Collective redress : broadening EU enforcement through

state liability?
MARSON, James <http://orcid.org/0000-0001-9705-9671> and FERRIS, Katy
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MARSON, James and FERRIS, Katy (2016). Collective redress : broadening EU
enforcement through state liability? European Business Law Review, 27 (3).

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 COLLECTIVE REDRESS: BROADENING EU ENFORCEMENT
THROUGH STATE LIABILITY?
James Marson* and Katy Ferris**

ABSTRACT. This article advances an argument that private enforcement of

European Union (EU) rights has largely been stunted due to a series of blocking
tactics by Member States, enabled through a form of tacitic subservience of the
Court of Justice of the European Union. Currently, State Liability is neither an
effective system of redress under tortious liability, nor a genuine enforcement
mechanism in domestic law. By enabling collective redress in State Liability, we
present an argument, missing explicitly in current literature, that both as a viable
remedy through the (UK’s modified) tort of breach of statutory duty, and through
granting effective redress through action by the EU Commission, State Liability will
become the mechanism for corrective justice the Court of Justice envisaged in 1991.
In 2011, the EU Commission issued a non-binding Recommendation establishing
collective redress for breach of competition law. Could this be seen as positive
positioning by the EU to seize the initiative for greater access to individuals of justice
and justiciable solutions?

Keywords: State liability, collective redress, enforcement mechanisms, statutory

duty, EU Commission, damages.

I. INTRODUCTION
The purpose of this article is to critique the remedy of State Liability for individuals
suffering loss as a result of a Member States’ non-implementation or incorrect
transposition of EU law. ‘Enforcement mechanisms’ is a topic which has been
considered through a vast literature and from varying perspectives. Even a novice to
the subject will be aware that as a consequence of membership of the EU,
obligations have been imposed on individuals (and not confined to the signatory
Member State) to follow laws derived from the EU. A corollary to this has been to
ensure individuals have the full access to protective rights established at an EU
level. Typically, the EU creates a directive (the most common source of EU
legislation) which establishes harmonisation of the law through the 28 Member
States. Directives are an oft used legislative instrument as they do not impose the
rigidity and uniformity of EU Regulations, and whilst binding as to the result to be
achieved, they grant to Member States discretion as to the choice of form and
methods through which to give effect to (or, in the parlance, to transpose) the law.1
The intention has always been that in using directives as a legislative source, the EU
articulates the main aims and objectives of the necessary law, it provides the
Member States a period of time within which to transpose the law into their legal
systems, and thereafter, individuals access the law through the domestic transposing
provision. Where access to the EU law in this manner is not possible (due to, for

*
Principal Lecturer in Law, Sheffield Hallam University.
**
Senior Lecturer in Law, The University of Huddersfield.
1
Article 288 Treaty on the Functioning of the European Union (TFEU).

1
example, the Member State’s non-implementation or incorrect transposition of the
law), the EU Commission has the authority to compel a Member State’s compliance.
The Treaty on the Functioning of the European Union (TFEU) provides for
enforcement through, first, a (pre-litigation) notification and secondly, a judicial
procedure,2 - the Commission fulfilling the role of ‘guardian of the treaties.’ The
Commission has a substantial role of ensuring Member States conform to obligations
and it possesses unlimited discretion3 as to which cases are brought before the
Court of Justice. Beyond investigations undertaken under its volition, other Member
States,4 individuals and organisations are also empowered to complain to the
Commission regarding alleged infringements. The Commission has the power to fine
Member States for late transposition of directives through a special penalty regime. 5
However, despite this power, late transposition notices are not uncommon – for
instance they have previously been applied against more than two-thirds of Member
States,6 and even against 237 Member States in a further example.
Where the notification procedure of ensuring compliance fails, the
Commission may launch infringement proceedings at the Court of Justice. In 2012,
there were 1343 infringement cases open,8 and although this number has fallen
consistently since 2009,9 and the explicit intentions of the Commission produce
demonstrable improvements in the levels of Member State compliance,10 there
remain complaints from both academics11 and the EU Parliament12 regarding the

2
Articles 258-260 TFEU.
3
The discretionary investigatory power is sometimes negatively viewed as enabling selective
enforcement. See Richard Rawlings, Engaged Elites Citizen Action and Institutional Attitudes in
Commission Enforcement, 6 European Law Journal 4, 10 (2000).
4
Available in Article 259 TFEU, although, given the political ramifications for undertaking such an
action, its use (and success) has been very limited (the following cases are where this mechanism
has been used - Case 141/78 France v United Kingdom [1979] E.C.R. 2923; Case C-388/95 Belgium
v Spain [2000] E.C.R. I-3123; Case C-145/05 Spain v United Kingdom [2006] E.C.R. I-7917; Case C-
364/10 Hungary v Slovakia).
5
Article 260(3) TFEU.
6
Regarding Directive 2010/78/EU of the European Parliament and of the Council of 24 November
2010 amending Directives 98/26/EC, 2002/87/EC, 2003/6/EC, 2003/41/EC, 2003/71/EC, 2004/39/EC,
2004/109/EC, 2005/60/EC, 2006/48/EC, 2006/49/EC and 2009/65/EC in respect of the powers of the
European Supervisory Authority (European Banking Authority), the European Supervisory Authority
(European Insurance and Occupational Pensions Authority) and the European Supervisory Authority
(European Securities and Markets Authority) (L 331/120).
7
In respect of Directive 2010/78/EU of the European Parliament and of the Council of 24 November
2010 amending several Directives in respect of the powers of the European Supervisory Authority
(European Banking Authority), the European Supervisory Authority (European Insurance and
Occupational Pensions Authority) and the European Supervisory Authority (European Securities and
Markets Authority).
8
Of these, 1062 were closed following compliance by the Member State, but 128 cases were still
open as it could not be confirmed that the Member State had complied with the judgment of the Court
of Justice.
9
http://ec.europa.eu/eu_law/docs/docs_infringements/annual_report_30/com_2013_726_en.pdf. p. 8
10
See Robert Thompson, Opposition Through the Back Door in the Transposition of EU Directives,
11 European Union Politics, 577, 592 (2010) ‘The… states’… deviat[ion] is effectively reduced to zero
when the Commission explicitly supports a Directive’s provision. Such support signals the
Commission’s intention to monitor compliance stringently in Member States that express incentives to
deviate.’
11
Melanie Smith, Enforcement, Monitoring, Verification, Outsourcing: The Decline and Decline of the
Infringement Process, 14 European Law Review 777 (2008) and Carol Harlow & Richard Rawlings,
Accountability and Law Enforcement: The Centralised EU Infringement Procedure, 12 European Law
Review 447 (2006).

2
efficacy and transparency of the system of infringement proceedings. Enforcement
actions by the Commission remain an important13 and significant aspect of effective
governance,14 yet all too frequently, it has been reported that this system is not fit for
purpose,15 does not provide accessible justice for those individuals affected, does
not deter Member States sufficiently from flagrant breaches of EU law, and has been
restricted in its success16 due to the expanding membership and competence of the
EU. It is clear, even by the admission of the Commission itself, that EU law is
frequently not being implemented and enforced in a satisfactory manner.17
The focus of enforcement by the Commission is to ensure Member States
fulfil their obligations, and whilst a breach often results in individuals being denied
access to rights conferred by the EU, the sanctions imposed on the recalcitrant State
do not take into account the effects of such a breach or associated losses incurred
by individuals. No private remedy is provided through enforcement at an EU level.
This is the remit of the domestic level of enforcement.
Beginning with the direct effect of treaty articles (and later directives), affected
individuals who were denied access to EU rights due to, for example, the non-
transposition of a directive, could argue that the national court had to give effect to
the directive directly in that court. This was a remedy only available against a State
body or (latterly) an emanation of the State, and hence could not be used between
private parties (such as an employee with a claim against an employer unless it
involved an ‘advance effect’ or ‘negative effect’ of directives through a Mangold18-
type application). Due to this constraint in the law, the Court of Justice developed the
remedy of indirect effect and its requirement of a purposive method of statutory
interpretation19 (but which was of very limited use in the case of non-transposition of
the directive and where no domestic law, capable of a purposive interpretation,
existed). Finally, through Francovich20 and the establishment of the State’s non-
contractual liability for losses, the Court created a system of compensatory redress
for individuals to be provided through the national law, and enforceable through the

12
The lack of transparency in proceedings was raised by the European Parliament in ‘Report on the
25th Annual Report from the Commission on Monitoring the Application of Community Law (2007)’
A6-0245/2009, para 13.
13
See Jonas Tallberg, Paths to Compliance: Enforcement, Management, and the European Union, 56
International Organization 609 (2002).
14
And an increasingly important aspect of respect for the rule of law and the Commission’s interests
in strengthening its enforcement in this area – see European Commission ‘Communication from the
Commission to the European Parliament and the Council: A New EU Framework to Strengthen the
Rule of Law’ Brussels, 11.3.2014 COM(2014) 158 final.
15
See Christian B. Jensen, Implementing Europe: A Question of Oversight, 8 European Union Politics
451, 453 (2007).
16
See Tobias Lock Is Private Enforcement of EU Law Through State Liability a Myth? An Assessment
20 Years After Francovich, 49 Common Market Law Review 1675 (2012).
17
Communication from the Commission on Implementing European Community Environmental Law,
COM/2008/0773 final – http://eur-lex.europa.eu/LexUriServ.do?uri=CELEX:52008DC0773:EN:NOT
18
Case C-144/04 Werner Mangold v Rüdiger Helm [2005] E.C.R. I-10013.
19
Although see Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside – An
Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stanford Law
Review 725 (2014) for an analysis and critique of the theories underpinning the textualist and
purposivist approaches to statutory interpretation. The authors conclude that an alternative paradigm
is required, adopting a pragmatic approach to interpretation.
20
Joined Cases C-6/90 and C-9/90 Francovich and Bonifaci and others v Italy [1991] E.C.R. I-5357.

