Article 3 – paragraph 1 – point 2
(2)  ‘trader’ means any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in their name or on their behalf, for purposes relating to their trade, business, craft or profession;
(2)  ‘trader’ means any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting in a civil capacity under the rules of civil law, including through any other person acting in their name or on their behalf, for purposes relating to their trade, business, craft or profession;
Amendment 39
Proposal for a directive
Article 3 – paragraph 1 – point 3
(3)  ‘collective interests of consumers’ means the interests of a number of consumers;
(3)  ‘collective interests of consumers’ means the interests of a number of consumers or of data subjects as defined in Regulation(EU)2016/679 (General Data Protection Regulation);
Amendment 40
Proposal for a directive
Article 3 – paragraph 1 – point 6 a (new)
(6 a)  "consumer law" means Union and national law adopted to protect consumers;
Amendment 41
Proposal for a directive
Article 4 – title
Qualified entities
Qualified representative entities
Amendment 42
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – introductory part
Member States or its courts shall designate within their respective territory at least one qualified representative entity for the purpose of bringing representative actions within the meaning of Article 3(4).
Member States shall designate an entity as qualified entity if it complies with the following criteria:
Member States shall designate an entity as qualified representative entity if it complies with all of the following criteria:
Amendment 43
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point b
(b)  it has a legitimate interest in ensuring that provisions of Union law covered by this Directive are complied with;
(b)  its statutes or another governance document and its continued activity involving the defence and protection of consumers interests demonstrate its legitimate interest in ensuring that provisions of Union law covered by this Directive are complied with;
Amendment 44
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point c a (new)
(c a)  it acts in a way that is independent from other entities and from persons other than consumers who might have an economic interest in the outcome of the representative actions, in particular from market operators;
Amendment 45
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point c b (new)
(c b)  it does not have financial agreements with plaintiff law firms beyond a normal service contract;
Amendment 46
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point c c (new)
(c c)  it has established internal procedures to prevent a conflict of interest between itself and its funders;
Amendment 47
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 3
Members States shall provide that the qualified representative entities disclose publicly, by appropriate means, such as on its website, in plain and intelligible language, how it is financed, its organisational and management structure, its objective and its working methods as well as its activities.
Member States shall assess on a regular basis whether a qualified entity continues to comply with these criteria. Member States shall ensure that the qualified entity loses its status under this Directive if it no longer complies with one or more of the criteria listed in the first subparagraph.
Member States shall assess on a regular basis whether a qualified representative entity continues to comply with these criteria. Member States shall ensure that the qualified representative entity loses its status under this Directive if it no longer complies with one or more of the criteria listed in the first subparagraph.
Member States shall establish a list of representative entities complying with the criteria listed in paragraph 1 and make it publicly available. They shall communicate the list to the Commission updated where necessary.
The Commission shall publish the list of representative entities received from the Member States on a publicly accessible online portal.
Amendment 48
Proposal for a directive
Article 4 – paragraph 1 a (new)
1 a.  Member States may provide that public bodies already designated before the entry into force of this Directive in accordance with national law shall remain eligible for the status of representative entity within the meaning of this Article.
Amendment 49
Proposal for a directive
Article 4 – paragraph 2
2.  Member States may designate a qualified entity on an ad hoc basis for a particular representative action, at its request, if it complies with the criteria referred to in paragraph 1.
deleted
Amendment 50
Proposal for a directive
Article 4 – paragraph 3
3.  Member States shall ensure that in particular consumer organisations and independent public bodies are eligible for the status of qualified entity. Member States may designate as qualified entities consumer organisations that represent members from more than one Member State.
3.  Member States shall ensure that consumer organisations meeting the criteria listed in paragraph 1 and public bodies are eligible for the status of qualified representative entity. Member States may designate as qualified representative entities consumer organisations that represent members from more than one Member State.
