Collective Actions in Civil Procedure

1
Collective Actions in Civil Procedure

• a comparative overview

2
Germany

• Political Issue Public interest enforced through
  administrative rather than judicial means.
  Overtaxed European economies finance public
  agencies to monitor market and public interest.
  Judicial intervention viewed as burdensome
• Economic Analysis Fear of astronomic sums and
  fees. Do European markets support class
  actions?

3
Brazil and Latin America

• Political Issues a) Public agencies have a lack
  of resources to enforce public interests b) Is
  the judiciary adequate in delivering social
  justice?
• Economic Analysis a) the state as defendant tax
  payers pay the bill b) more social justice or
  more economic growth?

4
2 Collective Actions

• Individual rights in collective procedures
• Monetary relief

• Public Interest collective rights (quality of
  life or non-exclusion rights)
• Injunction and declaratory relief, Stop Orders

5
German Injunction Actions

• Unterlassungsklagegesetz UKlaG (2002)
  Injunctions in unfair consumer contracts ( 1)
  and unlawful practices ( 2).
• Unterlassungsklage (UWG) Unfair Competition Act
  ( 8) Injunction
• Behindertengleichstellungsgesetz Disabled Rights
  Act ( 13) all sorts of claims

6
Brazilian Collective Actions Legislation

• Public Civil Action Act (7,347/85) environmental
  and cultural rights protection
• Consumer Code (8,072/90)
• Disadvantaged children (8,089/90), elderly
  people (10,741/2003), the disabled (7,853/89)
• Investors in the stock market (7,913/89)

7
Adequate representatives

• Germany consumer associations as qualified
  entities (Directive 98/27). They must be
  registered at the Ministry of Administration. 4
  UKlaG
• Brazil Office of Attorney-General, non-profit
  associations, among others public entities. Art.
  82 Consumer Code.

8
An Industry dumps toxic waste in river

• Germany primarily through self-enforcement of
  administrative acts. Damages must be sought
  individually.
• Brazil Stop order based upon Public Civil Action
  Act (art. 1.), order to reinstate the status quo
  ante (specific performance) or, when not
  possible, to award damages to a public fund.

9
Government plans to build new airport with
environmental objections

• Brazil Action based upon art. 1. Public Civil
  Action Act (7.347/85). Stop order and possibly
  monetary relief to a public fund.
• Germany Environmental Associations can seek
  declaratory relief declaring the administrative
  act illegal (Administrative Courts), based upon
  Federal Environmental Act.

10
Telecom inserts unfair clause charging 1

• Germany Injunction Action (Stop order), based
  upon 307 ff BGB. Monetary relief only in
  individual actions. Former contracts are valid.
• Brazil Declaratory (the clause is void, art. 81,
  II) based upon art. 51 (unfair clauses CDC) and
  monetary relief addressed to the consumers (art.
  81, III).

11
Bank charges hidden costs to its clients

• Brazil Public Civil Action based upon unfair
  practice (Consumer Code) monetary recovery
• Germany Injunction Action (Stop order), based
  upon 3 UKlaG

12
Transport companies form a cartel to impose
artificial freight prices

• Brazil Public Civil Action based upon art. 29
  Unfair Competition Act (8,884/94). Monetary
  relief to the class members
• Germany Injunction Action based upon 1 UWG
  Stop order and 10 monetary relief as punitive
  damages to the state (Gewinnabschöpfung)

13
Medicine causes harmful side-effect

• Brazil Public Civil Action based upon Consumer
  Code seeking monetary relief and injunction to
  withdraw product from market.
• Germany Social Security for personal injuries.
  Injunction based upon 2, II, 5 UKlaG. Public
  Agency probably intervenes first.

14
Gas explosion in shopping centre injuries and
damages

• Brazil Action based upon art. 81, III Consumer
  Code (homogeneous individual rights)
• Germany no collective action. Social Security
  pays for injuries and seeks regress against those
  responsible.

15
Advertisement lures consumers into buying holiday
packages with hidden costs

• Brazil Public Civil Action based upon Consumer
  Code order to stop the ad, and alternatively
  to force the company to keep to the offered price
  or monetary relief
• Germany Injunction Action based upon 5 UWG
  (unfair competition act) stop order. Sort of
  punitive damages to the state (Gewinnabschöpfung)
  in 10.

16
Access for disabled people to public building

• Brazil Public Civil Action based upon
  Handicapped Protection Act (art. 3). Order to
  perform.
• Germany associations can sue on behalf of
  disabled people, based upon 13 Disabled
  Protection Act all claims, including monetary
  relief.

17
Adequate representative seeks to declare a tax
unconstitutional

• Brazil Supreme Courts (STJ and STF) do not allow
  such actions. Unconstitutionality in general
  terms is STF competence.
• Germany Federal Constitutional Court
  jurisdiction (but not in Collective Actions)

18
Substantive Act imposes government to provide
adequate public services (prisons, schools,
etc.)

• Brazil High Courts (STJ) start to admit specific
  performance in such actions, based upon Public
  Civil Action Act
• Germany executive matter.

19
Perspectives

• Germany Gradually developing collective actions
  seeking monetary awards. European Union pressure
  to introduce a class action.
• Brazil Project to introduce a Collective
  Procedures Code creative solutions, wide-ranged
  application.