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Erschienen in:
Collectivization of European Civil Procedure: Are We Finally Close to a (Negative) Utopia? Kapitel lesen Erstes Kapitel lesen

2021 | OriginalPaper | Buchkapitel

Challenges in Drafting and Applying the New Slovenian Collective Actions Act

verfasst von : Aleš Galič, Ana Vlahek

Erschienen in: Class Actions in Europe

Verlag: Springer International Publishing

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Abstract

The Slovenian Collective Actions Act (CAA) was enacted in September 2017 and came into effect in April 2018. Collective redress available in Slovenia before the enactment of the CAA did not provide for any collective compensatory actions for any group of victims. Only collective injunctive relief was available for safeguarding the interests of consumers under the Consumer Protection Act of 1998 that implemented the EU Injunctions Directive. As more and more mass harm cases were detected in Slovenia, and as collective redress became one of the focal topics within the EU, the CAA was perceived as an urgently needed piece of legislation and a top priority of the Slovenian Government in guaranteeing access to justice. The CAA was drafted in 2016 taking into account the European Commission’s Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under EU law, as well as best legislative solutions and practices of various foreign models. It introduced collective settlements, and compensatory and injunctive collective actions. Since the start of the application of the CAA, three collective actions have been filed with the courts under its rules. The purpose of this contribution is to show the challenges faced and the decisions taken in drafting the act as well as the problems the parties and the judiciary have been facing in the application of the CAA. The Slovenian experience may serve as a model of the “dos” and “don’ts” for all drafters of such legislation in the EU Member States where collective redress has not yet been implemented.

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Vorheriges Kapitel Rebooting Italian Class Actions
Nächstes Kapitel The Lessons of Airfreight Cartel: Mechanisms of Coordination of Parallel Collective Lawsuits in Several Jurisdictions?
Fußnoten
1
Zakon o kolektivnih tožbah (ZKolT), Official Gazette of RS, No. 55/17.
 
2
Zakon o varstvu potrošnikov (ZVPot), Official Gazette of RS, No. 20/98, with further amendments.
 
3
Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers’ interests, OJ L 166, 11.6.1998, pp. 51–55.
 
4
Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (codified version) Text with EEA relevance, OJ L 110, 1.5.2009, pp. 30–36.
 
5
2013/396/EU.
 
6
Draft CAA, No. EVA: 2016-2030-0007, p. 16.
 
7
Galič and Vlahek (2018), p. 25.
 
8
Galič (2008), para 200.
 
9
Obligacijski zakonik (OZ), Official Gazette of RS, N. 83/01, with further amendments.
 
10
It is not entirely clear whether this reference to interested person indicates that the action pursuant to Art. 133 of the CO is not a popular action. For further details, see Damjan (2011), pp. 243–270, 406–407.
 
11
See ibid.
 
12
Zakon o varstvu okolja (ZVO-1), Official Gazette of RS, N. 41/04, with further amendments.
 
13
For further details, see Damjan (2011), pp. 243–270, 406–407.
 
14
For further details, see Vlahek (2020) (in press).
 
15
Zakon o spremembah in dopolnitvah Zakona o varstvu potrošnikov (ZVPot-A), Official Gazette of RS, No. 110/2002.
 
16
Zakon o izvršbi in zavarovanju (ZIZ), Official Gazette of RS, No. 51/98, with further amendments. See Galič (2008) para 289 ff.
 
17
See Galič (2011), pp. 215–229, 402–403.
 
18
For further details, see Galič (2008), para 315 ff.
 
19
See also Galič and Vlahek (2018), p. 217.
 
20
Galič (2008), para 200.
 
21
Ibid.
 
22
Ibid.
 
23
Zakon o pravdnem postopku (ZPP), Official Gazette of RS, No. 26/99, with further amendments.
 
24
Sosporništvo, Arts. 191–198 CPrA. For further details, see Pogorelčnik Vogrinc (2018), pp. 35–36.
 
25
Združitev pravd, Art. 300 CPrA.
 
26
Vzorčni postopek, Art. 279b CPrA. For further details, see Betteto (2011) 231–241.
 
27
Art. 79 of the Labor and Social Courts Act, Official Gazette of RS, No. 2/04, with further amendments. In labour disputes, the general rules of the CPrA on the model case procedure apply.
 
