Update: New class action – Bundestag passes representative action for redress

On 7 July 2023, the German Bundestag passed the Representative Actions Directive Implementation Act (Verbandsklagenrichtlinienumsetzungsgesetz – the “Representative Actions Act”), thus moving forward the long-overdue implementation of the EU Representative Actions Directive 2020/1828 (the “Directive”). Because the legislative procedure involves the Bundesrat, the Representative Actions Act will most likely enter into force in September only.

The core of the new Representative Actions Act is the introduction of a collective action for redress in addition to the model declaratory action already available since 2018. Due to the changes proposed by the judiciary committee of the Bundestag (BT-Drs. 20/7631), the version of the Representative Actions Act that has now been passed differs in important points from the ministerial draft and the government draft (BT-Drs. 20/6520) (see for the two drafts our articles on 16 February 2023 and 31 March 2023.

Scope of application

The representative action covers all civil law disputes regarding claims and legal relationships of a number of consumers against an undertaking (section 1(1) of the Consumer Rights Enforcement Act – “CREA” (Verbraucherrechtedurchsetzungsgesetz)). This means that the area of applicability is significantly broader than that required by the Directive, i.e. with provisions related to not only consumer protection but also, for example, general tort law. The representative action could become important in Germany, particularly when it comes to claims for damages under data privacy law, product liability cases, claims for antitrust damages, capital investment cases and the enforcement of the Digital Markets Act.

Companies with fewer than ten employees and annual turnover or an annual balance of not more than €2 million (small and medium-sized enterprises) are considered equivalent to consumers and will also be permitted to join representative actions (section 1(2) CREA). In this respect, too, the Directive’s requirements are being exceeded in the implementation. However, fewer companies are covered than initially planned in the government draft.

Standing to bring an action

Consumers themselves are not authorised to bring an action, but rather only eligible (German) consumer associations named in the list in section 4 of the Act on Prohibitory Actions (Unterlassungsklagengesetz) that do not receive more than 5% of their funding from companies (section 2(1) no.1 CREA). The requirement that an association have been on the list for one year makes it seem possible that associations are also founded for one specific situation (ad hoc) in order to bring actions. Also, associations from other EU Member States can bring actions in Germany (section 2(1) no. 2 CREA). The lowered threshold for the associations to bring an action means that representative actions are more likely to be brought in future.

Representative actions are also appealing because the fairly low cost risks for associations eligible to bring an action are fairly reasonable – the value in dispute is capped at €300,000 (representative action) or €250,000 (model declaratory action) irrespective of the actual economic importance of the case.

Pooling similar types of claims

Compared to the government draft, the representative action for redress substantially lowers the requirements for similarity of the claims covered. An action redress is only admissible if the claimant asserts that the action concerns similar claims. However, the relevant claims only have to be “materially similar” (section 15(1) sentence CREA). This is the case when the claims are based on the same facts or on a set of materially comparable facts and essentially the same factual and legal issues are decisive for the claims (section 15(1) sentence 2 CREA). The broad wording gives the courts much more flexibility in handling representative actions. Whether the claims at hand are similar enough will most likely be one of the most controversial issues.

Consumer quorum: claims by at least 50 consumers affected

Contrary to the government draft, claimants no longer have to provide evidence that claims by at least 50 consumers are affected by the representative action. Claimants only need to “reasonably demonstrate” that 50 claims are affected (section 4(1) CREA).

How the new representative action for redress works

The new representative action for redress, which must be brought before the Higher Regional Court at the defendant’s place of business, is available in three models:

In the first model, the association knows the affected consumers by name and seeks performance directly to the consumers (section 16(1) sentence 2 CREA). If this succeeds, the company is ordered to pay directly to the consumers. In practice this model will probably not be used often because an association usually does not know the affected consumers.

