Lessons from America
New Horizons in Law and Economics series
Edited by Jürgen G. Backhaus, Alberto Cassone and Giovanni B. Ramello
Chapter 15: The Constitutional Impact of Class Actions in European Legal Systems
Jörg Luther The transplant of class action into European Legal Systems has to face several questions arising from the European Constitutionalism. Legal comparison helps to understand that the European future of class action depends first of all on how we understand the European origins (Section 1) and the diversity of European legal cultures and societies (Section 2). The political choice of the European lawmakers can be conditioned by specific reasons of economical rationality and cultural reasonability. They are obliged to hold in balance different national and supranational constitutional rules and principles. An assessment of the constitutional impact could be helpful if we take into consideration aspects such as the law making competences (Section 3), the fundamental social and economical rights (Section 4) and the rights of action and defence (Section 5). The following remarks, however, try just to start a comparative debate from an Italian point of view (Section 6). 1. THE EUROPEAN ROOTS OF THE ‘CLASS ACTION’ Comparative lawyers look to the ‘class action’ as an institution of the federal and state law of the United States grounded on the English ‘representative action’.1 This history should need further research from a larger comparative perspective, looking also at the roman law rules of ‘pro alio agere’ through special forms of ‘procurator ad litem’, such as the ‘duoviri’ in the cases of municipia, the ‘quivis ex populo’ beneficiary of a poena in the 1 For a critical reconstruction see Yeazell (1987, pp. 38ff), preceeded by Marcin (1974), and followed by...