3
domestic courts, which, whilst being a damages action for losses, is frequently
referred to in the body of law known as ‘enforcement mechanisms’.21
Enforcement mechanisms has been a subject of importance since the
inception of the Community, as a lack of enforcement (and a failure to secure access
to rights) may be considered democratised theft.22 Member States that do not
adhere to EU obligations, particularly in relation to social policy and employment
rights, may gain a political, economic, and financial benefit. Losses sustained by
individuals for such transgressions may, financially at least, be relatively small
although the impact on their lives and the relationship they have with (for example)
their employer and the State is substantial. Member States that do adhere to EU
obligations will incur costs either directly or through the competitiveness of the
organisations that operate within the Member State, and a competitive disadvantage
is evidently the consequence. The history of the Court of Justice’s case law on this
subject has been to ensure compliance amongst Member States, thereby creating
fairness to all the individuals who work within the remit of that State’s authority, and
ensuring that Member States do not obtain an advantage from their breach of EU
law. The time has come for the full effects of Francovich to be realised23 and for a
substantial mechanism to be established which compels adherence to the law.

II. THE DEBILITATING EFFECT OF COSTS

A Member State’s breach of EU law does not affect an individual in isolation, but
rather there are multiple affected individuals all suffering an inability to avail
themselves of (often) protective rights which are designed with the aim of, for

21
For a discussion of the EU utilizing rights, enforceable by individuals, to establish policy without the
associated costs, see R. Daniel Kelemen, Suing for Europe: Adversarial Legalism and European
Governance, Comparative Political Studies 39, 101 (2006).
22
See David Vogel, The Hare and the Tortoise Revisited: The New Politics of Consumer and
Environmental Regulation in Europe, 33 British Journal of Political Science 557 (2003).
23
In the UK, for example, in the first 20 years of the availability of redress through State Liability, a
mere 22 cases were heard before English courts - R v Secretary of State for the Home Department ex
p. Gallagher [1996] 2 CMLR. 951; Bowden v South West Water Services Ltd [1998] 3 CMLR. 330; R v
Ministry of Agriculture, Fisheries and Food ex p. Lay and Gage [1998] COD 387; Boyd Line
Management Services Ltd v Ministry of Agriculture, Fisheries and Food (No.1) [1999] Eu. L.R. 44; R
v Department of Social Security Ex p. Scullion [1999] 3 CMLR. 798; R v Secretary of State for
Transport ex p. Factortame Ltd (No.5) [2000] 1 AC 524; Evans v Secretary of State for the
Environment, Transport and the Regions [2001] EWCA Civ 32; R v Secretary of State for Transport
ex p. Factortame Ltd (No.6) [2001] 1 WLR 942; Three Rivers DC v Bank of England (No.3) [2003] 2
AC 1; Phonographic Performance Ltd v Department of Trade and Industry [2004] EWHC 1795 (Ch);
Sayers v Cambridgeshire CC [2006] EWHC 2029 (QB); Sempra Metals Ltd (formerly
Metallgesellschaft Ltd) v Inland Revenue Commissioners [2007] UKHL 34; Byrne v Motor Insurers'
Bureau [2008] EWCA Civ 574; Moore v Secretary of State for Work and Transport [2008] EWCA Civ
750; Spencer v Secretary of State for Work and Pensions [2008] EWCA Civ 750; FJ Chalke Ltd v
Revenue and Customs Commissioners [2009] EWHC 952 (Ch); Cooper v Attorney General [2010]
EWCA Civ 464; R (on the application of MK (Iran)) v Secretary of State for the Home Department
[2010] EWCA Civ 115; Test Claimants in the FII Group Litigation v Revenue and Customs
Commissioners [2010] EWCA Civ 103; R (on the application of Negassi) v Secretary of State for the
Home Department [2011] EWHC 386 (Admin); Test Claimants in Thin Cap Group Litigation v
Revenue and Customs Commissioners [2011] EWCA Civ 127; Harmon CFEM Facades (UK) Ltd v
Corporate Officer of the House of Commons 67 Con. L.R. 1. Of these, in 12 cases was the claimant
an individual, and in total, 9 of the 22 cases were successful in obtaining a remedy. The more recent
case of Delaney v Secretary of State [2014] EWHC 1785 (QB) and the judgment regarding the
element of discretion (or lack thereof) for the State and its subsequent liability gives hope for future
cases.

4
example, the betterment of their working lives. However, the existing system of
liability redress is for each individual to claim against the State to obtain damages. 24
Issues of costs,25 procedural difficulties,26 quantum of damages, and the cost/benefit
of the resources required to obtain redress through litigation compared with the
monetary gains awarded, present problems to the current system which has resulted
in its limited effectiveness in the 24 years since the Francovich ruling.
In realising the effects of the Francovich judgment, consideration of how a system
of collective redress can help to remove a substantial barrier to the functionality of
the enforcement of EU law and also help to deter non- and incorrect transposition of
directives is paramount. The premise of this argument is from the Commission’s
recent non-binding Recommendation regarding collective redress for alleged
breaches of EU antitrust / competition law. As part of the Commission’s consultation
process prior to enactment of the Recommendation, the European Coalition for
Corporate Justice27 commented:

Compensatory collective redress should have to cover all sectors where the
mass damage due to the breaches of EU law is possible and not be limited to the
areas of consumer law or competition. This would allow for example cases of loss
of personal data or breaches of data protection, negligent financial advice to
financial service users, environmental damage or breaches of employment rights
to be tackled via collective claims.28

Parallels may be drawn between the Commission's non-binding Recommendation

regarding collective redress for instances of anti-competitive behaviour by bodies
within Member States, and an extension of the principle to State Liability. Here the
Commission is primarily granting rights to individuals to access justice where, in
many cases at least, it would be financially unviable to pursue such action through
the courts. The expense of litigation, coupled with the very low remedy awarded
under quantum, restricts the ability of individuals in such a situation to obtain
redress. Similarly, social policy directives establishing protections from discrimination

24
The reality is that most do not enforce their rights. Specifically in relation to tortious liability,
research presented by Richard E. Miller & Austin Sarat, Grievances, Claims and Disputes: Assessing
the Adversary Culture, 15 Law & Society Review 525, 544–45 (1981) demonstrated that, in the US,
merely 3.8% of those individuals with a tort grievance actually enforce their rights in court. That figure
could be even lower in the UK.
25
See, for way as an example of the Danish Consumer Ombudsman scheme – ‘Report Paves the
Way for Class Action Lawsuits on Behalf of Danish Consumers’ http://www.forbrug.dk. Also, a system
whereby claimants engaged in the same Member State, experiencing the same legal issue and, often,
experiencing the same level of financial loss would be likely to benefit from a more efficient use of
legal resources and would result in ‘judicial economy’ for the legal system in a reduction in the
numbers of individual claims necessary to achieve the same result. In the UK, costs associated with
access to courts and justice were proportioned accordingly - Court Fees: 3-5%; Bailiffs’ Fees: 3-5 %;
Lawyers’ Fees: 70-90%; Experts’ Fees: 5-10%; Witness Compensation: 2-5%; and
Translation/Interpretation Fees: 5-7% (Jean Albert “Study on the Transparency of Costs of Civil
Justice Proceedings in the European Union” (EC Commission, DG for Justice, Freedom and Security
2007), 9).
26
Hans-W, Micklitz & Astrid Stadler, The Development of Collective Legal Actions in Europe,
Especially in German Civil Procedure, 17 European Business Law Review 1481 (2006).
27
‘Towards a Coherent European Approach to Collective Redress.’ Available at
http://ec.europa.eu/dgs/health_consumer/dgs_consultations/ca/replies_collective_redress_consultatio
n_en.htm.
28
ibid. Answer to Q33 in the Commission consultation document.

5
experienced on the basis of (for example) sexual orientation,29 beliefs and non-
beliefs,30 because the individual works under a fixed term contract31 or is a part-time
worker,32 have been incorporated into domestic law on the basis of a parent EU
Directive. Further, fundamental protections on the requirements to preserve the
rights and conditions of work attributed to employees following the transfer of a
business from one owner to the next,33 and requirements to consult with employees
and/or their representatives in the event of redundancies and/or transfers of an
undertaking34 are also subject to a parent EU law. In the instances identified above,
the UK has been found (or an argument has been presented alleging it to be) in
breach of its obligations, with the result that individuals have been denied protection
to which they were entitled. The level of compensation available often makes it
uneconomic to bring an individual claim, but the worker wishes to assert his or her
rights or gain protection which is currently unavailable through domestic law. Direct
effect is unavailable in cases where the individual is employed in the private sector
(due to the horizontal / vertical distinction and application of directives), and indirect
effect is a possible, albeit opaque remedy, where there exists domestic legislation
capable of interpretation (although this is by no means a given state of affairs and
frequently falls to the reference procedure35 and consequent delay in accessing a
remedy). State Liability is therefore not merely (or indeed nor should it be seen
principally as) a mechanism to provide compensation for breach. Rather, we argue,
its significance is in enabling an individual to force a Member State to take remedial
action36 and comply with EU law in order, albeit indirectly, to access a right which
has been denied him or her and to act as the watchdog the Court of Justice had
envisaged when developing the suite of enforcement mechanisms.

