File #2682: "2019_Book_CollectiveActionsInEurope.pdf"
Testo
1|Preface|6
1|Contents|8
1|1 Introduction|11
2|References|17
1|2 Why Are Collective Actions Needed in Europe: Small Claims Are Not Reasonably Enforced in Practice and Collective Actions Ensure Effective Access to Justice|19
2|2.1 What Are the Hurdles Faced by Small Claims in Europe|21
2|2.2 How Do Collective Actions Overcome the Above Hurdles and Why Are They Efficient?|24
2|2.3 Why Are Collective Actions Not Working Spontaneously if They Are Efficient?|26
2|2.4 How Could Collective Actions Be Made Work?|27
2|2.5 Summary|30
2|References|30
1|3 Major European Objections and Fears Against the Opt-Out System: Superego, Ego and Id|33
2|3.1 European Objections Against Class Actions: Scruples or Pretexts?|33
3|3.1.1 Constitutional Concerns: Private Autonomy and Tacit Adherence|34
3|3.1.2 Opt-Out Collective Actions Are Alien to Continental Legal Traditions|40
3|3.1.3 It Is Very Difficult to Identify the Members of the Group and to Prove Group Membership|43
3|3.1.4 Opt-Out Collective Actions Would Lead to a Litigation Boom and Would Create a Black-Mailing Potential for Group Representatives|45
2|3.2 The Headspring of European Taboos and Traditionalism: Party Autonomy and the State’s Prerogative to Enforce the Public Interest|48
2|3.3 Summary|50
2|References|52
1|4 Transatlantic Perspectives: Comparative Law Framing|55
2|4.1 Disparate Regulatory Environments|55
2|4.2 Why Should Europeans Not Fear the American Cowboy? Diverging Effects of Disparate Regulatory Environments|62
2|4.3 The Novel Questions of Collective Actions in Europe|69
3|4.3.1 Funding in the Absence of One-Way Cost-Shifting, Contingency Fees and Punitive Damages|69
3|4.3.2 Two-Way Cost-Shifting|72
3|4.3.3 Distrust of Market-Based Mechanisms in the Enforcement of Public Policy (No Private Attorney General)|72
3|4.3.4 European Opt-In Collective Actions and Joinders of Parties|73
3|4.3.5 Opt-Out Systems and the “Only Benefits” Principle|74
2|4.4 Summary|76
2|References|77
1|5 European Models of Collective Actions|81
2|5.1 The European Landscape: To Opt in or to Opt Out?|83
2|5.2 Purview: Step-by-Step Evolution of a Precautious Revolution|95
2|5.3 Pre-requisites of Collective Action and Certification|98
2|5.4 Standing and Adequate Representation|105
2|5.5 Status of Group Members in Opt-in Proceedings: Liability for Legal Costs and Res Judicata Effect|108
2|5.6 Status of Group Members in Opt-Out Proceedings: Liability for Legal Costs, Res Judicata Effect and the “Only Benefits” Principle|111
2|5.7 Enforcement|115
2|5.8 Summary|116
2|References|118
1|6 Conclusions|123
2|6.1 Collective Actions Are Needed in Europe to Ensure Access to Justice and Effectiveness of the Law|124
2|6.2 European Objections and Fears Against the Opt-Out System: Superego, Ego and Id|126
2|6.3 Transatlantic Perspectives: Comparative Law Framing|127
2|6.4 European Models of Collective Actions: A Transsystemic Overview|129
2|6.5 Closing Thoughts: “Small Money, Small Football, Big Money, Big Football”|131
2|References|132
1|Contents|8
1|1 Introduction|11
2|References|17
1|2 Why Are Collective Actions Needed in Europe: Small Claims Are Not Reasonably Enforced in Practice and Collective Actions Ensure Effective Access to Justice|19
2|2.1 What Are the Hurdles Faced by Small Claims in Europe|21
2|2.2 How Do Collective Actions Overcome the Above Hurdles and Why Are They Efficient?|24
2|2.3 Why Are Collective Actions Not Working Spontaneously if They Are Efficient?|26
2|2.4 How Could Collective Actions Be Made Work?|27
2|2.5 Summary|30
2|References|30
1|3 Major European Objections and Fears Against the Opt-Out System: Superego, Ego and Id|33
2|3.1 European Objections Against Class Actions: Scruples or Pretexts?|33
3|3.1.1 Constitutional Concerns: Private Autonomy and Tacit Adherence|34
3|3.1.2 Opt-Out Collective Actions Are Alien to Continental Legal Traditions|40
3|3.1.3 It Is Very Difficult to Identify the Members of the Group and to Prove Group Membership|43
3|3.1.4 Opt-Out Collective Actions Would Lead to a Litigation Boom and Would Create a Black-Mailing Potential for Group Representatives|45
2|3.2 The Headspring of European Taboos and Traditionalism: Party Autonomy and the State’s Prerogative to Enforce the Public Interest|48
2|3.3 Summary|50
2|References|52
1|4 Transatlantic Perspectives: Comparative Law Framing|55
2|4.1 Disparate Regulatory Environments|55
2|4.2 Why Should Europeans Not Fear the American Cowboy? Diverging Effects of Disparate Regulatory Environments|62
2|4.3 The Novel Questions of Collective Actions in Europe|69
3|4.3.1 Funding in the Absence of One-Way Cost-Shifting, Contingency Fees and Punitive Damages|69
3|4.3.2 Two-Way Cost-Shifting|72
3|4.3.3 Distrust of Market-Based Mechanisms in the Enforcement of Public Policy (No Private Attorney General)|72
3|4.3.4 European Opt-In Collective Actions and Joinders of Parties|73
3|4.3.5 Opt-Out Systems and the “Only Benefits” Principle|74
2|4.4 Summary|76
2|References|77
1|5 European Models of Collective Actions|81
2|5.1 The European Landscape: To Opt in or to Opt Out?|83
2|5.2 Purview: Step-by-Step Evolution of a Precautious Revolution|95
2|5.3 Pre-requisites of Collective Action and Certification|98
2|5.4 Standing and Adequate Representation|105
2|5.5 Status of Group Members in Opt-in Proceedings: Liability for Legal Costs and Res Judicata Effect|108
2|5.6 Status of Group Members in Opt-Out Proceedings: Liability for Legal Costs, Res Judicata Effect and the “Only Benefits” Principle|111
2|5.7 Enforcement|115
2|5.8 Summary|116
2|References|118
1|6 Conclusions|123
2|6.1 Collective Actions Are Needed in Europe to Ensure Access to Justice and Effectiveness of the Law|124
2|6.2 European Objections and Fears Against the Opt-Out System: Superego, Ego and Id|126
2|6.3 Transatlantic Perspectives: Comparative Law Framing|127
2|6.4 European Models of Collective Actions: A Transsystemic Overview|129
2|6.5 Closing Thoughts: “Small Money, Small Football, Big Money, Big Football”|131
2|References|132