Update: On the implementation of the Directive on representative actions

May 20, 2022 Benn-Ibler Rechtsanwälte

The European "Directive on representative actions for the protection of the collective interests of consumers and repealing" (Directive 2020/1828) of November 25, 2020 obliges member states to establish a procedure for collective redress and adequate safeguards to prevent abuse of redress. The Directive must be implemented by December 25, 2022 at the latest and the implementing legislation must enter into force by June 25, 2023 at the latest.

According to the Directive, collective legal enforcement is possible in case of infringements by traders of Union acts listed in the Annex, in particular in the area of product liability, aviation and general terms and conditions. For this purpose, there are to be qualified entites in each member state that can enforce the claims of consumers.

According to information from the Federal Ministry of Justice (Bundesministerium für Justiz, BMJ), the responsible department is currently drafting the necessary implementation provisions. For this purpose, a working group with various stakeholders and representatives of legal science has also been established. However, this technical process has not yet been completed. Political coordination has not yet begun, so that a draft opinion will probably be a long time coming.

The Government Programme (Regierungsprogramm) 2020 - 2024 gives an idea of how Austria will use its - relatively large - room for manoeuvre in the implementation. According to this, the Directive is to be implemented as an Opt-In Principle (consumers must expressly agree that they want to be represented by a complainant association in the context of representative actions), whereby a low-threshold protection of similar claims against the statute of limitations (as long as model proceedings are pending in court) is to be ensured. The Loser Pays Principle should be maintained. In addition, low-threshold access is to be ensured, in particular the retention of the possibility of litigation funding. The Austrian-style makeshift solution of a class action, which is currently in use in Austria, is to be expressly retained. Foreign judgements should not have any binding effect.

Government Programme 2020-2024, information BMJ (26.04.2022)