III. STATE LIABILITY AND THE AWARD OF DAMAGES

29
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal
treatment in employment and occupation, OJ L 303, Art 1, and transposed in the UK through the
Disability Discrimination Act 1995 and the Equality Act 2010.
30
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal
treatment in employment and occupation, OJ L 303, Art 1.
31
Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term
work concluded by ETUC, UNICE and CEEP OJ L 175/43, and transposed in the UK through The
Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
32
Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-
time work concluded by UNICE, CEEP and the ETUC OJ L 14 and transposed in the UK through The
Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
33
Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member
States relating to the safeguarding of employees' rights in the event of transfers of undertakings,
businesses or parts of businesses, OJ L 061, and Council Directive 2001/23/EC of 12 March 2001 on
the approximation of the laws of the Member States relating to the safeguarding of employees' rights
in the event of transfers of undertakings, businesses or parts of undertakings or businesses, OJ L 82.
34
Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States
relating to collective redundancies, and transposed in the UK through The Trade Union and Labour
Relations (Consolidation) Act 1992, amended by the Collective Redundancies and Transfer of
Undertakings (Protection of Employment) (Amendment) Regulations 1995 and The Transfer of
Undertakings (Protection of Employment) Regulations 1981, amended by the Collective
Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations
1995 and 1999.
35
Article 267 TFEU.
36
Although others have already discussed the concept of extending Francovich-type damages
actions beyond the mere award of monetary compensation – see in particular Michael Dougan, The
Francovich Right to Reparation: Reshaping the Contours of Community Remedial Competence, 6(1)
European Public Law 103 (2000).

6
A little over twenty years ago, the Court of Justice famously held:37

… the effectiveness of [EU] rules would be impaired and the protection of the
rights which they grant would be weakened if individuals were unable to obtain
compensation when their rights are infringed by a breach of law for which a
Member State can be held responsible.38

The ruling provided for the effectiveness of EU law to be reaffirmed,39 and a new
(hybrid) form of liability in public law40 (despite the fact that many disputes arising
from the breach of EU law affect private parties), to be established and made
enforceable before national courts. English law did not provide a neat form41 of
tortious liability into which the principles established through State Liability would fit.
It did not align neatly with the rules to establish misfeasance in public office (as the
test of bad faith and deliberate42 abuse of power is more onerous than the tests for
State Liability), nor negligence, as liability here is usually linked with fault43 leading to
some form of injury or harm connected with the award of damages. Liability for pure
economic loss is particularly difficult to establish and from which to gain redress, and
whilst State Liability provides damages for economic losses incurred by the claimant,
it does not give the claimant direct access to the EU rights conferred through the
law,44 nor does it require the claimant to link the damages claimed with actual proof
of harm. State Liability in the UK adopts a bastardised45 form of breach of statutory
duty,46 albeit with fundamental distinctions. Whereas the basis of a State Liability
action is to recover damages from the State (by its nature a public body and
therefore involving a public tort),47 the tort of breach of statutory duty avoids the
imposition of liability and “distinguishes clearly between private and public law

37
The Court of Justice, had, in Case 6/60 Humblet v Belgium [1960] E.C.R. 559, 569 established the
duty on Member States to make good damage incurred due to national laws conflicting with EU law.
38
Fn 20 at [33].
39
Despite arguments as to its success (see e.g. Roberto Caranta, Judicial Protection Against Member
States: A New Jus Commune Takes Shape, 32 Common Market Law Review 703, 725 (1995);
Fernand Schockweiler, La responsabilité de l’autorité nationale en cas de violation du droit
communautaire, 28 Revue trimestrielle de droit européen 27, 42 (1992), it is arguable that such
effectiveness has never been realised.
40
Although a second set of legal proceedings outside of the normal ‘private’ sphere may ‘hardly be
compatible with the requirement of an effective legal remedy’ Case C-316/93 Vaneetveld v SA Le
Foyer [1994] E.C.R. I-763, at [775], per Jacobs AG.
41
In Application des Gaz SA v Falks Veritas Ltd [1974] 1 Ch 381, Lord Denning had suggested (obiter
[395-6]) the creation of a new form of tort law to provide an effective remedy for such breaches.
42
Three Rivers District Council v Bank of England (No.3) [2000] UKHL 33; [2003] 2 AC 1.
43
The requirement of a finding of fault was rejected by the Court of Justice in Brasserie du Pêcheur v
Germany [1996] at [56].
44
It does grant such access indirectly as the Member State, having been found in breach of its EU
law obligations and ordered to compensate the affected claimant, will change / amend / ‘clarify’ the
law to avoid any further claims (and exposure to damages actions). Hence, following the finding of
State Liability, the State invariably grants access to individuals through remedial action.
45
See comments by Judge Toulmin QC, R v The Secretary of State for Transport ex parte
Factortame Ltd. (No.7) [2000] EWHC (Tech) 179 at [176].
46
Breach of statutory duty was used by Lord Diplock in Garden Cottage Foods Ltd v Milk Marketing
Board [1984] AC 130 [141] when identifying potential liability for breach of Art. 86 EEC Treaty (now
Art. 102 TFEU) as applicable to individuals who suffered loss.
47
X v Bedfordshire CC [1995] 2 AC 633.

7
actions such as judicial review.”48 Breach of statutory duty includes a remoteness
element whereby the statute must include an objective requirement that the breach
and damage suffered is actionable in private law, and thereby the statute intended
for the conferment of a remedy for the claimant. Statutes often do not expressly
identify such an intention and the courts are left in the position of ‘hunting’ for
intention, incorporating presumptions and weightings, through textual and purposive
examination. This led to the creation49 of a State Liability remedy model based on
non-contractual / tortious liability.50 For English law, a new hybrid fusion of English
and EU law was created and to be applied by the domestic courts.
Despite Francovich and the resultant necessity for the domestic judicial
activism and creation leading to a suitable tortious liability remedy, Member States
continued to be required to fulfil their obligations for the correct and timely
implementation of directives. Failure in this regard may lead to the award of
damages as the Member State was obliged to make good any loss / damage51
sustained by the claimant, and justified on the principles of equivalence52 and
effectiveness.53
Victims of infringement / transgression of EU law thus have routes by which to
claim damages where they have suffered loss or harm. This was established in
relation to competition law generally in Courage and Crehan54 and Manfredi,55
having already been established in Francovich in relation to State Liability. Beyond
the general principles of law which allow redress as identified in these cases,
however, various practical limitations apply to affect the reality of the ability for the
individual victims to successfully recover damages. In the UK, for example, the
prospect of an individual personally funding a public law action or, without retaining
legal representation, presenting such a case is a practical impossibility. Trades
unions and some public bodies do fund State Liability claims, but these are relatively
rare and, in 2012, in the UK, only 2.6 million workers were union members engaged
in the private sector. Such private sector workers lack the protection of availing
themselves of a (vertical) direct effect claim against their employer, they may face
the problems of enforcing the law through indirect effect, and whilst these workers
may have the financial and legal support of their union to pursue a remedy of State
Liability, clearly the overwhelming majority of workers in both public and private
48
Paula Giliker, English Tort Law and the Challenge of Francovich Liability: 20 Years On, 128 The
Law Quarterly Review 541, 546 (2012).
49
A national system establishing and facilitating the award of a remedy was required, however, given
the unique nature of the effects of Francovich, and its adoption by Member States to be lukewarm at
best, by 1997, no Member State had introduced any legislative measures to give effect to this
development in EU law (SOU ‘Det Allmannas Skadestandsansvar vid Overtradelse av EG-regler’
1997, 194).
50
Although not every breach / infringement of EU law by a Member State constitutes a tort - Borgouin
S. A. and Others v Ministry of Agriculture, Fisheries and Food [1986] QB 716.
51
Francovich Fn 20 at [36].
52
In relation to anti-trust / competition law, the principle requires Member States to sanction breaches
of the EU law in the same way, and thereby equivalent to, the application of domestic law.
53
A national court must not make it impossible of excessively difficult for a party to exercise his or her
EU rights – see Francovich [1991] Fn 2 at [33] and [39]. Further, In Autologic Holdings Plc v Inland
Revenue Commissioners [2004] EWCA Civ 690 [2004] 2 All ER 957 Gibson LJ stated: ‘The
importance of the principle of effectiveness in Community law cannot be overstated. Any provision of
national law which makes the exercise of a right conferred by Community law practically impossible or
extremely difficult cannot prevail.’ 25.
54
Case 453-99 Courage Ltd. v Crehan [2001] E.C.R. I-6297.
55
Joined Cases C-295-298/04 Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA [2006] E.C.R.
I-6619.

8
sectors are not trade union members. Further, 27% of permanent employees were
trade union members compared with 15% of temporary employees.56 The statistics
demonstrate greater vulnerability for workers who are not in trades unions and who
are less likely to possess the funds to bring their own, individual action for State
Liability.

