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9/27/2018

Current events in German legislation – class action is now possible

On 14 June 2018 the German Parliament (Bundestag) voted to introduce the possibility for class action. The law will come into effect on 1st November 2018.

It is thus provided that certain (approved and qualified) consumer associations may, on behalf of consumers that are affected by a company’s breach of duty, file a single liability claim, which seeks to recognise the liability of the company concerned.

First, the consumer associations will have to fully document the cases of ten consumers and file a complaint on the basis of these ten cases affected by the same liability claim.

Secondly, and within a period of two months, a minimum of fifty affected consumers must join this claim and be registered in a litigation register that will be specifically created for this purpose by the Ministry of Federal Justice. If the fifty consumers are not registered within two months, the class action that seeks the recognition of liability will be dismissed.

The class action may result in a judgment or a settlement on the principle of liability, to which consumers will be able to refer to in order to assert their individual claims without having to file an individual law suit and without the principle of liability having to be discussed again.

Class actions have been possible in France since the Act of 17 March 2014 (see Articles L. 623-1 and seq. of the Consumer Code), which has been supplemented in the medical field by the Act of 26 January 2016 (see Articles L. 1143-1 et seq. of the Public Health Code), and in the fields of environment, workplace discrimination and data protection by the Act of 18 November 2016.

The French procedure appears to be more favourable than the one provided for under German law.

On the one hand, even though the class action must also be brought forth by approved and authorised consumer associations, it is already admissible starting from two consumers affected by the same breach of a duty by a company (and not 50 according to German law).

On the other hand, the companies, whose liability has been recognised, must, following the judgment ruling on the principle of liability, themselves organise an information campaign thereby permitting the affected consumers to make themselves known. The latter then have a period of two to six months to file their individual compensation claims, which are then handled directly by the professional according to the precise criteria laid down in the judgment beforehand. In the absence of compensation by the professional, the consumers may refer the matter to the judge again.

Concerning this question see full article by Céline Lustin-Le Core published in the specialized magazine Getting the Deal Through

Solène Marais                                                                                              27 September 2018

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