ETNO and GSMA joint position paper on the proposal for a Directive on Representative Actions for the Protection of the Collective Interests of the Consumers
ETNO and the GSMA welcome the objective to improve law enforcement and strengthening consumer protection across the EU, irrespective of the location of size of an undertaking. This also requires Member States to provide sufficient resources, which is unfortunately not addressed in this proposal. Rules should be fully harmonised, providing Member States some flexibility to specify EU level provisions. As general remark, we believe that the new rules should take into account sector specific law to make sure they are aligned and do not create too much burden on actors that are already strictly regulated.
- The definition of qualified entities as well as their rights and obligation need to be further specified to avoid any risk that collective actions through such entities becomes a commercial business model.
- As a key proposal in this Directive, we believe that collective action should be based on harm identified by consumers and consumers’ mandate should therefore be required. Such action must also ensure legal certainty for undertakings and ensure the “ne bis in idem” principle.
- Any redress mechanism should be based on an individual court decision in principle. Giving flexibility to Member States to introduce mechanisms such as automatic compensation would thus be misleading and create legal uncertainty.
- Concerning funding, we fully agree that qualified entities have to ensure and demonstrate sufficient own resources. It has to be specified that funding through third parties, who have commercial interests, have to be prohibited.
- Settlements need to remain voluntary and agreements need to ensure legal certainty, not becoming binding blue prints for other cases.
- Information on representative action should be provided through those communication channels normally used by undertakings. Providing individual information is extremely burdensome and in many cases not possible.
- New obligations for undertakings to share information to provide evidence need to respect business secrecy and not be excessive.
- Suspension of limitation periods for any consumer not being party in a specific case is unreasonable, adds little value and creates high legal uncertainty for undertakings.
- Assisting measures such as refunding of any case-related costs are misleading and over-load courts with unreasonable complaints. Instead qualified entities should be supported sufficiently by public funds in general.
- Considering cross-border infringements has to be limited, taking into account that there is no fully harmonised consumer law across Member States.