Consumers’ Access to Justice and Procedural Rights

Introduction

Access to justice is commonly recognized as a core human right. At the same time, it is a right that has proved difficult to realize,^[1] particularly in consumer law. Consumers often have difficulties in obtaining redress in order to receive compensation, especially in a cross-border context. They face various barriers in exercising their rights, including a lack of knowledge of the legal systems and limited funding. Furthermore, a recent surge in supranational mass damages cases has indicated an urgent need for simple, cheap, and collective ways of enforcement.

As a policy response, there has been a gradual shift from a substance-focused to a more procedural-oriented perspective to consumer law. A growing number of Member States have incorporated collective redress mechanisms into their national systems as a way of dealing with the multiplication of consumer claims. Furthermore, a similar trend has begun to emerge in the EU context, where collective redress measures are currently evaluated as a tool to improve access to justice and alternative dispute resolution has gained prominence within the priorities of EU consumer policy.^[2]

Despite their merit, collective enforcement mechanisms have also raised some controversy. On the one hand, they have sometimes led to excessive compensation claims, as illustrated by US-style class actions.^[3] On the other, the first experiences in some EU Member States have shown that they may have a rather limited impact in practice. Therefore, the design and effectiveness of such mechanisms has to be carefully evaluated.

In the light of the above development a number of questions arise: what are the main obstacles to consumer access to justice? Can collective redress mechanisms improve effective redress and what alternative procedures could facilitate consumer dispute resolution?

This chapter aims to evaluate how the formal right of access to justice can be transformed into effective enforcement procedures. To do so, it first analyzes the issue of consumer access to justice as a fundamental right in the EU, comparing collective redress models and major cases in the Member States, to evaluate their cross-border implication. Secondly, it examines how the new competences in the Lisbon Treaty regarding civil procedure may facilitate consumer redress, evaluating alternative dispute resolution schemes and collective redress mechanisms. Finally, it puts forward financing models, such as a collective action fund and contingency fees, which may increase the affordability of judicial actions.

• [1] A recent study by the EU Agency for Fundamental Rights (FRA) has revealed that commonbarriers to access to justice in Member States are: long procedures, high legal costs, and restrictiverules on who may take a case to court; see the EU Agency for Fundamental Rights’ Report, Accessto Justice in Europe: An Overview of Challenges and Opportunities (2011).
• [2] See: .
• [3] See C. Hodges, The Reform of Class and Representative Actions in European Legal Systems: A NewFramework for Collective Redress in Europe (Oxford: Hart Publishing , 2008); D. Hensler, C.Hodges, & M. Tulibacka, The Globalization of Class Actions, The Annals, Special edition, vol 622(Thousand Oaks: CA, SAGE Publications, 2009).