Amendment 51
Proposal for a directive
Article 4 – paragraph 4
4.  Member States may set out rules specifying which qualified entities may seek all of the measures referred to in Articles 5 and 6, and which qualified entities may seek only one or more of these measures.
deleted
Amendment 52
Proposal for a directive
Article 4 – paragraph 5
5.  The compliance by a qualified entity with the criteria referred to in paragraph 1 is without prejudice to the right of the court or administrative authority to examine whether the purpose of the qualified entity justifies its taking action in a specific case in accordance with Article 5(1).
5.  The compliance by a qualified entity with the criteria referred to in paragraph 1 is without prejudice to the duty of the court or administrative authority to examine whether the purpose of the qualified entity justifies its taking action in a specific case in accordance with Article 4 and Article 5(1).
Amendment 53
Proposal for a directive
Article 5 – paragraph 1
1.  Member States shall ensure that representative actions can be brought before national courts or administrative authorities by qualified entities provided that there is a direct relationship between the main objectives of the entity and the rights granted under Union law that are claimed to have been violated in respect of which the action is brought.
1.  Member States shall ensure that representative actions can be brought before national courts or administrative authorities only by qualified representative entities designated in accordance with Article 4(1) and provided that there is a direct relationship between the main objectives of the entity and the rights granted under Union law that are claimed to have been violated in respect of which the action is brought.
The qualified representative entities are free to choose any procedure available under national or Union law ensuring the higher level of protection of the collective consumer interest.
Member States shall ensure that no other ongoing action has been brought before a court or an administrative authority of a Member State regarding the same practice, the same trader and the same consumers.
Amendment 54
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 1 – introductory part
Member States shall ensure that qualified entities are entitled to bring representative actions seeking the following measures:
Member States shall ensure that qualified representative entities, including public bodies that have been designated in advance, are entitled to bring representative actions seeking the following measures:
Amendment 55
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 2
In order to seek injunction orders, qualified entities shall not have to obtain the mandate of the individual consumers concerned or provide proof of actual loss or damage on the part of the consumers concerned or of intention or negligence on the part of the trader.
In order to seek injunction orders, qualified representative entities shall not have to obtain the mandate of the individual consumers concerned and provide proof of actual loss or damage on the part of the consumers concerned or of intention or negligence on the part of the trader.
Amendment 56
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 2 – point a
(a)  an injunction order as an interim measure for stopping the practice or, if the practice has not yet been carried out but is imminent, prohibiting the practices;
(a)  an injunction order as an interim measure for stopping the illegal practice or, if the practice has not yet been carried out but is imminent, prohibiting the illegal practices;
Amendment 57
Proposal for a directive
Article 5 – paragraph 3
3.  Member States shall ensure that qualified entities are entitled to bring representative actions seeking measures eliminating the continuing effects of the infringement. These measures shall be sought on the basis of any final decision establishing that a practice constitutes an infringement of Union law listed in Annex I harming collective interests of consumers, including a final injunction order referred to in paragraph (2)(b).
3.  Member States shall ensure that qualified representative entities are entitled to bring representative actions seeking measures eliminating the continuing effects of the infringement.
Amendment 58
Proposal for a directive
Article 5 – paragraph 4
4.  Without prejudice to Article 4(4), Member States shall ensure that qualified entities are able to seek the measures eliminating the continuing effects of the infringement together with measures referred to in paragraph 2 within a single representative action.
deleted
Amendment 59
Proposal for a directive
Article 5 a (new)
Article 5a
Registry of collective redress actions
1.  Member States may set up a national register for representative actions, which shall be available free of charge to any interested person through electronic means and/or otherwise.
2.  Websites publishing the registries shall provide access to comprehensive and objective information on the available methods of obtaining compensation, including out of court methods as well as the pending representative actions.
3.  The national registries shall be interlinked. Article 35 of Regulation (EU) 2017/2394 shall apply.
Amendment 60
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1
1.  For the purposes of Article 5(3), Member States shall ensure that qualified entities are entitled to bring representative actions seeking a redress order, which obligates the trader to provide for, inter alia, compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid, as appropriate. A Member State may require the mandate of the individual consumers concerned before a declaratory decision is made or a redress order is issued.
