Challenges of Representation and Distribution
Edited by Jenny Steele and Willem H. van Boom
Chapter 6: Collective Rights and Collective Goods: Enforcement as Collective Interest
Eva Kocher 1. INTRODUCTION Substantive private law rules on consumer protection can have regulatory effects if complete enforcement takes place. However, such internalization of external economic effects fails where rational apathy of consumers inhibits enforcement. In these cases, representative action is needed. However, while “regulation through litigation” is a self-evident function of private law in the US legal system, it is still disputed in European civil law systems. A legitimate argument is the fear of “punitive damages”, i.e. damages that are not allocated to individuals. A European concept of enforcement by internalizing external effects would have to make sure that the same interest will not be covered twice. This article explores concepts that try to find a way of allocating a specific collective interest to collective actors and at the same time ensuring that the sum of the aggregate individual interests is not surmounted. 2. COLLECTIVE LEGAL ACTION AND CLASS ACTION: A HOT POTATO1 In the history of collective legal action, Europeans have always been fascinated by US class action – for different reasons. Some are fascinated with horror and use the term “class action” as a shield against collective action; the German legal system seems to be particularly hostile towards it.2 Some have been fascinated with awe and tried to find ways to copy, translate and transplant the institution into European contexts. I have rather been among the latter. Some 10 years ago, I even tried, with a colleague, to develop a class action model for German employment and labour...
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