The second model will probably be the most relevant from a practical point of view. In this model the association requests performance to unnamed consumers who are only identified by common group characteristics (section 16(1) sentence 2 CREA). The main procedural steps are the judicial proceedings for redress (interlocutory judgment on redress, settlement phase and final judgment on redress), the implementation proceedings with an optional judicial review on the trustee’s decision and (in some cases) subsequent judicial individual proceedings:

 

In the third model, the parties can adapt the second model and apply for a single judgment which contains all decision otherwise split between the interlocutory and final judgment on redress (section 16(4) CREA).

In the second and third models, within narrowly defined boundaries, consumers and companies can ask the competent Higher Regional Court to review the trustee’s decision on the claims registered (section 28(4) CREA). This opens the door to making an already complicated, tedious and drawn-out process even longer and more expensive.

Late pre-judgment opt-in

Consumers must actively join the representative action by registering their claims with a public register. The deadline for registration was changed several times in the legislative process. Registration is now possible up to three weeks after the end of the court proceedings in first instance (section 46(1) sentence 1 CREA). Since a judgment must not be issued earlier than six weeks after the conclusion of the trial (section 13(4) CREA), consumers must always register before a judgment.

This late opt-in option will often make it very difficult for companies to engage in meaningful settlement negotiations prior to a judgment. The reason for this is that companies  will not be able to ascertain before the start of settlement negotiations who and how many people have registered their claims and accordingly which claims are covered by a potential settlement.

Strict provisions on third party litigation funding

Third party litigation funding is permissible in principle. The requirements are more precise and stricter than in the ministerial and government drafts.

If the litigation funder’s success fee exceeds 10% of the sum to be paid by the defendant, the action is inadmissible (section 4(2) no. 3 CREA). The association must disclose the sources they use for funding the representative action as well as the financing agreement to the court (section 4(3) CREA). If the representative action is successful, the claimed amount must first be paid to the individual consumer. It is not allowed to deduct the success fee from the collective total awarded by the court. This is due to the structure of the implementation proceeding.

Litigation funding of actions for skimming of profits allowed

There is no explicit limit for the success fee in case a qualified entity uses third party litigation funding for financing an action for skimming off profits under section 10 of the German Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb – “Unfair Competition Act”). However, a prerequisite is that the Federal Office of Justice approves the financing conditions prior to the fling of the claim (section 10(6) of the Unfair Competition Act). Another significant change is that not only intentional but also grossly negligent violations of the Unfair Competition Act give rise to a claim for skimming off profits (section 10(1) of the Unfair Competition Act). Finally, such actions are more attractive in the future because the value of dispute  will be capped at €410,000, limiting the costs of the proceedings considerably.

Suspension of statute of limitations

Bringing a representative action only suspends the statute of limitations for claims that have been registered by consumers and small businesses (section 204a(1) sentence 1 no. 4 CREA). Suspension of the statute of limitations is thus much more narrowly defined than in the case of an action for an injunction which suspends the statute of limitations for all consumer claims affected by the violation without the need to register claims (section 204a(1) sentence 1 no. 2 CREA).

It should be noted that the suspension of the statute of limitations for representative actions for redress and injunctive actions does not apply to claims arising out of past infringements (Article 9 of the Representative Actions Act). Since filing a model declaratory action suspends the statute of limitations even in those cases, it is likely that association can be expected to file a model declaratory action alone or in addition to a representative action for redress (at least in old cases).

Next steps: involving the Bundesrat

Before the Representative Actions Act can enter into force, the Bundesrat must be involved (consent to the Act is not required, however). This will not be the case before early September. This means that, like many other Member States, Germany will not met the deadline for implementing the Directive (25 June 2023).

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Noerr is a pioneer in defending against collective and mass actions. With a specialised team of over 50 lawyers in our Class & Mass Action Defence practice group, Noerr regularly advises clients on defending against capital investor model proceedings, model declaratory actions and representative actions as well as on defending against claims through structured litigation vehicles and in mass actions.