1.  For the purposes of Article 5(3), Member States shall ensure that qualified representative entities are entitled to bring representative actions seeking a redress order, which obligates the trader to provide for, inter alia, compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid, as appropriate. A Member State may or may not require the mandate of the individual consumers concerned before a redress order is issued.
Amendment 61
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1 a (new)
1a.  If a Member State does not require a mandate of the individual consumer to join the representative action, this Member State shall nevertheless allow those individuals who are not habitually resident in the Member State where the action occurs, to participate in the representative action, in the event they gave their explicit mandate to join the representative action within the applicable time limit.
Amendment 62
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 2
The qualified entity shall provide sufficient information as required under national law to support the action, including a description of the consumers concerned by the action and the questions of fact and law to be resolved.
The qualified representative entity shall provide all the necessary information as required under national law to support the action, including a description of the consumers concerned by the action and the questions of fact and law to be resolved.
Amendment 63
Proposal for a directive
Article 6 – paragraph 2
2.  By derogation to paragraph 1, Member States may empower a court or administrative authority to issue, instead of a redress order, a declaratory decision regarding the liability of the trader towards the consumers harmed by an infringement of Union law listed in Annex I, in duly justified cases where, due to the characteristics of the individual harm to the consumers concerned the quantification of individual redress is complex.
deleted
Amendment 64
Proposal for a directive
Article 6 – paragraph 3
3.  Paragraph 2 shall not apply in the cases where:
deleted
(a)  consumers concerned by the infringement are identifiable and suffered comparable harm caused by the same practice in relation to a period of time or a purchase. In such cases the requirement of the mandate of the individual consumers concerned shall not constitute a condition to initiate the action. The redress shall be directed to the consumers concerned;
(b)  consumers have suffered a small amount of loss and it would be disproportionate to distribute the redress to them. In such cases, Member States shall ensure that the mandate of the individual consumers concerned is not required. The redress shall be directed to a public purpose serving the collective interests of consumers.
Amendment 65
Proposal for a directive
Article 6 – paragraph 4
4.  The redress obtained through a final decision in accordance with paragraphs 1, 2 and 3 shall be without prejudice to any additional rights to redress that the consumers concerned may have under Union or national law.
4.  The redress obtained through a final decision in accordance with paragraph 1shall be without prejudice to any additional rights to redress that the consumers concerned may have under Union or national law. The res judicata principle shall be respected in the application of this provision.
Amendment 66
Proposal for a directive
Article 6 – paragraph 4 a (new)
4 a.  The redress measures aim to grant consumers concerned full compensation for their loss. In case of unclaimed amount left from the compensation, a court shall decide on the beneficiary of the remaining unclaimed amount. This unclaimed amount shall not go to the qualified representative entity nor to the trader.
Amendment 67
Proposal for a directive
Article 6 – paragraph 4 b (new)
4 b.  In particular, punitive damages, leading to overcompensation in favour of the claimant party of the damage suffered, shall be prohibited. For instance, the compensation awarded to consumers harmed collectively shall not exceed the amount owed by the trader in accordance with the applicable national or Union law in order to cover the actual harm suffered by them individually.
Amendment 68
Proposal for a directive
Article 7 – title
Funding
Admissibility of a representative action
Amendment 69
Proposal for a directive
Article 7 – paragraph 1
1.  The qualified entity seeking a redress order as referred in Article 6(1) shall declare at an early stage of the action the source of the funds used for its activity in general and the funds that it uses to support the action. It shall demonstrate that it has sufficient financial resources to represent the best interests of the consumers concerned and to meet any adverse costs should the action fail.