IV. CLASS ACTIONS / COLLECTIVE REDRESS

There exists a catalogue of complexity and barriers which an individual must
overcome to avail him/herself of, first, compensation through State Liability and
secondly, a means of enforcing EU rights. Beyond the domestic procedural rules
regarding tortious liability of a public body, one of the most debilitating factors of any
public law action is the financial cost involved. This has been recognised at an EU
level, and the response of the Commission has seen it institute mechanisms, first by
encouraging Member States through its non-binding Recommendation to establish a
system of collective redress, and secondly (albeit a separate measure) by
compelling them through a (proposed) directive relating to compensation, connected
to breaches of EU anti-competition laws.57 This has initially been established on the
basis of, and restricted to, anti-trust / competition law, but the principle of enabling
collective redress to access/enforce EU rights is a compelling move.58 The EU
evidently recognised a major barrier to justiciable problems and action needed to be
taken at an EU level to ensure individuals can access justice, along with the broader
positive effects that derive therefrom.
It is important to recognise from the outset that incentivising private
individuals59 to enforce their rights and to act as a watchdog in assisting the
Commission in its role as guardian of the treaties has not simply been the exclusive
want or remit of the EU. Increasingly, Member States60 in the EU have been
establishing systems whereby individuals are in a position, through private claims, to
seek damages on the basis of corporate wrongdoing and malfeasance61 (although
this does not mean that such systems are particularly widespread or have universal
agreement).62 The positive positioning of some Member States has been mirrored by

56
Department of Business Innovation & Skills (2012) ‘Trade Union Membership 2012 Statistical
Bulletin May 2013, p. 6.
57
Proposal for a Directive of the European Parliament and of the Council on certain rules governing
actions for damages under national law for infringements of the competition law provisions of the
Member States and of the European Union. COM(2013) 404, 11.6.2013.
58
For a comparative study of the effectiveness of collective redress in competition law see Clifford A.
Jones, Private Enforcement of Antitrust Law in the EU, UK and USA (Oxford University Press 1999).
59
See Judith Resnik, Money Matters: Judicial Market Interventions Creating Subsidies and Awarding
Fees and Costs in Individual and Aggregate Litigation, 148 University of Pennsylvania Law Review
2119, 2144-6 (2000) where ‘By the 1960s, lawyers, judges, academics and legislators began to
conceive of civil justice as having characteristics readily associated with criminal justice and
administrative systems:.. Creating incentives for entrepreneurial private actors to use the civil justice
system to partake in the work of public norm enforcement offered an alternative to centralizing power
exclusively within the government.’
60
France, for example, has recently established a system of collective redress into its Consumer
Code – albeit restricted to State authorised consumer associations.
61
Hans-W. Micklitz & Astrid Stadler, The Development of Collective Legal Actions in Europe,
Especially in German Civil Procedure, 17 European Business Law Review 1473 (2006).
62
For example, the German (conservative / social democrat) coalition government elected in 2013
have opposite views on the issue of collective redress in competition laws, with the negative position
being such a development would be unnecessary, be subject to abuse and require substantial

9
the EU, albeit the extent of, and the best mechanism by which to facilitate, such
access has been in consideration for some time. Approximately 19 Member States
including the UK have existing, or are proposing, collective redress mechanisms,
using opt-in and opt-out models, which in many ways follow the collective redress
procedures in the US. The existing use of collective redress has largely been limited
to consumer rights, securities litigation and anti-competition law violations. This
sectoral approach is instructive in that any further expansion of collective redress
would need to adopt a similar pattern. Employment protection / social policy appears
to be an area of EU competence that would benefit from the application of a system
of collective redress.

A. COLLECTIVE REDRESS - TO OPT-IN OR OPT-OUT?

Under a system of collective redress, two mechanisms are available as viable

options. The first is a system whereby the affected individual has to make an
informed decision to pursue an action against the defendant and be part of the
‘class’ of litigants in a particular case. This is the ‘opt-in’ procedure which ensures
that a definable, genuine group of affected individuals who have been impacted by
the breach and have sustained some form of monetary loss can be identified, and
associated remedies through compensation can be distributed. Individuals declare
that they intend to participate in the legal action which assists the court in
establishing with certainty a group of claimants. As this group exists in advance,
distribution of any award is easier, as is the calculation of risk by the defendant of the
potential damages,63 and it aligns itself with the legal systems of many Member
States. The opt-in system is often championed as enabling a legal freedom not
offered through opt-out. With opt-in, each individual has the option to form part of the
collective group seeking redress, whilst enabling those who wish to pursue an
individual claim to proceed without any restraints. However, as demonstrated in case
studies presented in 2007, the BEUC (the European Consumers’ Bureau) found:

the freedom not to have one’s claim is often overstated in opt-in regimes.
Commencing proceedings without the explicit consent of those affected is not
necessarily a limitation on the claimant's freedom of choice, since people are
able to withdraw from the group and pursue individual actions or decline to
litigate altogether.64

Further, the opt-in system has been criticised as not removing the problem of
potential-claimant inertia65 and where lawyers are not motivated (presumably

amendment to the Code of Civil Procedure; and the UK coalition government has stated its misgivings
regarding the extent of the reach to establishing a system of collective redress.
63
Many defendants value collective redress due to the finality of the action with no fear of subsequent
claims from affected individuals or a requirement to maintain a damages fund beyond the life of the
collective claim and appeals – see Francis E. McGovern, Distribution of Funds in Class Actions––
Claims Administration, 35 Journal of Corporation Law 123 (2009).
64
BEUC (2007) Private Group Actions - Taking Europe Forward. BEUC Reflections on a Future
European Collective Redress Scheme for Individual Damage Claims p. 15. Available at
http://ec.europa.eu/dgs/health_consumer/dgs_consultations/ca/replies_collective_redress_consultatio
n_en.htm.
65
See Albert A. Foer & Jonathan W. Cuneo, Toward an Effective System of Private Enforcement in
Albert A. Foer & Jonathan W. Cuneo (eds) The International Handbook on Private Enforcement of
Competition Law 605 (Edward Elgar Publishing 2010).

10
financially rather than through other altruistic and value-based factors), litigation will
simply be an ineffective means of accessing rights. 66 As way of an example, the
Enterprise Act 2002 s.19 inserted into the Competition Act 1998 a new section
(s.47B) which provided for representative actions to be brought on behalf of
consumers. Under this legislation, the Consumer Association, on behalf of a few
hundred named individuals, brought proceedings against the retailer JJB Sports in a
follow-on67 action by the Office for Fair Trading regarding price-fixing on the supply
of replica football shirts. The defendant settled, but the proportion of consumers who
joined the case compared to the number of consumers affected was very small, and
the value of the claim, compared to the costs of pursuing it, led to the Consumer
Association remarking that it would not bring a similar opt-in action again.68
The alternative mechanism available is where the affected individuals will
automatically form part of the collective action unless they declare and thereby affirm
that they wish to be excluded. This is the ‘opt-out’ procedure. Each mechanism has
its benefits and drawbacks, and in the consultation process undertaken by the
Commission, and the feedback provided, the majority of respondents identified that
the opt-in mechanism was their preferred choice. The opt-out mechanism is widely
considered to be the more aggressive form of collective redress and may not be
particularly apt for situations of consumer protection / antitrust violations. Hence, the
overwhelming response in this respect by the respondents to the Commission’s
consultation exercise, and the resultant Recommendation, selected the ‘opt-in’
model. Of course, State Liability is a different proposition and given that individuals
denied access to rights provided by the EU affects a clearly identifiable class (who
by their nature share a commonality) – such as workers when the situation involves
certain social policy laws – and the damages sustained will in many situations be
similar / identical to all the members of that class, the opt-out model should be
adopted (similar to that used in Denmark). It is ultimately more suitable for low value
claims and where individuals are unlikely to be aware that their rights have been
infringed or breached. This mechanism provides the most inclusive and appropriate
approach to enable access to justice and promoting accountability, transparency and
to incentivize compliance with EU obligations. Many citizens in the EU affected by
the breach of the Member State are poorly placed to opt-in to a class action claim,
they may have limited access to information, be socially isolated, or suffer health
problems that can be exacerbated by the stress of individually pursuing a claim
through the courts. Collective redress through a system of opt-out can reduce these
problems.

B. COLLECTIVE REDRESS – WHY NOT?

Criticisms of a system of collective redress, despite the existence of advantages to

both individuals and the Commission in ensuring access to EU rights and holding to

66
ibid at 607-8.
67
A follow-on action occurs where an infringement of competition law has been found by a
competition authority (for example the European Commission and/or an industry-sector regulator).
The claimant must, however, demonstrate how the claim relates to his/her own case. For further
developments on this, and the boundaries for such claims, see Case C‑ 557/12 Kone AG and others
th
v ÖBB-Infrastruktur AG 5 June 2014.
68
As reported in The Law Society response to the EU Commission consultation document Towards a
Coherent European Approach to Collective Redress (2011), 9-10. Available at
http://ec.europa.eu/dgs/health_consumer/dgs_consultations/ca/replies_collective_redress_consultatio
n_en.htm.

11
account those responsible for breaches, are numerous. The main criticisms to its
adoption in the EU, and particularly articulated in relation to anti-competition laws –
but in some instances could be applied to State Liability generally, include the
following.

