Collective Actions in Collective Actions in Civil ProcedureCivil Procedure

a comparative overviewa comparative overview

GermanyGermany

Political Issue: Public interest enforced Political Issue: Public interest enforced through administrative rather than through administrative rather than judicial means. Overtaxed European judicial means. Overtaxed European economies finance public agencies to economies finance public agencies to monitor market and public interest. monitor market and public interest. Judicial intervention viewed as Judicial intervention viewed as burdensomeburdensome

Economic Analysis: Fear of astronomic Economic Analysis: Fear of astronomic sums and fees. Do European markets sums and fees. Do European markets support „class actions“? support „class actions“?

Brazil and Latin Brazil and Latin AmericaAmerica Political Issues: a) Public agencies Political Issues: a) Public agencies

have a lack of resources to enforce have a lack of resources to enforce public interests; b) Is the judiciary public interests; b) Is the judiciary adequate in delivering social justice?adequate in delivering social justice?

Economic Analysis: a) the state as Economic Analysis: a) the state as defendant: tax payers pay the bill; b) defendant: tax payers pay the bill; b) more social justice or more economic more social justice or more economic growth?growth?

2 Collective Actions2 Collective Actions

Public Interest: Public Interest: collective rights collective rights (quality of life or (quality of life or non-exclusion non-exclusion rights)rights)

Injunction and Injunction and declaratory relief, declaratory relief, Stop OrdersStop Orders

Individual rights Individual rights in collective in collective proceduresprocedures

Monetary reliefMonetary relief

German Injunction German Injunction ActionsActions UnterlassungsklagegesetzUnterlassungsklagegesetz – – UKlaGUKlaG

(2002): Injunctions in unfair consumer (2002): Injunctions in unfair consumer contracts (§ 1) and unlawful practices contracts (§ 1) and unlawful practices (§ 2).(§ 2).

UnterlassungsklageUnterlassungsklage (UWG): Unfair (UWG): Unfair Competition Act (§ 8): InjunctionCompetition Act (§ 8): Injunction

BehindertengleichstellungsgesetzBehindertengleichstellungsgesetz: : Disabled Rights Act (§ 13): all sorts of Disabled Rights Act (§ 13): all sorts of claimsclaims

Brazilian Collective Brazilian Collective Actions LegislationActions Legislation Public Civil Action Act (7,347/85): Public Civil Action Act (7,347/85):

environmental and cultural rights environmental and cultural rights protectionprotection

Consumer Code (8,072/90)Consumer Code (8,072/90) Disadvantaged: children (8,089/90), Disadvantaged: children (8,089/90),

elderly people (10,741/2003), the elderly people (10,741/2003), the disabled (7,853/89)disabled (7,853/89)

Investors in the stock market Investors in the stock market (7,913/89)(7,913/89)

Adequate Adequate representativesrepresentatives Germany: consumer associations as Germany: consumer associations as

„qualified entities“ (Directive 98/27). „qualified entities“ (Directive 98/27). They must be registered at the They must be registered at the Ministry of Administration. § 4 UKlaGMinistry of Administration. § 4 UKlaG

Brazil: Office of Attorney-General, Brazil: Office of Attorney-General, non-profit associations, among non-profit associations, among others public entities. Art. 82 others public entities. Art. 82 Consumer Code.Consumer Code.

An Industry dumps An Industry dumps toxic waste in rivertoxic waste in river Germany: primarily through self-Germany: primarily through self-

enforcement of administrative acts. enforcement of administrative acts. Damages must be sought individually. Damages must be sought individually.

Brazil: Stop order based upon Public Brazil: Stop order based upon Public Civil Action Act (art. 1.), order to Civil Action Act (art. 1.), order to reinstate the status quo ante (specific reinstate the status quo ante (specific performance) or, when not possible, performance) or, when not possible, to award damages to a public fund.to award damages to a public fund.

Government plans to Government plans to build new airport with build new airport with environmental objectionsenvironmental objections Brazil: Action based upon art. 1. Public Brazil: Action based upon art. 1. Public

Civil Action Act (7.347/85). Stop order Civil Action Act (7.347/85). Stop order and possibly monetary relief to a public and possibly monetary relief to a public fund.fund.

Germany: Environmental Associations Germany: Environmental Associations can seek declaratory relief: declaring the can seek declaratory relief: declaring the administrative act illegal (Administrative administrative act illegal (Administrative Courts), based upon Federal Courts), based upon Federal Environmental Act.Environmental Act.

Telecom inserts unfair Telecom inserts unfair clause charging $1 clause charging $1 Germany: Injunction Action (Stop Germany: Injunction Action (Stop

order), based upon § 307 ff BGB. order), based upon § 307 ff BGB. Monetary relief only in individual Monetary relief only in individual actions. Former contracts are valid.actions. Former contracts are valid.

