23 Amendments of Andreas SCHWAB related to 2011/2089(INI)
Amendment 4 #
Draft opinion
Recital B
Recital B
B. whereas individual lawsuits are often notmay not constitute an effective means to stop unlawful practices or to obtain compensation, as consumers are reluctant to initiate private lawsuits, in particular if the individual loss is small in comparison to the costs,
Amendment 8 #
Draft opinion
Recital B a (new)
Recital B a (new)
B a. whereas, according to the Special Eurobarometer survey on Access to Justice in the EU-15 of October 2004, one out of five consumers, and one out of two consumers, will not go to court for disputes amounting to less than 1000 euros and 200 euros respectively,
Amendment 10 #
Draft opinion
Recital C
Recital C
C. whereas, according to the Flash Eurobarometer on 'Consumer attitudes towards cross-border trade and consumer protection' of March 2011, 79 % of European consumers state that they would be more willing to defend their rights in court if they could join a collective action,
Amendment 18 #
Draft opinion
Recital E a (new)
Recital E a (new)
E a. Whereas sixteen Member States have so far introduced collective redress mechanisms in their legal system, with wide differences in terms of scope, procedural characteristics (legal standing, categories of victims, type of procedure (opt-in/opt-out), financing or role played by alternative dispute resolution mechanisms in parallel to judicial redress) and effectiveness, creating a true legal patchwork at EU level,
Amendment 21 #
Draft opinion
Recital G
Recital G
G. whereas the integration of European markets and the consequent increase in cross-border activities highlight the need for a coherent EU-wide approach to address the numerous mass detriment cases where consumers are left empty handed as the procedures for the collective claim of compensatory relief which have been introduced in a number of Member States do not provide for cross- border solutions,
Amendment 24 #
Draft opinion
Paragraph 3 a (new)
Paragraph 3 a (new)
3a. Stresses that, moreover, safeguards must be created, as follows: – the applicants must be identified before the claim is brought (‘opt-in procedure’); a representative body may bring an action only on behalf of a group clearly identified in this way; an opt-out system has on the other hand to be rejected on the grounds that it violates the rights of any victim who might participate in the procedure unknowingly and yet would be bound by the court’s decision; this would be contrary to the procedural rights of the individual laid down in the Constitutions of many Member States; – the procedural costs and hence the risk involved in legal action are to be borne by the party which loses the case; it is a matter for the Member States to lay down rules on the allocation of costs in this context; – it is not desirable for procedures to be prefinanced by third parties, for example by claimants agreeing to surrender to third parties possible subsequent entitlements to compensation; – each claimant must prove his claim; an obligation to disclose documents must be rejected at European level;
Amendment 25 #
Draft opinion
Paragraph 3 b (new)
Paragraph 3 b (new)
3b. Expresses its concern as to whether the Union legislature has a sufficient legal basis to regulate the aforementioned safeguards;
Amendment 27 #
Draft opinion
Paragraph 1
Paragraph 1
1. Stresses that, as a consequence of the weaknesses of the current redress and enforcement framework in the EU, a significant the existing legal framework at EU level to put an end to infringements and encourage cooperation between competent national authorities suffers from several shortcomings; calls on the Commission to further reinforce and increase the effectiveness of Directive 98/27/EC on injunctions for the proportection of consumers and SMEs who have suffered damage do not obtain redress, and continued illegal practices cause significant aggregate loss to society' interests and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws, in order to ensure appropriate public enforcement of consumers' rights in the EU; insists nonetheless on the fact that neither Directive 98/27/EC nor Regulation (EC) No 2006/2004 allow for consumers to be compensated for the damage suffered;
Amendment 47 #
Draft opinion
Paragraph 6
Paragraph 6
6. Believes that numerous previous consultations have allowedInsists on the added value of an EU action for the identification of the relevant gaps in the existing regulatory framework, thus providing adequate evidence of the need for an EU action in the field of collective redress to remedy the current shortcomingsfinition of a common framework in the field of collective redress given the shortcomings and lack of effectiveness of existing EU legal instruments, the diversity of situations at national level, and the risk of abuses entailed by the potential evolution and reforms of existing national collective redress systems and/or the introduction of collective redress systems in Member States where such instruments do not yet exist;
Amendment 51 #
Draft opinion
Paragraph 7
Paragraph 7
7. Calls therefore on the Commission to submit a proposal, including possibly a legislative initiative, establishing a set of common principles and safeguards for a collective redress mechanism applicable to both national and cross-border cases, while taking due account of the EU legal tradition and the legal orders of the 27 Member States, and in accordance with the principles of subsidiarity and proportionality provided for in Article 5 of the Treaty on the European Union;
Amendment 65 #
Draft opinion
Paragraph 9
Paragraph 9