(I) THE US MODEL WILL BE MIRRORED IN THE EU

The US is frequently presented as embodying the worst effects of a litigation

culture69 where lawyers provoke abusive claims70 (unlikely to be successful at trial)
and are the only ‘beneficiaries’ of class actions.71 Lazy generalisations critiquing
alternative methods of enforcement of rights are quite unhelpful when formulating a
new paradigm of access to justice and it would be unwise to consider that claims that
are unsuccessful or their outcome is uncertain are by their nature abusive. It is even
more so when individuals affected by the current system are those often least able to
protect themselves or to fund representation. It is without doubt that, in using the
model of the US as a comparator, some cases will have been heard in the US courts
which are without merit, which are abusive, and will be brought with the intent of a
settlement to be reached to avoid the litigation costs/judgment and costs of
discovery72 and award of damages or due to the exposure to risk through multiple
claimants / treble damages awards and associated legal fees.73
However, in reality there are few if any meaningful, empirical bases on which
these arguments have been sustained. It is possible that meritless claims might be
initiated by the inexperienced (lawyer or claimants) or those who wish for a public
‘day in court’. But this, along with abusive claims, can be effectively controlled
through judicial examination of the case and subsequent management. Damages
awards, in cases involving State Liability in the UK, based as they are on the hybrid
tort of breach of statutory duty, are hence not subject to the award of punitive
damages. The defendant in the case of State Liability actions will, naturally, be the
State and therefore will not suffer the damage of adverse competition or cases being
brought by a competitor seeking advantage through pursuing ‘nuisance’ claims.
Fears that lawyers will merely take cases, which for individuals would be

69
See Deborah R. Hensler, Nicholas M. Pace, Bonnie Dombey-Moore, Elizabeth Giddens, Jennifer
Gross & Erik Moller, Class Action Dilemmas: Pursuing Public Goals for Private Gains (RAND Institute
for Civil Justice 2000) at 15-18, available at
http://www.rand.org/pubs/monograph_reports/MR969/index.html.
70
For example, in the US, Rule 11 of the Federal Rules of Civil Procedure was established to ensure
that claims presented in federal courts have merit (are not frivolous) and are not brought for an
improper purpose - although see Julia K. Cowles, Rule 11 of the Federal Rules of Civil Procedure and
the Duty to Withdraw a Baseless Pleading, 56 Fordham Law Review 697, 700 (1988) for a
demonstration of the general lack of effectiveness of the Rule in deterring such claims and how US
class action claims fails to lead to benefits to the claimants (consumers and citizens).
71
Whilst it is frequently noted that private individuals to class action claims rarely obtain a meaningful
remedy whilst lawyers representing the group obtain very large payments for their services, see Brian
T. Fitzpatrick, An Empirical Study of Class Action Settlements and their Fee Awards, 7 Journal of
Empirical Legal Studies 811 (2010) and Theodore Eisenberg & Geoffrey P. Miller, Attorney Fees and
Expenses in Class Action Settlements: 1993-2008, 7 Journal of Empirical Legal Studies 248, 262, 265
(2010) which demonstrated that lawyers’ fees were 12% for cases where recovery of damages
exceeded $175.5 million (and 23% for claims involving significant smaller awards).
72
Referred to ‘nuisance settlements theory’, see Brief of the American Bar Association as Amicus
Curiae in Support of Neither Petitioners Nor Respondents at 10-11, Bell Atl. Corp. v Twombly, 550 US
544 (2007) (No. 05-1126).
73
Referred to as ‘hydraulic pressure theory’, see Charles B. Casper, The Class Action Fairness Act’s
Impact on Settlements, 20 Antitrust 26 (2005).

12
uneconomic to pursue, and will lead to an opening of the floodgates, have not
materialised in jurisdictions where collective redress is available. Further, to prevent
some form of unjust enrichment or unethical practice being pursued, the UK could
adopt a ‘cy pres’ system where residual money from the award of damages can be
used in specified mechanisms to assist in achieving the aims of the claim (i.e. the
basis of the action), as opposed to being returned to the defendant or being retained
by the lawyers.
The legal systems of the US compared with those within the EU are different
and the procedural rules in which they operate are sufficiently distinct to prevent any
potential for reflected negative consequences. Juries do not assess the quantum of
damages, members of the judiciary are not elected, contingency fee arrangements
limit the fees recoverable by lawyers and damages are based on losses incurred in
prescribed areas. As such, concerns that the Member States in the EU will find their
legal systems inundated with spurious and speculative claims appear unfounded.
The Commission recognised the potential problem of directly following the US
model (or attracting unfavourable comparisons) and as such suggested use of an
opt-in model in its Recommendation which necessitates a deliberate action to
become a party to the class of litigants in the case. The UK’s Consumer Rights Act
2015,74 however, despite the arguments presented above, enables collective redress
in anti-competitive / anti-trust cases75 following a more ‘radical’ opt-out model.76 Not
only does the UK appear to be leading the way in this regard, fears of developing a
US-style litigation culture seem to be ill-founded.

(II) THE AGGREGATION AND AMPLIFICATION EFFECT

Opponents to the use of collective redress often point to the existence of the
aggregation effect77 and the resultant possibility of abuse. Collective redress enables
individuals who would otherwise be unable to seek access to their rights due to the
limitations of high costs and low financial ‘rewards’ to challenge wrongdoing.
However, it is argued, this aggregation (including possibly tens / hundreds of
thousands of weak claims) may in effect change substantive rights due to
defendants settling claims where the mere possibility of an adverse ruling could
result in potentially significant compensation payments (regardless of the merits of
the claim); and, it is argued from a consumer / antitrust perspective, that such
aggregation may result in a disincentive for firms to operate businesses in a Member
State where they could be exposed to collective redress claims and be subject to
expensive litigation. This would be to the detriment of the citizens of the Member
State who benefit from the legitimate activities of businesses but which may choose
not to operate in the Member State due to this fear.
However, collective redress, despite the aggregation effect, does have the
ability to persuade the defendant to seek the use of alternative forms of dispute
resolution and/or the settlement of the claims prior to court action on the basis of the
improved bargaining position achieved by the claimants.

74
Which gives effect to the provisions of the Recommendation regarding collective redress in relation
to breach of anti-trust / competition laws.
75
See Schedule 8, Part 1.
76
A limited right for representative groups / trade associations to take action on behalf of consumers,
on an opt-out basis, through an amended Competition Act 1998 (s.47B).
77
See Richard A. Epstein, Class Actions: Aggregation, Amplification and Distortion, University of
Chicago Legal Forum, 475 (2003).

13
 Through the aggregation of claimants’ loss, individuals may have suffered
greater or lesser loss but are still part of the same collective action. This is true in
relation to anti-competitive laws, but the disparity in redress through damages
becomes more apparent when considered in the wider context of EU law generally,
and particularly in social policy laws where, for example, protective awards are made
in relation to the lack of effective consultation prior to redundancies,78 potential
breaches of an individual’s right to enforce a maximum working week, 79 and, of
much greater significance in this regard, an individual who may have suffered some
form of discrimination at work.80 Where these breaches are effective due to inaction
or incorrect transposition of EU law by a Member State, aggregating losses
sustained through adherence to strict quantification criteria could prove to be
problematic, and further, where there are potentially many thousands of individuals
affected, the prospective claim for damages against the State could be so
prohibitively expensive, that a court would not feel capable of imposing such a
judgment. Indeed, potential losses sustained through the breach of EU law and
where the Member State is considered liable under torts law, could dwarf any fine or
imposition of sanctions available to the EU. A safeguard, which would by necessity
have to be incorporated into any such enforcement mechanism, would be the
discretion of the courts to reject legal actions or to limit the maximum compensation
awarded. That of course leads to the unenviable situation whereby the greater the
damage sustained by individuals and the more flagrant abuse by a recalcitrant
Member State, the less likely that full damages would be available.
Under the existing system of individual actions, such claims will, by necessity,
be heard in different courts with the possible and likely result that different
conclusions (judgments) will be drawn between the various court cases. This leads
to a reduction in any (rolled-up) awards being made against the defendant. With
collective redress, the individual claims are collated into a single action with the
‘gamble’ for the defendant that an adverse ruling could have financially devastating
results (the amplification effect). The UK Competition Law Association cite the US
case Rhone-Poulenc where Judge Posner remarked on the situation where perhaps
as few as 8% of the claimants in this class action would likely satisfy the tests to
establish the liability of the defendant and there was ‘great likelihood that the
plaintiffs’ claims… lack(ed) legal merit.’81 However, the US Supreme Court
acknowledged the significance of class actions as a mechanism to facilitate
claimants to pool resources, they are ‘peculiarly appropriate’ where the ‘issues
involved are common to the class as a whole’82 and they enable an ‘opportunity to
save the enormous transaction costs of piecemeal litigation.’83

(III) DETERRENCE DOES NOT WORK

78
USDAW v Ethel Austin Ltd (In Administration) [2013] UKEAT/0547/12/KN, and USDAW and Wilson v
Unite the Union, WW Realisation 1 Ltd and Secretary of State for Business, Innovation & Skills [2013]
UKEAT/0548/12/KN.
79
Case C-484/04 Commission v United Kingdom [2006] IRLR 888.
80
Compare the approaches taken in Rowstock Ltd v Jessemey [2013] ICR 807 and Onu v Akwiwu &
Anor [2013] ICR 1039 and the necessity of judicial acrobatics to comply with EU law.
81
UK Competition Law Association (2011) Response to European Commission’s Consultation on
Collective Redress www.competitionlawassociation.com (ukmatters: 18238974.3) April, 2.3(b).
82
Califano v Yamasaki, 442 US 682, 701 (1979).
83
Ortiz v Fibreboard Corp., 527 US 815, 860 (1999).