1.  The qualified representative entity seeking a redress order as referred in Article 6(1) shall submit to the court or administrative authority at the earliest stage of the action a complete financial overview, listing all sources of funds used for its activity in general and the funds that it uses to support the action in order to demonstrate the absence of conflict of interest. It shall demonstrate that it has sufficient financial resources to represent the best interests of the consumers concerned and to meet any adverse costs should the action fail.
Amendment 70
Proposal for a directive
Article 7 – paragraph 2
2.  Member States shall ensure that in cases where a representative action for redress is funded by a third party, it is prohibited for the third party:
2.  The representative action may be declared inadmissible by the national court if it establishes that the funding by the third party would:
Amendment 71
Proposal for a directive
Article 7 – paragraph 2 – point a
(a)  to influence decisions of the qualified entity in the context of a representative action, including on settlements;
(a)  influence decisions of the qualified representative entity in the context of a representative action, including the initiation of representative actions and decisions on settlements;
Amendment 72
Proposal for a directive
Article 7 – paragraph 3
3.  Member States shall ensure that courts and administrative authorities are empowered to assess the circumstances referred to in paragraph 2 and accordingly require the qualified entity to refuse the relevant funding and, if necessary, reject the standing of the qualified entity in a specific case.
3.  Member States shall ensure that courts and administrative authorities assess the absence of conflict of interest referred to in paragraph 1 and the circumstances referred to in paragraph 2 at the stage of admissibility of the representative action and at a later stage during the court proceedings if the circumstances only yield then.
Amendment 73
Proposal for a directive
Article 7 – paragraph 3 a (new)
3 a.  Member States shall ensure that the court or administrative authority have the authority to dismiss manifestly unfounded cases at the earliest possible stage of proceedings.
Amendment 74
Proposal for a directive
Article 7 a (new)
Article 7 a
Loser pays principle
Member States shall ensure that the party that loses a collective redress action reimburses the legal costs borne by the winning party, subject to the conditions provided for in national law. However, the court or administrative authority shall not award costs to the unsuccessful party to the extent that they were unnecessarily incurred or are disproportionate to the claim.
Amendment 75
Proposal for a directive
Article 8 – paragraph 1
1.  Member States may provide that a qualified entity and a trader who have reached a settlement regarding redress for consumers affected by an allegedly illegal practice of that trader can jointly request a court or administrative authority to approve it. Such a request should be admitted by the court or administrative authority only if there is no other ongoing representative action in front of the court or administrative authority of the same Member State regarding the same trader and regarding the same practice.
1.  Member States may provide that a qualified representative entity and a trader who have reached a settlement regarding redress for consumers affected by an allegedly illegal practice of that trader can jointly request a court or administrative authority to approve it.
Amendment 76
Proposal for a directive
Article 8 – paragraph 6
6.  Individual consumers concerned shall be given the possibility to accept or to refuse to be bound by settlements referred to in paragraphs 1, 2 and 3. The redress obtained through an approved settlement in accordance with paragraph 4 shall be without prejudice to any additional rights to redress that the consumers concerned may have under Union or national law.
6.  The redress obtained through an approved settlement in accordance with paragraph 4 shall be binding upon all parties without prejudice to any additional rights to redress that the consumers concerned may have under Union or national law.
Amendment 77
Proposal for a directive
Article 9 – paragraph -1 (new)
-1 Member States shall ensure that the representative entities:
(a)  inform consumers about the claimed violation of rights granted under Union law and the intention to seek an injunction or to pursue an action for damages,
(b)  explain to consumers concerned already beforehand the possibility of joining the action in order to ensure that the relevant documents and other information necessary for the action are kept.
(c)  where relevant, inform about subsequent steps and the potential legal consequences.
Amendment 78
Proposal for a directive
Article 9 – paragraph 1
1.  Member States shall ensure that the court or administrative authority shall require the infringing trader to inform affected consumers at its expense about the final decisions providing for measures referred to in Articles 5 and 6, and the approved settlements referred to in Article 8, by means appropriate to the circumstance of the case and within specified time limits, including, where appropriate, through notifying all consumers concerned individually.
