Collective consumer redress in Europe

Empirical analysis of the degree to which the legal orders of the EU and Member States have been and are capable of leading to consumer redress for mass infringements 

At least since 2013, the EU legislator has recognized that consumer redress in Europe is seriously lacking, and that there are important structural defects preventing it from succeed. Its most recent attempt at contributing to the solution of this enforcement gap was the adoption of the Representative Actions Directive. However, such efforts have not been preceded (nor followed) by empirical studies of the realities of consumer redress in the various European States. Without such empirical knowledge, it is impossible to identify the factors with allow or prevent the success of consumer collective redress for mass infringements. The limited empirical studies available, mostly limited to some States and to certain areas of the law, show an extremely bleak scenario where consumer redress for mass infringements is so exceptional as to be negligible, all over Europe. And yet, recent legal reforms and practical changes in some States are raising the possibility that this scenario may change. The goal of this research is to provide a scientifically sound empirical basis for decision makers to base their decisions on the operationalization and optimization of consumer collective redress, but also to allow for transparency and greater democratic oversight of the legislative options which lead to the current status quo.

This research intends to build on the following papers: 

• Sousa Ferro, Miguel,  Consumer Antitrust Private Enforcement in Europe, JECLAP, 2022. 
• Sousa Ferro, Miguel, Consumer Antitrust Private Enforcement in Europe: As Complete a Survey as Possible (Extended Version) (September 19, 2022), https://ssrn.com/abstract=4223770. 

These papers report on the result of an empirical study that covered consumer redress during the entire existence of Competition Law in all of Europe. While the results were sufficient to lead to reliable conclusions, it acknowledged significant difficulties and gaps in the collection of information on precedents, and was limited exclusively to antitrust infringements. 

While there has been a significant number of studies, papers and books on the legal frameworks for collective redress in various European States or more broadly at EU level, as far as could be determined, there is no remotely complete empirical analysis of the reality of collective enforcement of consumer rights in Europe. There are merely collections of a few examples. This means the methodological approach for our research will be able to rely on existing legal literature only to a very limited extent, and will instead have to rely on more direct sources, such as judicial databases, news items published in press and digital media, interviews with consumer associations, government agencies, ombudsmen, lawyers and other key players, etc.

Plan and Methods

The work will begin by selecting a coordinating team, representing 5 geographically distributed universities, and by identifying and inviting at least one researcher for each EU Member State plus UK, Norway and Iceland. The coordinating team will then put together materials to support a meeting of the research team, setting out the description of the EU legal framework and its temporal evolution, plus a draft common basis for analysis of the legal framework of each State covered by the study and for the empirical collection and statistical processing of the precedents of collective consumer redress in each country. 

The second phase begins with an in-presence meeting of all the members of the research team aimed at a joint discussion of the common legal issues and preparing a final version of the common basis for the analysis to be carried out for each State. 

The third phase will be for individual work for each of the States, with periodical reporting and online meetings of the entire research team. 

The fourth phase will start with an in-presence meeting to present the results of the research for each Member State, harmonize discrepancies of approach and identify opportunities for further deepening of research. This is then followed by time for reformulation of national reports (to be used as a basis for papers to be published in national journals). By the conclusion of this phase, national rapporteurs will be incentivized to publish papers based on their research and findings in national journals, focusing on the specific State. 

During the fifth phase, the coordinating team will coordinate the final editing of all contributions and put together a joint report (in the form of a book), drafting the overall conclusions and recommendations in light of those conclusions, to be circulated and discussed between the entire research team. This is followed by the editorial phase with the publisher and review of proofs by authors and by (at least) the publication of 2 papers in international journals, authored by the coordinating team, presenting a summarized version of findings and recommendations. This phase concludes with the online publication of the book in open source and with a public presentation of the book and its recommendations.  

Research Team

Prof. Dr. Miguel Sousa Ferro

Duration: 2024-2026

Project ongoing