14
One of the main arguments for collective redress being applied to cases of State
Liability is the ability of individuals to access their rights, and to deter Member States
from breaching their EU obligations. A cautionary note regarding the efficacy of the
deterrence effect of collective redress can be seen when considered from the
perspective of the developments in consumer protection and anti-trust actions.
Hodges remarks that:

most of the UK cases have involved industries that are already heavily
regulated.84 There is no evidence in those cases that regulation was
inappropriate or ineffective or that the corporations would have acted any
differently at the relevant times. If that is so, the argument for indirect
regulation by threat of litigation, as a complementary mechanism to direct
regulation… looks weak, unnecessarily duplicative, and wasteful of resources.
If litigation does produce change, it seems to be a very costly way of doing
so.85

This argument has been challenged in the US courts,86 but it is also true that
deterrence may ‘remain far from optimal due to three remaining problems: the
rational apathy on the side of individual victims (in particular, those who suffered trifle
damage), problems to finance the claim and the risk of free-riding, which may equally
reduce the number of claims brought below the efficient level.’87 Further, whilst
industries may be regulated, transposition of directives remains the duty of the State
and inaction or misapplication in this area negatively impacts on an individual who is
dependent on an accessible legal system through which to seek redress. The distinct
nature of State Liability in this respect negates the arguments relating to the
ineffectiveness of deterrence in collective actions.

C. COLLECTIVE REDRESS AND DETERRENCE

A significant argument for the adoption of a form of collective redress against

Member States, and not simply limited to cases of anti-trust / competition laws, is
that Member States are charged with the responsibility of transposing correctly and
on time EU laws in the form of directives. There are mechanisms in place to protect
a Member State that innocently fails in the correct transposition, and the EU provides
Member States with sufficient time in order to comply with the judicious transposition
of the law. Given the safeguards, Member States that fail in their duty should be
subject to sanctions and these have traditionally been through complaints
84
This is true, but it is also quite evident that public methods of fining companies for breaches of the
law have, often, been largely ineffective in controlling bad behavior, have not led to a deterrence to
many large companies, and there is certainly not an over-deterrence that some commentators have
suggested could be the ultimate result of regulation through collective redress. See Centre for
European Policy Studies et al., Making Antitrust Damages Actions More Effective in the EU: Welfare
Impact and Potential Scenarios, at 28, Contract DG Comp/2006/A3/012 final (Dec. 21, 2007).
85
Christopher Hodges, Multi-Party Actions: A European Approach, Duke Journal of Comparative and
International Law 321, 341 (2001).
86
To counteract the potential problems of the deterrence effect of collective redress, the US Supreme
Court identified that ‘the purpose of giving private parties treble-damage and injunctive remedies was
not merely to provide private relief, but was to serve as well the high purpose of enforcing the antitrust
laws’ Zenith Radio Corp. v Hazeltine Research, Inc. 395 US 100, 130-31 (1969).
87
Centre for European Policy Studies et al., Making Antitrust Damages Actions More Effective in the
EU: Welfare Impact and Potential Scenarios, at 28, Contract DG Comp/2006/A3/012 final (Dec. 21,
2007), 301.

15
procedures initiated by or through the Commission. Member States will be aware
that sanctions for breach of EU law have traditionally been limited, the Commission
lacks in many cases the ability and resources to effectively monitor 28 Member
States and the plethora of laws and legal areas in which the EU has competence,
and enforcement by individuals through State Liability has been established since
1991, but relatively few cases have been brought before the courts and even fewer
have been successful.88 Indeed it is well remembered that Mr Francovich failed in his
own seminal case of establishing State Liability.89 Given these few examples
provided to illustrate the limitations of the effectiveness of State Liability as a means
of ensuring compliance with EU law, is it any wonder that Member States may take a
rational view that where compliance with EU law may be ideologically, politically or
financially repugnant, the sanctions for breach (if and when such a breach is
discovered and actioned) would not dissuade them from such activity? Collective
redress enables a mechanism of cost-internalisation for the wrong-doer to exist
which is necessary as currently, there is little in the way of practical deterrence90 that
would compel a Member State to comply with its EU obligations against its will or
judgement. This follows the optimal deterrence model established by Gary Becker
who identified the cost that deterrence requires from both public and private
resources, but such costs have to be addressed in relation to the seriousness of the
breach and its effects on society.91 This is by the very nature of the model, the
optimal aspect. 100% compliance with the law by a Member State is unlikely, if at all
possible (or indeed desirable - it may prove to be inefficient to devote the necessary
resources to provide compliance at this level). What is required is enforcement that
provides an equilibrium between the costs and benefits to the individuals, society,
the Member States and the EU as a collective body. The consensus92 appears to be,
however, that whilst deterrence is an important aspect of collective redress,93 this
should not extend to the award of punitive damages.94 It has been remarked that

88
See fn. 23.
89
Here, Francovich used a domestic industrial relations, rather than a more appropriate civil claims,
procedure – although the Italian legal system appeared not to know which was the designated
procedure to use in such a case.
90
Deterrence can be exhibited in many ways, including negative publicity and the effects on
reputation, whilst also encompassing financial penalties which may have a broader effect on private
organisations involved in wrongdoing. As a way of an example of the effectiveness of this second
example of the deterrent effect of collective interests, Lande and Davis, citing results of an empirical
research project involving 40 private anti-trust class-action claims in the US, found that the amounts
recovered in damages by private individuals exceeded the aggregate amount of fines imposed by
public bodies in the same period of time. Robert H. Lande & Joshua P. Davis, Benefits from Private
Antitrust Enforcement: An Analysis of Forty Cases, 42 University of San Francisco Law Review 879,
906 (2008).
91
See Catherine M. Sharkey, Punitive Damages as Societal Damages, 113 Yale Law Journal 347
(2003).
92
However – see Francis E. McGovern, Punitive Damages and Class Actions, 70 Louisiana Law
Review 435, 462 (2010) for an opposite view ‘Whether called “economic,” “extra compensatory,”
“exemplary,” or “punitive,” these global damages would result in tortious defendants being held
responsible for all the harm they cause rather than only the subset of harm calculated from the
damages won by opportunistic plaintiffs.’
93
It is seen as a mechanism not so concerned with the compensation of claimants’ losses but
principally aimed at retribution and deterring wrongful / harmful conduct – Exxon Shipping Co. v
Baker, 128 Ct. 2605, 2621 (2008).
94
Punitive damages should only be awarded in cases where the defendant’s actions have been so
reprehensible as to warrant ‘advanced’ sanction and punishment - State Farm Mut. Auto Ins. Co. v
Campbell, 538 U.S. 408, 427 (2003).

16
punitive damages is analogous with the fines imposed following conviction of a
criminal offence.95
It is also feasible that without appropriate redress and sanctioning of the
wrong-doer, the wrong-doing activities are continued and a state of underdeterrence
is established. Examples of continued incorrect transposition of directives by the UK
are numerous and the inability of redress through State Liability has perpetuated this
state of affairs. McGovern96 provides an overview of this problem and demonstrates
the various difficulties that belie the availability of State Liability in its use and effect:

A problem of underdeterrence can arise in the context of mass tortious activity…

From the perspective of society as a whole, if a defendant faces litigation from
only ten to twenty percent of the plaintiffs who are tortiously harmed—a normal
range of lawsuit filings—then that defendant will underinvest… because it is not
fully benefitting from the avoidance of liability resulting from an optimal
investment. If only twenty percent of injured plaintiffs sue, then the defendants
will be responsible for only twenty percent of the damages and will, therefore,
invest less… to correspond with the lower benefit of the avoided [incident].97

There have been relatively few cases of State Liability actions in the UK since 1991,
and even where cases have been successfully argued, awards of damages are
applied to the individual claimant. If one takes social policy law as an example, EU
social policy directives often affect many millions of workers in the UK, the UK
government may not be particularly concerned over potential legal action for its
breach of the law under the current structure of procedural limitations, court fees and
requirement that each claimant brings his or her claim individually. Collective
redress, particularly one adopting an opt-out model, may redress this imbalance by
facilitating cases more readily through the courts and any subsequent award of
damages against the defaulting State could be multiplied many thousands of times to
the class of claimants to the action. Collective redress could prove to be a
substantial weapon in defending individual workers’ rights.