28
Art. 62c of the Prevention of Restriction of Competition Act, Official Gazette of RS, No. 36/08, with further amendments.
 
29
Galič and Vlahek (2018), p. 26.
 
30
For further details, see Vlahek (2016), p. 381.
 
31
Later renamed Society for the Rule of Law (www.​dzp.​si).
 
32
The Society obtained over 70,000 authorizations from citizens to address to the companies the claims, in their names, for refund of the overcharges. A law office was also engaged in the project in the event actions had to be filed with the court. Vlahek (2016), p. 381.
 
33
It amounted to approx. €30–€300 per household. Ibid.
 
34
Zveza potrošnikov Slovenije (ZPS), a non-governmental organization established in 1990 whose task is to protect and represent consumer interests.
 
35
For details as to the proceedings before the competition authority and the courts, see Vlahek (2016), pp. 381–382.
 
37
Vlahek (2016), pp. 382–383.
 
39
Cesija or prenos terjatve. Arts. 417–426 CO.
 
40
For further details, see Juhart (1996).
 
42
Ibid.
 
43
For details on these models, see Draft CAA, No. EVA: 2016-2030-0007, pp. 17–53.
 
44
See Sect. 4.9.
 
45
Ambiguity of this provision is explained in Sect. 4.4.
 
46
Ambiguity of this provision is explained in Sect. 4.7.
 
47
Rec. 1 of the Recommendation reads as follows: “The purpose of this Recommendation is to facilitate access to justice, stop illegal practices and enable injured parties to obtain compensation in mass harm situations caused by violations of rights granted under Union law, while ensuring appropriate procedural safeguards to avoid abusive litigation.”
 
48
The importance of taking due account of the national legal tradition and legal order is emphasized in various EU acts on collective redress. See, e.g., the European Parliament’s resolution of February 2012 titled ‘Towards a Coherent European Approach to Collective Redress’, 2011/2089(INI); para 13 of the Commission 2013 Recommendation.
 
49
Despite that, the reports on collective redress in Europe have to date rarely mentioned the Slovenian CAA. See, e.g., the Commission’s own Report of 2018 on the implementation of the 2013 Recommendation that mentions only the drafting activities in Slovenia, albeit the CAA was enacted already in 2017. Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the implementation of the Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union law (2013/396/EU), COM/2018/040 final.
 
50
COM (2018) 184: Proposal for a Directive of the European Parliament and of the Council on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC.
 
51
See the European Parliament’s Recommendation following Dieselgate issued in April 2017, Study for the Fitness Check of EU consumer and marketing law issued in May 2017, the Commission Work Program for 2018, etc.
 
52
This contribution was submitted in September 2019, i.e. before the amendment activities took place within the Council. For further details on the contents of the directive, see Vlahek (2020) (forthcoming).
 
53
For details on the Belgian regulation, see Draft CAA, Government of RS, No. EVA: 2016-2030-0007, pp. 32–37; Voet (2015a), pp. 121–143; Voet (2015b), pp. 202–222.
 
54
The following entities reacted to the draft by submitting their written comments: The Supreme Court of RS, Labor and Social Court in Ljubljana, State Attorney’s Office, Ministry for Economic Development and Technology, Slovenian Bar, Slovenian Chamber of Commerce, Slovenian Consumers’ Association, Slovenian Health and Social Security Union, Legal-Informational Center of NGOs. In order to make the drafting process as transparent as possible, the Ministry of Justice also organized a public meeting where the draft was presented and additional exchange of views on the draft could take place.
 