1.  Where a settlement or final decision benefits consumers who may be unaware of it, Member States shall ensure that the court or administrative authority shall require the defeated party or both parties to inform affected consumers at its expense about the final decisions providing for measures referred to in Articles 5 and 6, and the approved settlements referred to in Article 8, by means appropriate to the circumstance of the case and within specified time limits. Members States may provide that the information obligation can be complied with through publically available and easily accessible website.
Amendment 79
Proposal for a directive
Article 9 – paragraph 1 a (new)
1 a.  The defeated party shall bear the costs of consumer information in accordance with the principle laid down in Article 7.
Amendment 80
Proposal for a directive
Article 9 – paragraph 2
2.  The information referred to in paragraph 1 shall include in intelligible language an explanation of the subject-matter of the representative action, its legal consequences and, if relevant, the subsequent steps to be taken by the consumers concerned.
2.  The information referred to in paragraph 1 shall include in intelligible language an explanation of the subject-matter of the representative action, its legal consequences and, if relevant, the subsequent steps to be taken by the consumers concerned. The modalities and timeframe of the information shall be designed in agreement with the court or administrative authority.
Amendment 81
Proposal for a directive
Article 9 – paragraph 2 a (new)
2 a.  Member States shall ensure that information is made available to the public in an accessible way, on upcoming, ongoing and closed collective actions, including via media and online through a public website when a court has decided that the case is admissible.
Amendment 82
Proposal for a directive
Article 9 – paragraph 2 b (new)
2 b.  Member States shall ensure that public communications by qualified entities about claims are factual and take into account both the right for consumers to receive information and defendants’ reputational rights and rights to business secrecy.
Amendment 83
Proposal for a directive
Article 10 – paragraph 1
1.  Member States shall ensure that an infringement harming collective interests of consumers established in a final decision of an administrative authority or a court, including a final injunction order referred to in Article 5(2)(b), is deemed as irrefutably establishing the existence of that infringement for the purposes of any other actions seeking redress before their national courts against the same trader for the same infringement.
1.  Member States shall ensure that a final decision of an administrative authority or a court, including a final injunction order referred to in Article 5(2)(b), considered as evidence establishing the existence or non-existence of that infringement for the purposes of any other actions seeking redress before their national courts against the same trader for the same facts providing that the same damage cannot be compensated twice to the same consumers concerned.
Amendment 84
Proposal for a directive
Article 10 – paragraph 2
2.  Member States shall ensure that a final decision referred to in paragraph 1, taken in another Member State is considered by their national courts or administrative authorities as a rebuttable presumption that an infrigements has occured
2.  Member States shall ensure that a final decision referred to in paragraph 1, taken in another Member State is considered by their national courts or administrative authorities at least as evidence that an infrigements has occured
Amendment 85
Proposal for a directive
Article 10 – paragraph 2 a (new)
2 a.  Member States shall ensure that a final decision of a court of one Member State establishing the existence or non-existence of the infringement for the purposes of any other actions seeking redress before their national courts in another Member State against the same trader for the same infringement is considered a rebuttable presumption.
Amendment 86
Proposal for a directive
Article 10 – paragraph 3
3.  Member States shall ensure that a final declaratory decision referred to in Article 6(2) is deemed as irrefutably establishing the liability of the trader towards the harmed consumers by an infringement for the purposes of any actions seeking redress before their national courts against the same trader for that infringement. Member States shall ensure that such actions for redress brought individually by consumers are available through expedient and simplified procedures.
3.  Member States are encouraged to create a database containing all final decisions on redress actions that could facilitate other redress measures, and to share their best practices in this field.
Amendment 87
Proposal for a directive
Article 11 – paragraph 1
Member States shall ensure that the submission of a representative action as referred to in Articles 5 and 6 shall have the effect of suspending or interrupting limitation periods applicable to any redress actions for the consumers concerned, if the relevant rights are subject to a limitation period under Union or national law.