V. GIVING EFFECT TO COLLECTIVE REDRESS IN STATE LIABILITY

To begin, a significant issue to overcome in adopting a system of collective redress
in State Liability is of ensuring adherence to the principles of primacy and national
procedural autonomy. EU law is supreme over inconsistent domestic law (EU law
has primacy) although the application of EU law has been decentralised to the
Member States. Individuals enjoy the right to claim compensation for breaches of EU
law but the details of facilitating such claims are subject to national procedural law.
The concern occurs where there is friction between the requirement to adhere to EU
law and any existing national procedure which may prevent its effective application.
In an attempt to avoid obvious tensions that may exist, the Court of Justice has
conditioned the use of national procedural rules to comply with EU law on the basis
of the principles of equivalence and effectiveness. Equivalence requires that national
procedural rules governing a dispute with an EU law dimension may not be less
favourable than those governing domestic disputes. As effectiveness necessitates

95
Browning- Ferris Indus. of Vt., Inc. v Kelco Disposal, 492 U.S. 257, 275 (1989).
96
Fn 92.
97
ibid at 452-453.

17
the right to effective judicial protection,98 individuals must have access to the
application of EU law, and appropriate systems of judicial review and supervision.
The principle of effectiveness has led to issues relating to access to courts and
judicial proceedings,99 legal aid,100 national rules on standing,101 and the use of
mandatory out-of-court dispute resolution procedures102 (to name but a few). It is
clear that effectiveness enjoys a broad approach in interpretation by the Court of
Justice, and this may extend to effective access where individual litigation may prove
practically inaccessible.
Therefore, it is reasonable to conclude that the current system of access to
EU law and to domestic remedies exists. Primacy of EU law in this regard is not in
question, it is the application of national rules, along with national procedural
autonomy, that is being examined. There is no denying that an individual with
sufficient resources, be that personal or through association with a supporting body,
has the ability to seek damages against a Member State for breach of EU law. What
has been presented so far is a brief overview of the potential problems that exist for
individuals seeking access to courts and access to awards of damages. This is not
the same as what has been termed a direct collision between EU law and national
procedural rules. Rather, this exemplifies the indirect collision whereby national
procedural rules can essentially hinder the effect of access to EU law. Primacy103
does not provide an adequate solution as there is no incompatibility of national law
which can be set aside to give greater access and effectiveness to the EU law
sought. Therefore the argument being presented requires the assistance and
cooperation of Member States to give greater effectiveness to EU law through
national courts. This has been achieved through the Commission Recommendation
in relation to collective redress for anti-competitive behaviour, and it is possible that
Member States, in good faith, could realise the effectiveness of damages for
individuals affected by the breach of EU law through its own action or inaction, and
given the strict and literal approach to future transposition to be taken, as promised
by the government, it would by necessity only be the most flagrant breaches of EU
law which would satisfy the ‘sufficiently serious breach’ to establish the culpability of
the State and the award of damages.

If a system of collective redress can overcome a major barrier to the accessibility of

State Liability, with its power to compel action on the part of Member States whilst
deterring malpractice or intransigence, what form should it take? Three bodies that
could take the necessary action are the Commission, the Member States
themselves, or the Court of Justice. Using a legislative or case law approach, each
would have benefits and drawbacks, and whilst it is beyond the scope of this article

98
Sacha Prechal & Rob J.G.M. Widdershoven, Effectiveness or Effective Judicial Protection: A Poorly
Articulated Relationship, in: Tristan Baumé et al. (eds.), Today’s Multi-layered Legal Order: Current
Issues and Perspectives, 283 (Zutphen: Paris 2011).
99
Case C-268/06 Impact v Minister for Agriculture and Food and others [2008] E.C.R. I-2483.
100
Case C-279/09 DEB v Germany [2010] E.C.R. I-13849.
101
Case C-12/08 Mono Car Styling SA (in liquidation) v Odemis and others [2009] E.C.R. I-6653.
102
Joined Cases C-317/08 to C-320/08 Alassini and Others v Telecom Italia [2010] E.C.R. I-2213,
and Case C-418/11 Texdata Software GmbH [2013] ECR I-0000.
103
For a broader discussion of primacy and procedural autonomy see René Barents, The Precedence
of EU Law from the Perspective of Constitutional Pluralism, 5 European Constitutional Law Review, 5,
421 (2009), and Koen Lenaerts & Tim Corthaut, Of Birds and Hedges: the Role of Primacy in Invoking
Norms of EU Law, 31 European Law Review, 287 (2006).

18
to critique each in the depth necessary to do justice to such discussion,104 it is
sufficient at this point to outline the most significant aspects.
The most likely form collective redress would take is through legislative action
from the Commission (supported by subsequent judicial action through the Court of
Justice and national courts). As has been seen, in respect of competition law and the
protection of consumers, the Commission had identified problems in the availability
of damages and enforcement generally:

despite the requirement to establish an effective legal framework turning

exercising the right to damages into a realistic possibility, and although there
have recently been some signs of improvement in certain Member States, to date
in practice victims of EC anti-trust infringements only rarely obtain reparation for
the harm suffered.105

The Commission called106 for Member States to introduce a system of injunctive and
compensatory collective redress mechanisms in domestic law with a deadline of July
26, 2015. Being a Recommendation, and requesting implementation, did not
establish any compulsion on Member States to transpose this initiative into domestic
law. However, the Commission stated that it would evaluate the status of collective
redress laws in the Member States after a four-year period. Even at this stage, given
the details provided by the Commission and the request for Member States to adopt
this Recommendation, it is considered to be a mere intermediate step107 and that
certainly within the four-year period, the Commission will be establishing a directive
to ensure collective redress is part of the legal systems of Member States when
protecting consumers generally and anti-trust / competition laws in particular. Many
Member States already had collective redress mechanisms in place in their legal
systems prior to the Recommendation and, unsurprisingly, there has been a quiet
acceptance to the aims of the Commission in this regard. On 12 June 2013, following
the Recommendation, the UK began consultation on its draft Consumer Rights Bill
which, among others, sought to establish a system of enforcement of consumer and
competition laws utilising, in part, collective redress (and collective settlement) as a
vehicle for access to justice.
This form of collective redress was realised in England and Wales in 2015
through the Consumer Rights Act. This is a very positive first step, and through
utilising an opt-out model, it demonstrates a movement towards seeing the value of
collective redress in combating wrong-doing, providing access to justice, and
deterring actions which seek to provide a competitive advantage deriving from
malfeasance or abuse. The government was not obliged to follow the
Recommendation, and the fact that both the EU and the UK have voluntarily entered
into the spirit of access to rights and access to justice through a mechanism of
collective redress, albeit in relation to competition laws, must be viewed as a
potential willingness to progress this to other areas. The opt-out model chosen by
the UK in Schedule 8 of the Consumer Rights Act to transpose the

104
Such detailed discussion will be provided in the second part to this article.
105
White Paper on Damages Actions for Breach of the EC Antitrust Rules COM (2008) 165 final (2
April 2008) 1.1, at [2].
106
Draft Commission Recommendation on common principles for injunction and compensatory
collective redress mechanisms in the Member States concerning violations of rights granted under
Union Law, C (2013) 3539/3, 11 June 2013.
107
As the Recommendation procedure is not binding, but is of politically persuasive force.

19
Recommendation, offers potentially greater benefits for individuals (and competitors)
than may have been achieved through an opt-in model. Deterrence will likely be
greater, as will facilitating the functioning of the internal market.

A. ESTABLISHING THE RULES OF COLLECTIVE ACTIONS IN STATE LIABILITY

Extending the argument for collective redress to State Liability will necessitate
legislative action by the EU rather than relying on the Member States or indeed the
Court of Justice to take up such an initiative. Member States would and have
demonstrated differing approaches to such access, and whilst they may be willing to
accede to the necessity for collective redress when preventing the worst examples of
anti-competitive behavior, whether Member States would willingly establish a system
which makes it easier for claims against them due to their own transgression of EU
law is unlikely at best. A Regulation or directive would be required to compel
adherence and ‘acceptance’ of a system of collective redress in this area.
Further, collective redress would likely be subject to limitations and
restrictions on the bodies empowered to bring such claims; be subject to strict
deadlines;108 rules of quantification and limitations to the awards of damages would
be essential for the efficacy of a system of collective redress in areas of competence
such as social policy; and it would have to require Member States to provide access
to documents and evidence regarding consultations and discussion109 culminating in
the transposition of a directive – subject to a balancing of the rights and legitimate
interests of the State and the claimants (possibly exercised by the Court of
Justice).110 Despite the discovery rules in England and Wales which are broad,
especially when compared to the requirements established by the Commission in
relation to anti-competition enforcement, it may also necessitate the adoption of an
exception to the general rules on burden of proof by adopting legal presumption.
This situation would benefit the claimants who may not have access to materials and
evidence111 through which to substantiate a prima facie assertion – although the
presumption is defeated through (even weak) evidence. Finally, collective redress
would be governed through the application of strict procedural rules to ensure control
of the activities of claimants and their representatives.112

108
Such as an EU-based, not less than five-year, limitation period in which claims may be lodged,
given the disparity in limitation periods for damages actions between the Member States.
109
Although, given the often long periods between enactment of a national implementing law and a
subsequent analysis of judicial enquiry in a related claim, gathering sufficient information to
demonstrate the State’s deliberate non-compliance can be problematic – see Delaney v Secretary of
State [2014] EWHC 1785 (QB) paras 94-101.
110
Per Case C-536-11 Bundeswettbewerbsbehorde v Donau Chemie AG and others (2013) E.C.R. I-
0000, paras 46 and 47.
111
In an opinion delivered on 7 February 2013 in Donau Chemie (n 89) A-G Jääskinen stated: ‘… the
principle of effective judicial protection laid down in Article 47 of the Charter comprises various
elements; in particular, the rights of the defence, the principle of equality of arms, the right of access
to a tribunal and the right to be advised, defended and represented… Hence, limiting availability of
critical evidential material undermines the right of litigants to a judicial determination of their dispute. It
also impacts on their rights to bring cases effectively.’ (paras 52 and 53).
112
As in the US, for example, with the US Federal Rules of Civil Procedure which at Rule 23(a)
provides for the satisfaction of four criteria applicable to all class action claims (see Amchem Prods. v
Windsor, 521 US 591, 613 (1997): 1) the numerosity of the class; a commonality of the class in
relation to questions of law or fact; 3) a typicality of the class members’ claim; and 4) adequacy of the
legal representation afforded the members of the class in relation to their interests.