55
Galič and Vlahek (2018), p. 27.
 
56
Art. 3 CAA explains in this regard that a “collective damages action” within the meaning of the CAA is not to be understood stricto sensu as purely an action requesting damages, but also as an action requesting the return of unjustified enrichment or an action requesting performance.
 
57
Pravilnik o registru kolektivnih tožb, Official Gazette of RS, No. 26/18.
 
58
Notarska tarifa, Official Gazette of RS, No. 59/19.
 
59
See Voet (2015a), pp. 121–143.
 
60
Galič and Vlahek (2018), pp. 29–30.
 
61
Para 7: “Amongst those areas where the supplementary private enforcement of rights granted under Union law in the form of collective redress is of value, are consumer protection, competition, environment protection, protection of personal data, financial services legislation and investor protection. The principles set out in this Recommendation should be applied horizontally and equally in those areas but also in any other areas where collective claims for injunctions or damages in respect of violations of the rights granted under Union law would be relevant.”
 
62
Galič and Vlahek (2018), p. 30.
 
63
Galič and Vlahek (2018), p. 31.
 
64
A set of different acts protecting consumers falls under this category, such as the CPA, the Consumer Credit Act (Zakon o potrošniških kreditih (ZPotK-2), Official Gazette of RS, No. 77/16), etc. However, only contractual relationships are covered in this category.
 
65
E.g. in the CPA. Here, however, not just contractual breaches but also violations of other consumer rights are covered (if these are regulated in the CPA, not elsewhere).
 
66
See Arts. 101 and 102 TFEU and/or Arts. 6 and 9 of the Prevention of Restriction of Competition Act (Zakon o preprečevanju omejevanja konkurence (ZPOmK-1)), Official Gazette of RS, No. 36/08, with further amendments.
 
67
See the Market in Financial Instruments Act (Zakon o trgu finančnih inštrumentov (ZTFI)), Official Gazette of RS, No. 67/07, with further amendments.
 
68
See the Labor and Social Courts Act (Zakon o delovnih in socialnih sodiščih (ZDSS-1), Official Gazette of RS, No. 2/04, with further amendments). See also Vlahek (2018), pp. 495–515. This category was added to the list later in the drafting process. It is one of the rare categories where an action can be filed against the State. In this case, special rules of the CAA on standing and on jurisdiction apply. See how these rules were applied in the first Slovenian collective action (see Sect. 5) which was an action in a labor dispute.
 
69
See the Environmental Protection Act (Zakon o varstvu okolja (ZVO-1)), Official Gazette of RS, No. 41/04, with further amendments. It is to be stressed that according to the CAA, only “environmental disasters” as defined in Art. 3 of the Environmental Protection Act, and no other forms of pollution of the environment, are covered by the CAA. This category was added to the CAA draft rather late in the drafting process after a fire in the Kemis company in May 2017 that resulted in the pollution of a nearby river, the air, etc.
 
70
See the Act on the Protection against Discrimination (Zakon o varstvu pred diskriminacijo (ZVarD)), Official Gazette of RS, No. 33/16, with further amendments.
 
71
Case number: 1257/7/7/16.
 
72
For further details on such argument, see the UK Competition Appeal Tribunal’s reasoning in the Gibson case.
 
73
Exceptionally, the single judge may ask the president of the respective high court to transfer the case to senate of three judges if the case raises complex legal or factual questions.
 
74
See Art. 14 of this act. In the first Slovenian proceedings under the CAA, which was a labor dispute (see Sect. 5), the senate of the Labor and Social Court in Ljubljana was comprised of a professional judge and two jury judges, one from the list of employers, the other from the list of employees.
 
75
Galič and Vlahek (2018), p. 34.
 
76
General rules on jurisdiction of the courts in Slovenia are presented in Pogorelčnik Vogrinc (2018), pp. 27–29.
 
77
Pogorelčnik Vogrinc (2018), pp. 27–29.
 
78
See Galič and Vlahek(2018), pp. 34–35.
 
79
Para 21 of the Preamble to the Recommendation.
 
80
See Art. 7 CAA.
 
81
Para 17 of the Preamble and point 3(a) of the Recommendation: “… a legal mechanism that ensures a possibility to claim compensation collectively by two or more natural or legal persons claiming to have been harmed in a mass harm situation”.
 