In accordance with national law, Member States shall ensure that the submission of a representative action as referred to in Articles 5 and 6 shall have the effect of suspending or interrupting limitation periods applicable to any redress actions for the individuals concerned, if the relevant rights are subject to a limitation period under Union or national law.
Amendment 88
Proposal for a directive
Article 13 – paragraph 1
Member States shall ensure that, at the request of a qualified entity that has presented reasonably available facts and evidence sufficient to support the representative action, and has indicated further evidence which lies in the control of the defendant, the court or administrative authority may order, in accordance with national procedural rules, that such evidence be presented by the defendant, subject to the applicable Union and national rules on confidentiality.
Member States shall ensure that, at the request of one of the parties that has presented reasonably available facts and sufficient evidence and a substantive explanation to support its views, and has indicated further specific and clear defined evidence which lies in the control of the other party, the court or administrative authority may order, in accordance with national procedural rules, that such evidence be presented by this party, as narrowly as possible on the basis of reasonably available facts, subject to the applicable Union and national rules on confidentiality. The order must be adequate and proportionate in the respective case and must not create an imbalance between the two parties involved.
Amendment 89
Proposal for a directive
Article 13 – paragraph 1 a (new)
1a.  Member States shall ensure that the courts limit the disclosure of evidence to what is proportionate. To determine whether any disclosure requested by a representative entity is proportionate, the court shall consider the legitimate interest of all parties concerned, namely to which extent the request for disclosure of evidence is supported by available facts and evidence and whether the evidence the disclosure of which is requested contains confidential information.
Amendment 90
Proposal for a directive
Article 13 – paragraph 1 b (new)
1b.  Member States shall ensure that national courts have the power to order the disclosure of evidence containing information where they consider it relevant to the action for damages.
Amendment 91
Proposal for a directive
Article 14 – paragraph 2
2.  Member States shall ensure that penalties may take the form of fines.
2.  Member States shall ensure that penalties may take, inter alia, the form of fines.
Amendment 92
Proposal for a directive
Article 14 – paragraph 3
3.  When deciding about the allocation of revenues from fines Member States shall take into account the collective interests of consumers.
3.  When deciding about the allocation of revenues from fines Member States shall take into account the collective interests. Member States may decide for such revenues to be allocated to a fund created for the purpose of financing representative actions.
Amendment 93
Proposal for a directive
Article 15 – title
Assistance for qualified entities
Assistance for qualified representative entities
Amendment 94
Proposal for a directive
Article 15 – paragraph 1
1.  Member States shall take the necessary measures to ensure that procedural costs related to representative actions do not constitute financial obstacles for qualified entities to effectively exercise the right to seek the measures referred to in Articles 5 and 6, such as limiting applicable court or administrative fees, granting them access to legal aid where necessary, or by providing them with public funding for this purpose.
1.  Member States shall be encouraged, in line with Article 7, to ensure that qualified representative entities have sufficient funds available for representative actions. They shall take the necessary measures to facilitate access to justice and shall ensure that procedural costs related to representative actions do not constitute financial obstacles for qualified entities to effectively exercise the right to seek the measures referred to in Articles 5 and 6, such as limiting applicable court or administrative fees or granting them access to legal aid where necessary, or by providing them with public funding for this purpose.
Amendment 95
Proposal for a directive
Article 15 – paragraph 1 a (new)
1 a.  Member States shall provide structural support to entities acting as qualified entities within the scope of this Directive.
Amendment 96
Proposal for a directive
Article 15 a (new)
Article 15a
Legal representation and fees
Member States shall ensure that the lawyers’ remuneration and the method by which it is calculated do not create any incentive to litigation, unnecessary from the point of view of the interest of any of the parties. In particular, Member States shall prohibit contingency fees.