20
 In relation to those rules necessary to substantiate claims, it is likely that rules
similar to those established for anti-competition law,113 based as they are on a
breach of statutory duty, would be followed. This has been particularly successful in
areas such as enforcement and obtaining damages in workplace health and
safety.114 Having breached the statutory duty (due to non- or (sufficiently serious)
incorrect transposition) which has caused the claimants damage/loss (through denial
of protective employment rights for example), the first two tests are satisfied. The
remaining tests require the claimant to establish that the legislator intended to create
a private right of action and fourthly, that the statute sought to protect the victim
against the damage suffered.
Despite the objection of using breach of statutory duty to facilitate the award
of a civil remedy for a failing on the part of a legislator, which may for example cause
‘an undesirable potential for conflict between governmental discretion and the private
right of enforcement’,115 a Member State has the capacity to safeguard its position
and limit exposure to unreasonable and unsustainable damages actions by multiple
claimants. It may choose to explicitly avoid the award of damages (unless
unequivocally provided for in the relevant EU parent law) by placing into the
transposing legislation, and making available, a system of compensation or other
remedies which are ‘no less accessible’. This would thus avoid the requirement for
State Liability claims from the outset by making an alternative form of remedy
available to all (multiple) claimants. Protection in this area has also been provided to
Member States where, for example, broad discretion as to the requirements of
transposition of EU law is present.116 In Dillenkofer v Federal Republic of
Germany,117 as there was little doubt what the directive required, the fact that
Germany failed in its transposition duties resulted in a finding of liability on the part of
the State due to the lack of discretion. Further, where the State has made a genuine,
albeit mistaken attempt at transposition, liability will not be established unless the
misunderstanding was cynical or egregious.118
A successful claim of breach of statutory duty requires satisfaction of the test
that the relevant statute intended to protect victims against the kind of damage
suffered. Claimants seeking redress under laws established through the EU’s social
policy competence, for example, are likely to be well placed to demonstrate they fall
under the specific class of persons to whom legislation sought to protect. Further,
establishing that claimants possessed the standing for the purposes of satisfying the
requirement of being in a class who are protected from the kind of damage suffered
is not subject to a maximum, hence multiple claimants seeking collective redress in
one legal action would not be a bar to a claim,119 insofar as they are an ascertainable

113
J. S. Davidson ‘Actions for Damages in the English Courts for Breach of EEC Competition Law’
(1985) 34(1) International and Comparative Law Quarterly 183.
114
Margaret Fordham, Breach of Statutory Duty: A Diminishing Tort, Singapore Journal of Legal
Studies 370 (1996).
115
Barry J. Rodger & Angus MacCulloch, Community Competition Law Enforcement, Deregulation
and Re-regulation: The Commission, National Authorities and Private Enforcement, 4(3) Columbia
Journal of European Law 610 (1998).
116
See Case C-392/93 R v HM Treasury, ex parte BT [1996] QB 615) and the commentary of the
Court of Justice in Brasserie du Pêcheur (see paras 43 and 44).
117
Joined Cases C-178, 179 and 188-190/94 Dillenkofer v Federal Republic of Germany [1996]
E.C.R. I-4845.
118
See R (on the application of Negassi) v Secretary of State for the Home Department [2013] EWCA
Civ 15.
119
Roe v Sheffield City Council [2004] QB 653.

21
class. The final issue, and most problematic, is of the specific head of damages. This
will likely prove to be the most significant issue for collective redress through breach
of statutory duty. Awards of damages as compensation for physical injury are not
uncommon, whereas awards for economic losses have generally been much more
restrictive,120 and will likely be the only remedy sought for the State’s Liability in
transposing EU law. Foreseeability and remoteness have effectively limited the
extension of economic losses as being recoverable in isolation of physical loss
(which is deemed foreseeable) for many reasons, the floodgates argument being
central to limiting the number of claimants and the defendant’s exposure to risk
(which would be significant in cases involving social policy laws and workers) and
that economic loss involves an unreasonable level of speculation. To remove any
uncertainty, and the associated ‘speculative’ dimension to economic loss, legislative
action would remove doubt and establish clear rules regarding its application
throughout the Member States. Crehan121 established the English courts approach to
bending the rules regarding the requirement of foreseeability to facilitate a successful
claim for economic loss. Similarly, the Commission could also legislate to enable
discretion for national courts to find recovery for economic loss and to enable their
calculation of any subsequent awards to be based on factual circumstances.
As has been demonstrated in this article, there are several examples of the
limited effectiveness of State Liability in its current form. This is despite the judicial
activism of the Court of Justice. The Commission, by assessing the impact of the
Recommendation, and in subsequently developing the expected directive on
collective redress for breaches of competition law, has demonstrated a willingness to
legislate. This is despite the potential constitutional problems this may present. More
broadly than the UK, there are potential problems for some Member States 122 in the
nature of a general system of collective redress which binds individuals to a legal
action and subsequent judgment to which they did not take part, make any outward
step in which to be involved, and in which the individual did not have the possibility to
intervene. The opt-out model is certainly a welcome movement by the UK and would
be a necessity when introducing collective redress for State Liability. The traditional
inter partes method of litigation needs to be reassessed when considering an
effective means of holding the State to account for breaches of EU law and whilst
constitutional rights may be impinged, and associated complexity would be
introduced through opt-out claims, the benefits for individuals, largely denied any
meaningful access to State Liability and reliant as they currently are on action
through the Commission to hold a Member State to account, outweigh these
potential problems. This point is not made flippantly, but a new paradigm for effective
rights management and enforcement is required if the new legal order of the EU,123
first enshrined in 1963, is to be effected across the Member States.

120
In torts if not contract, as famously seen in Spartan Steel & Alloys Ltd v Martin & Co (Contractors)
Ltd [1973] 1 QB 27 which demonstrates the requirement for economic losses as recoverable when
associated with physical loss. However, Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
stands as the exception here.
121
Crehan v Inntreprenneur Pub Co [2004] EWCA Civ 637.
122
For example the German Constitution where no general collective redress mechanism exists. The
German Code of Civil Procedure is focused on two party claims although an opt-out settlement
system was inserted into the Capital Market Model Claims Act (Kapitalanleger -
Musterverfahrensgesetz (KapMuG)).
123
Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] E.C.R. 1,
[1963] CMLR 105.

22
 With the Commission’s Recommendation, and the subsequent UK response
through the Consumer Rights Act 2015, it appears a definite move towards collective
protection and enabling greater access to justice is taking place. The UK has gone
further than necessary to hold wrong-doers in the field of competition law to account
and facilitate a class of affected individuals’ access to their rights. It can only be
hoped that in applying these strict standards of behaviour to such entities operating
in the UK, and establishing an ease of access to available enforcement mechanisms,
the government is equally willing to accede to future calls for collective redress in
State Liability, potentially against itself.

VI. CONCLUSIONS
This article has sought to identify a path to justice for individuals affected by a breach
of EU obligations of a Member State. To facilitate State Liability’s use and evolution
from a damages-only action through tortious liability, to becoming a viable
enforcement mechanism, the need for a system of collective redress to be made
available is crucial. Using the collective redress model established in the
Commission’s Recommendation in 2011 as the basis for extending the argument
that political will may be present from the actions of the Commission and the
Member States to facilitate access to justice through collective redress, it has been
argued that extending this principle to State Liability as a genus, but on a sectoral
basis, would provide both benefits of redress and access, whilst fulfilling the EU’s
requirement that Member States adhere to their obligations. There are no legal or
political bars to prevent the extension of collective redress to State Liability, the fears
that collective redress will lead to the establishing of a litigation culture and abusive
legal system across the EU are ill-founded, and Member States appear to be
amenable to the concept and exercise of collective redress as a system of facilitating
private enforcement of EU law.
Individuals who are denied rights granted through the membership of the EU
must have an appropriately accessible and transparent system of redress available.
Many individuals lack the social and economic power to secure their EU rights, and
were this not the case, the system of EU law reporting and education, in the UK at
least, makes awareness of laws and existing sources of help limited, disjointed and
prohibitory. Individuals are also affected in their daily lives by EU rights (perhaps
most visible to them through social policy initiatives) which, when denied through
inadequate action on behalf of the State, profoundly and adversely affect their lives,
but may be difficult to quantify financially. This makes the system of redress through
State Liability as a mere damages action restrictive, largely inappropriate, but
presently necessary. The consequential deterrence effect of many, albeit individually
financially insignificant joined cases, may be witnessed when awards are provided to
a class of claimants such as workers. The collective effect of such damages
payments may serve as the necessary incentive for a State to correctly, and on-time,
transpose EU directives.
The cost/benefit ratio of the necessary changes to the Member States’ legal
systems requires close examination, but it appears, prima facie, to be worth the
resource investment by the Commission to remedy the current limited effectiveness
of State Liability. Data is needed as relatively little research has been conducted that
conclusively substantiates the economic benefit for the introduction of collective

23
actions in State Liability.124 However, the advantages of making EU rights
accessible, creating a transparent system of redress and limiting the opportunities for
a wrong-doing State from benefiting therefrom, certainly provides substantial
advantages in ensuring EU law is followed and made available to those who are
often the most vulnerable in society.

124
Although such a methodology has been established and applied to collective redress in consumer
protection – see European Commission – DG SANCO ‘Evaluation of the effectiveness and efficiency
of collective redress mechanisms in the European Union’ Final Report. Part I: Main Report Submitted
by: Civic Consulting (Lead) and Oxford Economics (available at
http://ec.europa.eu/consumers/redress_cons/finalreportevaluationstudypart1-final2008-11-26.pdf) at
[136].

24