82
Point 4 of the Recommendation explains in this regard that the Member States should designate representative entities to bring representative actions on the basis of clearly defined conditions of eligibility. These conditions should include at least the following requirements: (a) the entity should have a non-profit character; (b) there should be a direct relationship between the main objectives of the entity and the rights granted under Union law that are claimed to have been violated in respect of which the action is brought; and (c) the entity should have sufficient capacity in terms of financial resources, human resources and legal expertise to represent multiple claimants and to act in their best interests. Point 5 adds that the Member States should ensure that the designated entity will lose its status if one or more of the conditions are no longer met. According to point 6, the Member States should also ensure that representative actions can only be brought by entities which have been officially designated in advance as recommended in point 4 or by entities which have been certified on an ad hoc basis by a Member State’s national authorities or courts for a particular representative action. Additional rules for cross-border cases are set out in points 17 and 18 of the Recommendation.
 
83
Point 7 of the Recommendation explains in this regard that in addition, or as an alternative to designating representative entities in accordance with points 4–6 of the Recommendation, the Member States should empower public authorities to bring representative actions.
 
84
Paras 17 and 18 of the Preamble and point 3(a) and (d) of the Recommendation.
 
85
Point 3(d) of the Recommendation.
 
86
Para 17 of the Preamble to the Recommendation.
 
88
The first Slovenian collective action (see Sect. 5) was filed by a union of the Ministry of Defense. As the action was filed against the Republic of Slovenia, it could not have been filed by a higher state attorney. One of the reasons for not limiting standing to pre-designated entities was the negative experience with collective actions under the CPA that could be filed by designated consumer organizations and other existent bodies. To our knowledge, they have not filed any such actions. Galič and Vlahek (2018), p. 31.
 
89
Galič and Vlahek (2018), p. 31.
 
90
Ibid. See how this rule was applied in the first Slovenian collective action (see Sect. 5) where the court determined without any doubt that the union of the Ministry of Defense shows representativeness as required by the CAA. In its decision, the court stated that the claimant has sufficient financial resources to finance collective proceedings and added that the defendant has not even disputed this.
 
91
Ibid.
 
92
See Art. 26 CAA and the general rules of the CPrA, presented in Pogorelčnik Vogrinc (2018), p. 30.
 
93
See Art. 27/1 CAA. If this is not established, the court rejects the action.
 
94
Art. 9 CAA. If the competition authority has initiated infringement proceedings after the collective action was filed, the court stays the collective proceedings until the administrative/judicial proceedings assessing the antitrust infringement are finalized.
 
95
See how in the first collective proceedings under the CAA (see Sect. 5) the court assessed these criteria.
 
96
According to Art. 28/3 CAA, class members and other interested parties may send the court their written opinion on certification criteria. The court may, if it so wishes, invite such persons to a hearing and enable them to present their opinion. This was also the case in the first Slovenian collective action proceedings (see Sect. 5) where the Confederation of Slovenian Unions (CSU) was granted the status of an interested party in accordance with the CAA. The CSU provided its written opinion and was present at the hearing.
 
97
In this case, the court issues a decision rejecting the collective action (sklep o zavrženju kolektivne tožbe). This was the situation in the first Slovenian collective action proceedings (see Sect. 5) where the court established that the criteria under points 1, 2 and 3 were not met (whereas those under points 4 to 7 were met or were not relevant to the case at hand).
 
98
If more than one collective action is filed before the start of the certification stage with regard to the same mass harm case, the court decides which of the actions it will approve. If individual actions were filed before a collective action was filed, the courts assessing such individual claims must stop the proceedings and wait for the outcome of the collective proceedings. See Art. 7 CAA. Art. 8 CAA lays down the rules on the effects of collective proceedings on the limitation periods.
 