Amendment 97
Proposal for a directive
Article 16 – paragraph 1
1.  Member States shall take the measures necessary to ensure that any qualified entity designated in advance in one Member State in accordance with Article 4(1) may apply to the courts or administrative authorities of another Member State upon the presentation of the publicly available list referred to in that Article. The courts or administrative authorities shall accept this list as proof of the legal standing of the qualified entity without prejudice to their right to examine whether the purpose of the qualified entity justifies its taking action in a specific case.
1.  Member States shall take the measures necessary to ensure that any qualified representative entity designated in advance in one Member State in accordance with Article 4(1) may apply to the courts or administrative authorities of another Member State upon the presentation of the publicly available list referred to in that Article. The courts or administrative authorities may review the legal standing of the qualified representative entity without prejudice to their right to examine whether the purpose of the qualified representative entity justifies its taking action in a specific case.
Amendment 98
Proposal for a directive
Article 16 – paragraph 2 a (new)
2 a.  Member State where a collective redress takes place may require a mandate from the consumers who are resident in this Member State and shall require a mandate from individual consumers based in another Member State when the action is cross-border. In such circumstances, a consolidated list of all consumers from other Member States who have given such a mandate will be provided to the court or administrative authority and the defendant at the beginning of an action.
Amendment 99
Proposal for a directive
Article 16 – paragraph 4
4.  If a Member State or the Commission raises concerns regarding the compliance by a qualified entity with the criteria laid down in Article 4(1), the Member State that designated that entity shall investigate the concerns and, where appropriate, revoke the designation if one or more of the criteria are not complied with.
4.  If a Member State, the Commission or the trader raises concerns regarding the compliance by a qualified representative entity with the criteria laid down in Article 4(1), the Member State that designated that entity shall investigate the concerns and, where appropriate, revoke the designation if one or more of the criteria are not complied with.
Amendment 100
Proposal for a directive
Article 16 a (new)
Article 16a
Public Register
Member States shall ensure that the relevant national competent authorities set up a publicly accessible register of unlawful acts that have been subject to injunction orders in accordance with the provisions of this Directive.
Amendment 101
Proposal for a directive
Article 18 – paragraph 2
2.  No later than one year after the entry into force of this Directive, the Commission shall assess whether the rules on air and rail passenger rights offer a level of protection of the rights of consumers comparable to that provided for under this Directive. Where that is the case, the Commission intends to make appropriate proposals, which may consist in particular in removing the acts referred to in points 10 and 15 of Annex I from the scope of application of this Directive as defined in Article 2.
deleted
Amendment 102
Proposal for a directive
Article 18 a (new)
Article 18a
Review clause
Without prejudice to Article 16, the Commission shall assess whether cross-border representative actions could be best addressed at Union level by establishing a European Ombudsman for collective redress. No later than three years after the entry into force of this Directive, the Commission shall draw up a report in this regard and submit it to the European Parliament and the Council, accompanied, if appropriate, by a relevant proposal.
Amendment 103
Proposal for a directive
Annex I – point 59 a (new)
(59a)   Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety (OJ L 11, 15.1.2002, p. 4).
Amendment 104
Proposal for a directive
Annex I – point 59 b (new)
(59b)   Directive 2014/35/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of electrical equipment designed for use within certain voltage limits (OJ L 96, 29.3.2014, p. 357).
Amendment 105
Proposal for a directive
Annex I – point 59 c (new)
(59c)   Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety.
Amendment 106
Proposal for a directive
Annex I – point 59 d (new)
(59d)   Directive 2014/31/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of non-automatic weighing instruments (OJ L 96, 29.3.2014, p. 107).
Amendment 107
Proposal for a directive
Annex I – point 59 e (new)
(59e)   Council Regulation (EEC) No 2136/89 of 21 June 1989 laying down common marketing standards for preserved sardines and trade descriptions for preserved sardines and sardine-type products.
Amendment 108
Proposal for a directive
Annex I – point 59 f (new)
(59f)   Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005.

(1) OJ C 440, 6.12.2018, p. 66.
(2) OJ C 461, 21.12.2018, p. 232.

Last updated: 27 March 2019Legal notice