Brazil: Declaratory (the clause is void, Brazil: Declaratory (the clause is void, art. 81, II) based upon art. 51 (unfair art. 81, II) based upon art. 51 (unfair clauses CDC) and monetary relief clauses CDC) and monetary relief addressed to the consumers (art. 81, addressed to the consumers (art. 81, III).III).

Bank charges hidden Bank charges hidden costs to its clientscosts to its clients Brazil: Public Civil Action based Brazil: Public Civil Action based

upon unfair practice (Consumer upon unfair practice (Consumer Code) monetary recoveryCode) monetary recovery

Germany: Injunction Action (Stop Germany: Injunction Action (Stop order), based upon § 3 UKlaGorder), based upon § 3 UKlaG

Transport companies Transport companies form a cartel to impose form a cartel to impose artificial freight pricesartificial freight prices Brazil: Public Civil Action based upon Brazil: Public Civil Action based upon

art. 29 Unfair Competition Act art. 29 Unfair Competition Act (8,884/94). Monetary relief to the (8,884/94). Monetary relief to the class members class members

Germany: Injunction Action based Germany: Injunction Action based upon § 1 UWG – Stop order and § 10 upon § 1 UWG – Stop order and § 10 – monetary relief as punitive – monetary relief as punitive damages to the state damages to the state (Gewinnabschöpfung)(Gewinnabschöpfung)

Medicine causes Medicine causes harmful side-effectharmful side-effect Brazil: Public Civil Action based Brazil: Public Civil Action based

upon Consumer Code seeking upon Consumer Code seeking monetary relief and injunction to monetary relief and injunction to withdraw product from market.withdraw product from market.

Germany: Social Security for Germany: Social Security for personal injuries. Injunction based personal injuries. Injunction based upon § 2, II, 5 UKlaG. Public upon § 2, II, 5 UKlaG. Public Agency probably intervenes first.Agency probably intervenes first.

Gas explosion in Gas explosion in shopping centre: injuries shopping centre: injuries and damagesand damages Brazil: Action based upon art. 81, Brazil: Action based upon art. 81,

III Consumer Code (homogeneous III Consumer Code (homogeneous individual rights)individual rights)

Germany: no collective action. Germany: no collective action. Social Security pays for injuries Social Security pays for injuries and seeks regress against those and seeks regress against those responsible.responsible.

Advertisement lures Advertisement lures consumers into buying consumers into buying holiday packages with holiday packages with hidden costshidden costs

Brazil: Public Civil Action based upon Brazil: Public Civil Action based upon Consumer Code: order to stop the ad, Consumer Code: order to stop the ad, and alternatively – to force the and alternatively – to force the company to keep to the offered price company to keep to the offered price or monetary reliefor monetary relief

Germany: Injunction Action based Germany: Injunction Action based upon § 5 UWG (unfair competition act): upon § 5 UWG (unfair competition act): stop order. Sort of punitive damages to stop order. Sort of punitive damages to the state (the state (GewinnabschöpfungGewinnabschöpfung) in § 10.) in § 10.

Access for disabled Access for disabled people to public people to public buildingbuilding Brazil: Public Civil Action based Brazil: Public Civil Action based

upon Handicapped Protection Act upon Handicapped Protection Act (art. 3). Order to perform.(art. 3). Order to perform.

Germany: associations can sue on Germany: associations can sue on behalf of disabled people, based behalf of disabled people, based upon § 13 Disabled Protection Act upon § 13 Disabled Protection Act all claims, including monetary all claims, including monetary relief.relief.

Adequate representative Adequate representative seeks to declare a tax seeks to declare a tax unconstitutionalunconstitutional Brazil: Supreme Courts (STJ and Brazil: Supreme Courts (STJ and

STF) do not allow such actions. STF) do not allow such actions. Unconstitutionality in general Unconstitutionality in general terms is STF competence.terms is STF competence.

Germany: Federal Constitutional Germany: Federal Constitutional Court jurisdiction (but not in Court jurisdiction (but not in Collective Actions)Collective Actions)

Substantive Act imposes Substantive Act imposes government to provide government to provide adequate public services adequate public services (prisons, schools, etc.) (prisons, schools, etc.) Brazil: High Courts (STJ) start to Brazil: High Courts (STJ) start to

admit specific performance in admit specific performance in such actions, based upon Public such actions, based upon Public Civil Action ActCivil Action Act

Germany: executive matter.Germany: executive matter.

PerspectivesPerspectives

Germany: Gradually developing Germany: Gradually developing collective actions seeking monetary collective actions seeking monetary awards. European Union pressure to awards. European Union pressure to introduce a class action.introduce a class action.

Brazil: Project to introduce a Brazil: Project to introduce a Collective Procedures Code: creative Collective Procedures Code: creative solutions, wide-ranged application.solutions, wide-ranged application.