99
Para 20 of the Preamble to the Recommendation.
 
100
Points 8 and 9 of the Recommendation.
 
101
See paras 35–37 of the Recommendation.
 
104
Agencija Republike Slovenije za javnopravne evidence in storitve (AJPES).
 
105
See http://​www.​sodisce.​si/​sodni_​postopki/​javne_​obravnave/​kolektivne_​tozbe/​. The first page of the web pages of the judiciary offers a link to the registry (“register KOLEKTIVNIH TOŽB”) where all collective actions/settlements cases are listed. Each of the cases then offers a link to the details of the proceedings.
 
106
Its name suggests that it covers only collective actions, but it applies also to collective settlements.
 
107
Arts. 10, 18, 27, 32, 33, 35, 37, 38, 42 CAA.
 
108
Pravilnik o registru kolektivnih tožb, Official Gazette of RS, No. 26/18.
 
109
The first entries show, however, that there is room for improvement. For example, second instance decisions are not being published in the register (only the appeal case number is stated) and have to be searched for in the general caselaw database.
 
110
This ensues also from the wording of para 17 of the Preamble on legal standing and para 3 of the Recommendation defining “collective redress”.
 
111
Galič and Vlahek (2018), p. 39; Vlahek (2017), pp. 546–554.
 
112
Art. 34/2 CAA. According to Art. 37 CAA, persons showing probability that they are class members, and other justified persons, have the right to submit written opinions and may, under the conditions set out in the CAA, take part in the hearing on the merits of the case.
 
113
Galič and Vlahek (2018), pp. 40–41.
 
114
This solution was copied from the UK CAT’s proceedings.
 
115
Art. 33 CAA. The court may deny putting a person opting in on the list only if it is obvious that he or she is not a class member. The final factual assessment of whether those put on the list (by way of opting in) or not opting out and submitting their statement that they are class members are in fact class members is made in the final stage of collective proceedings.
 
116
Such objection is delivered to the other party, the administrator and the person whose listing is being objected to.
 
117
It invites the administrator, the parties, the persons not listed and the persons whose listing was objected to. Art. 45 CAA.
 
118
Art. 39 CAA. Such award is available only if individual assessment in collective proceedings would not require long-term assessment of class members’ particularities.
 
119
The CAA’s provisions dealing with the collective judgment, its effects and further steps in collective proceedings do not always refer to a final judgement, making it somewhat difficult to understand whether specific effects of the judgment take place already when it is issued or only once it becomes final. The context and the CPrA’s rules that apply mutatis mutandis have to be taken into account in such cases.
 
120
The first Slovenian collective action proceedings (see Sect. 5) showed that the claimant had difficulties in delimiting the task of the court from that of the administrator.
 
121
The deadline for that must be set between 90 days and 6 months.
 
122
See Sect. 3.
 
123
Art. 22 CAA. The CAA is silent on how and how much such person or body is to be paid for the service (unless he or she is a notary).
 
124
Art. 58/1 CAA. See how this rule was applied in the first Slovenian collective action (see Sect. 5) where the requested damages amounted to €500,000, and the amount in dispute was thus set to €100,000.
 
125
Art. 60 CAA. See how this rule was applied in the first Slovenian collective action (see Sect. 5) where the claimant who was unsuccessful already in the certification stage had to pay the defendant the costs in the amount of €1,703.65.
 
126
See Rec. 13 of the Recommendation.
 
127
See recs. 29 and 30 of the Recommendation: “The Member States should ensure that the attorneys’ remuneration and the method by which it is calculated do not create any incentive to litigation that is unnecessary from the point of view of the interest of any of the parties. … The Member States should not permit contingency fees which risk creating such an incentive. The Member States that exceptionally allow for contingency fees should provide for appropriate national regulation of those fees in collective redress cases, taking into account in particular the right to full compensation of the members of the claimant party.”
 
