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Germany: New Law Allows Consumer Class Actions

(July 31, 2018) On July 17, 2018, a new law to allow consumer class actions (“model declaratory proceedings”) was published in Germany’s Federal Law Gazette. The Act will enter into force on November 1, 2018. (Gesetz zur Einführung einer zivilprozessualen Musterfeststellungsklage [Act to Introduce Civil Model Declaratory Proceedings], July 12, 2018, Bundesgesetzblatt [BGBl.] [FEDERAL LAW GAZETTE] I at 1151.)

Qualified Institutions to Bring Class Actions

The Act authorizes certain qualified institutions to sue a company on behalf of consumers at the Higher Regional Court (Oberlandesgericht OLG). “Qualified institutions” are defined as institutions that are qualified according to the German Act on Injunctive Relief (UKlaG) to bring representative actions on behalf of consumers and that

  • are composed of at least ten other consumer protection associations or at least 350 natural persons;
  • have been on the list of associations qualified to bring an action under § 4 of the UKlaG or the list of the European Commission for entities qualified to bring an action under article 2 of Directive 2009/22/EC on injunctions for the protection of consumers’ interests for at least four years;
  • in execution of their statutory tasks generally protect consumer interests on a nonprofit basis by carrying out educational or advisory tasks;
  • do not bring model declaratory proceedings for profit; and
  • do not receive more than 5% of their financial resources from businesses.

The Act contains a nonrebuttable presumption that consumer associations that are mainly publicly funded fulfill the aforementioned requirements. (Act to Introduce Civil Model Declaratory Proceedings art. 2, no. 5, § 606, para. 1; Unterlassungsklagengesetz [UKlaG] [Act on Injunctive Relief], Aug. 27, 2002, BGBl. I at 3422, 4346, as amended, German Laws Online website; Notification from the Commission Concerning Article 4(3) of Directive 2009/22/EC of the European Parliament and of the Council on Injunctions for the Protection of Consumers’ Interests, Which Codifies Directive 98/27/EC, Concerning the Entities Qualified to Bring an Action Under Article 2 of this Directive, 2016 O.J. (C 361) 1, EUR-LEX website.)

Admissibility of Consumer Class Actions

The qualified institutions must show that at least ten consumers are affected by the allegations made in the lawsuit. Furthermore, at least fifty consumers must register their claims in the to-be-established claims register for model declaratory proceedings within two months after it has been publicly announced in the claims register that a model declaratory proceeding has been filed. (Act to Introduce Civil Model Declaratory Proceedings art. 2, no. 5, § 606, para. 3.) Other consumers may join the model declaratory proceedings until the end of the day for which the first court date has been set. (Id. art. 2, no. 5, § 608, para. 1.)

From the day that the model declaratory proceeding is pending, no other action may be filed against the same defendant in the same matter. If several actions on the same matter are filed the same day, the court will join the cases. As long as a model declaratory proceeding is pending, individual consumers that registered their claims are enjoined from filing a separate lawsuit against the defendant concerning the same subject matter. (Id. art. 2, no. 5, § 610.)

End of Proceedings

Model declaratory proceedings end either with a settlement or a declaratory judgment. (Id. art. 2, no. 5, §§ 611-613.) Settlements become binding when they are approved by the court and when less than 30% of the registered consumers withdraw from the settlement within the one-month time frame. (Id. art. 2, no. 5, § 610.) A declaratory judgment can be appealed within one month to the Federal Court of Justice (Bundesgerichtshof, BGH). (Id. art. 2, no. 5, § 614.)

Reactions

The German Federal Minister of Justice, Katarina Barley, commented that “[w]hoever is in the right must win his case. The introduction of the ‘one for all lawsuit’ strengthens consumers […] and helps them enforce their rights – for free and fast. […] Examples [include] the Diesel scandal […]. [The ‘one for all lawsuit’] contributes to a democratization of our legal system and strengthens trust in the rule of law.” (Press Release, Bundesministerium der Justiz und für Verbraucherschutz [Federal Ministry of Justice and Consumer Protection], Die „Eine-für-Alle-Klage“ kommt – Bundestag beschließt Gesetz zur Musterfeststellungsklage (MFK) [The “One for All Lawsuit” Is Coming – Parliament Approves Act on a Model Declaratory Proceeding] (June 14, 2018), Federal Ministry of Justice and Consumer Protection website (translation by author).)

The Federal Association of Consumer Associations (Verbraucherzentrale Bundesverband, VZBV) generally welcomed the introduction of model consumer class actions as a “milestone for consumer rights.” However, the VZBV criticized the fact that the requirements for qualified institutions prohibit smaller regional or specialized institutions from filing suits on behalf of consumers, among other things. (Press Release, Verbraucherzentrale Bundesverband [Federal Association of Consumer Associations], Musterfeststellungsklage verabschiedet [Model Declaratory Proceeding Approved] (June 14, 2018), Federal Association of Consumer Associations website.)