9. Emphasises that early settlement of disputes should be encouraged where possible, and court litigation should be viewed as the last resortthe use of alternative dispute resolution mechanisms (ADR) must be strongly encouraged and that court litigation must be viewed as the last resort; underlines that ADR mechanisms and collective redress are complementary and not mutually exclusive, and that the introduction of collective redress will most probably boost the effectiveness of ADR schemes by acting as a "judicial threat" ;
Amendment 71 #
Draft opinion
Paragraph 10
Paragraph 10
10. Stresses that a European approach to collective redress shouldmust not give any economic incentive to bring abusive collective actions, and should provide for strong and effective safeguards to avoid unmeritorious claims and disproportionate costs for businesses, particularly in this period of financial crisis;
Amendment 73 #
Draft opinion
Paragraph 11
Paragraph 11
11. Underlines that an effective collective redress system should be capable of delivering legally certain, fair and adequate outcomes within a reasonable timeframe, while respecting the rights of all parties involved; considers that the EU approach to collective redress should include the possibility to appeal the Court's decision within a specific timeframe;
Amendment 76 #
Draft opinion
Paragraph 12
Paragraph 12
12. Emphasises that features which encourage a litigation culture such as punitive damages, contingency fees, the absence of limitations as regards standing, and excessive damagesird- party financing, the lack of control over representative entities standing in court, the opt-out principle, the possibility for lawyers to canvass potential victims, and the discovery procedure for bringing evidence to court are not compatible with the European legal tradition and should be avoidmust be rejected;
Amendment 78 #
Draft opinion
Paragraph 12 a (new)
Paragraph 12 a (new)
12 a. Stresses that, in order to ensure the efficiency of the system and to avoid potential abuses, the EU approach to collective redress should only include representative action by entities duly recognised at national level (public authorities, such as the Ombudsmen or consumer organisations); calls on the Commission to define a common set of criteria that consumer organisations must fulfil in order to be able to stand in court to avoid forum-shopping; stresses that national competent authorities should be responsible for checking that consumer organisations comply with such criteria;
Amendment 79 #
Draft opinion
Paragraph 12 b (new)
Paragraph 12 b (new)
12 b. Insists on the need to build the European approach to collective redress on the opt-in principle, whereby victims are clearly identified and take part in the procedure only if they expressly indicated their wish to do so, in order to avoid potential abuses;
Amendment 82 #
Draft opinion
Paragraph 13
Paragraph 13
13. StressesInsists on the fact that, in the efficiency of collective redress requires a representative entity (e.g. Ombudsmen, consumer or trade associcase of cross-border disputes, the representative entity (public authority or authorised consumer organisations) toshould be able to stand forrepresent victims from other Member States, whereas ao joined the collective repdresentative entity could be also allowed to represent victims in judicial or out-of-court proceedingss procedure, and should likewise be able to stand for victims joining a collective redress procedure in another Member State;
Amendment 95 #
Draft opinion
Paragraph 15
Paragraph 15
15. Considers that the judgecourt should also determine howensure that the compensation is to be organisfairly distributed and check if funding arrangements are fair; stresses that court control mechanisms and proportionality requirements would protect defendants against abuse of the system;
Amendment 98 #
Draft opinion
Paragraph 15 b (new)
Paragraph 15 b (new)
15 b. Insists on the need to respect the loser pays principle according to which the losing party pays for the costs of the proceedings in order to avoid the proliferation of unmeritorious claims;
Amendment 99 #
Draft opinion
Paragraph 16
Paragraph 16
16. Emphasises that the provision of information about collective actions plays a major role in the accessibility and the effectiveness of the procedure as consumers need to be aware that they have been the victims of the same illegal practice and that there is a collective action launched, including in another Member State; calls on Member States to put in place efficient mechanisms ensuring that a maximum of victims are informed and made aware of their rights and obligations, in particular when those are domiciled in several Member States;
Amendment 110 #
Draft opinion
Paragraph 17
Paragraph 17
17. Affirms that, in order to make collective actions practically possible, Member States should ensure that adequate funding mechanisms are made available; stresses that public authorities should refuse to allocate resources to unmeritorious claims; suggests to the Commission to work on the possibility of creating a fund financed by a certain percentage of the fines imposed by public authorities to sanction practices infringing upon EU competition law; proposes that such fund could then be used to finance collective redress procedures when the representative entity cannot afford to bring the case to court;
Amendment 112 #
Draft opinion
Paragraph 17 b (new)
Paragraph 17 b (new)
17 b. Considers that, in any event, compensations cannot be used to finance collective redress procedures since only the damage actually suffered by the claimants must be compensated;
Amendment 116 #
Draft opinion
Paragraph 18
Paragraph 18