128
Zakon o odvetništvu (ZOdv), Official Gazette of RS, No. 18/93, with further amendments.
 
129
U.S. Chamber Institute for Legal Reform (2019), p. 73.
 
130
Ibid.
 
131
Ibid.
 
132
For further details, see ibid., 72–74.
 
133
Arts. 26/1 and 59/1 CAA. What exactly should be disclosed apart from the identity of the funder is not clear nor whether the litigation funding agreement must be produced. Also questionable is whether the disclosure obligation could be interpreted beyond the limits of ex parte and in camera principles, since the CAA requires the funded party to make the disclosure to the court and does not mention other parties. U.S. Chamber Institute for Legal Reform (2019) p. 72.
 
134
U.S. Chamber Institute for Legal Reform (2019), p. 71 ff.
 
135
Art. 59/3 CAA. This provision obviously stems from the prohibitive language of the 2013 Commission Recommendation, para 32. Since the CAA uses the word “interest” and omits the word “remuneration”, it is unclear whether the Slovenian legislature has inadvertently structured TPLF as a loan (i.e. recourse debt instrument). The CAA has thus not copied fully rec. 32 of the 2013 Recommendation requiring the Member States to ensure that, in addition to the general principles of funding, for cases of private third-party funding of compensatory collective redress, it is prohibited to base remuneration given to or interest charged by the fund provider on the amount of the settlement reached or the compensation awarded unless that funding arrangement is regulated by a public authority to ensure the interests of the parties. U.S. Chamber Institute for Legal Reform (2019), p. 71 ff.
 
136
U.S. Chamber Institute for Legal Reform (2019), p. 71 ff.
 
137
Wet Collectieve Afwikkeling Massaschade – WCAM 2005, see https://​www.​collectiveredres​s.​org/​collective-redress/​reports/​thenetherlands/​legislation. The Belgian and British models were also analyzed. See Galič and Vlahek (2018), p. 37.
 
138
See Arts. 12 to 25 CAA.
 
139
The court may even offer the parties its assistance in redrafting their settlement if the court deems the wording of the settlement inappropriate and does not find the settlement evidently inadmissible. To this end, the court may conduct a hearing. See Arts. 13 and 14 CAA.
 
140
To this end, the court has to inform the class members according to Art. 15 CAA.
 
141
The decision dismissing the settlement may be appealed jointly by the parties. Art. 24 CAA.
 
142
The decision approving the settlement may not be appealed but can be set aside according to the rules on court settlement.
 
143
Notwithstanding this rule, a person who, at the time of the approval of the collective settlement, did not know and could not have known that the damage had occurred to him or her, may—after learning that the damage had occurred—be excluded from the collective settlement which was concluded under the opt-out system. A person who has undertaken to pay compensation under the settlement may give such injured party a period of at least six months within which to make a decision on whether he or she wishes to remain in the class or not. Art. 20/1, 2 CAA.
 
144
Zakon o alternativnem reševanju sporov (ZARSS), Official Gazette of RS, No. 97/09, with further amendments.
 
145
See Sect. 4.2.
 
146
No. 007-230/2017/4 of 16 April 2019.
 
147
Pk 1/2018.
 
148
See the data and documents available in the Collective Actions Registry (available in Slovene only): http://​www.​sodisce.​si/​sodni_​postopki/​javne_​obravnave/​kolektivne_​tozbe/​321S83201800001/​.
 
149
Pages 4–12 of the decision.
 
151
I Pk 2/2019. See the data available in the Collective Actions Registry (available in Slovene only): http://​www.​sodisce.​si/​sodni_​postopki/​javne_​obravnave/​kolektivne_​tozbe/​321S03201900002/​.
 
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Metadaten
Titel
Challenges in Drafting and Applying the New Slovenian Collective Actions Act
verfasst von
Aleš Galič
Ana Vlahek
Copyright-Jahr
2021
Buch
Class Actions in Europe

Print ISBN: 978-3-030-73035-2

Electronic ISBN: 978-3-030-73036-9

Copyright-Jahr: 2021

DOI
https://doi.org/10.1007/978-3-030-73036-9_10

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