Findings

I. The situation in consumer collective redress / Rita Simon, June 2019

Legal regulations in the Visegrad 4 countries deliver a variety for collective redress mechanism, which can be performed either on a civil law or an administrative law path. Both the chosen enforcement path, and the frequency of the mechanism applied by the consumer organisations vary markedly, not only in the context of countries, but also over time. As a summary, we will compile here these differences based on the country reports prepared by our legal scholars and the representatives of our partner NGOs. The main findings will be confirmed also by our statistics, which we collected from the main consumer protection organizations in the Visegrad 4 countries as part of this project. According to the questionnaires completed by our partner NGOs we can distinguish between five different collective enforcement mechanisms in the practice of the Visegrad 4 countries:

We should note some other specific instrument, e.g. test-case proceedings.

The next table summarises the most common proceedings initiated by the main consumer protection organisation in each country.

From the data, we can see that injunctions are very rarely used mechanisms by our partner NGOs in all four countries. In practice, we can observe that pure injunction actions were filed only in the Czech Republic, in three cases, but even there the consumer organisation tended to use other mechanisms. The Polish consumer organization Federacja Konsumentov specialises in individual test-case proceedings; the Slovakian organisation SOS Spotřebitele tended to request compensatory relief in individual cases, as interveners in the proceedings; the Czech dTest mostly prepares requests to the competent authorities and the Hungarian FEOSZ takes up public enforcement actions, which are improved and widened injunctions with compensatory effect. In general, it can be summarised that the most favoured mechanism is submitting requests to the administrative authorities, but also other, non-classical instruments are often used, e.g. test-case proceedings.

To encapsulate our findings, the existing framework for enforcing consumer rights is not satisfactory in the Visegrad 4 countries. Due to the procedural complexity and lack of material resources of the consumer organisations, the most favoured type of actions in the Visegrad 4 countries are cheap and fast procedures, where the organisation does not have to provide sufficient evidence to establish the burden of proof. Injunctions are a very rarely used mechanism with unsatisfactory results. Compensatory relief fails to function, either already on paper because of legislative mistakes, or in practice because of the reluctance of the courts. However, without compensatory relief, which can ensure quick and efficient compensation for harmed consumers - regardless of its solution, whether in the same procedure as noting the violation or as a follow-on procedure – consumer rights cannot be enforced satisfactorily, and legislators still appear to do nothing except pay lip service to effective consumer redress.

You can find a detailed presentation of the projects's findings in the collective volume SIMON, R. – MÜLLEROVÁ, H. (eds.). Efficient Collective Redress Mechanisms in Visegrad 4 Countries: an Achievable Target? Praha: Institute of State and Law of the Czech Academy of Sciences, 2019, 280 p., ISBN 978-80-87439-39-5 (e-book); for free download click here.

II. The situation in environmental collective redress / Hana Müllerová, June 2019

The research conducted under the project "Progress in collective redress mechanisms in environmental and consumer mass harm situations" supported by the International Visegrad Fund included analysing and comparing the situation in how law instruments of the environmental collective redress are established and applied in the V4 countries. The research that covered three of the Visegrad countries (the Czech Republic, Poland and Hungary) was led by law experts and supported by practical experience from the environmental NGOs representatives. It has shown that the current situation in the environmental collective redress in the V4 countries cannot be described as satisfactory. For none of the countries it may be said that there is a working collective redress mechanism for the environmental harm cases in place. Neither the relevant EU Recommendation on common principles for injunctive and compensatory redress mechanisms nor Articles 9 (3) and 9 (4) of the Aarhus Convention have been sufficiently implemented within the region, and there seems to be no driving force “from above” that could change the situation. The procedural conditions of the access to justice in environmental matters remain to diverge. They thus establish a differing levels of protection in individual countries, with differing conditions and participation options. Similarly, in none of the countries the private enforcement of environmental law norms as enacted in legislation, may make a substantial contribution to the overall enforcement of environmental law. There is much space for improvement in both national legislation and interpretation. Some propositions in order to make the collective redress more effective will be drafted in Final Recommendations of the project.

Summary of the country reports

The country reports analyse the collective legal instruments used for the environmental protection in each country. Here, the reports are summarised:

The Czech Republic

Hungary

Poland

Concluding comparative assessment of the national analyses

The most frequent legal ways in which “some kind of” the environmental collective redress can be sought usually include the following categories (though in individual countries in a different shape):

Class action (or collective action, group proceedings etc.) enacted in a special legislation;
Joint litigation - opportunities of group proceedings of other similar forms enacted in national civil procedure laws (apart from the class action);
Preferential position of NGOs within various types of environmental proceedings and review proceedings, emerging from either specific national environmental legislation (including the environmental liability regime) or from general national laws on administrative procedure and administrative judicial procedure,
Neighbourhood disputes (also called imission disputes) based on national civil codes;
Personality rights if they cover also the right to live in a healthy environment in some form.
Special procedures (e.g. environmental injuctions, quasi actio popularis)

Drawing the supra-national context

At the moment, there is no piece of EU legislation in place that would oblige the Member States to introduce environmental collective redress mechanisms. The preparation of the Proposal Directive on access to justice in environmental matters of 2003 that planned to introduce certain elements of the environmental collective redress ended without being accepted; the Commission Recommendation on common principles for injunctive and compensatory redress mechanisms of 2013 that counted the environmental agenda among other sectors aspiring to have the collective redress principles approximated was only poorly implemented by the Member States; and the last EU legislative effort in the field of the collective redress, the Proposal for a Directive on representative actions for the protection of the collective interests of consumers that was introduced in April 2018, has limited the environmental interests to a part of consumer interests only, which made it meaningless for any effective environmental protection.

The Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters of 1998 provides the basis for certain elements of the private collective enforcement of environmental rights and duties and of the injunctive collective redress in Article 9 paragraph 3 and 4. However, these provisions have never been properly implemented at the EU level and their practical fulfilment thus lays on national implementation only. That is the reason why national laws on the environmental collective redress are not harmonised and differ greatly one from another across Europe, not excepting the Visegrad region. The differences among the procedural regimes of the Member States have led to unequal conditions of access to courts in environmental cases throughout the EU and the implementation of Article 9 of the Convention is not satisfactory in most of the State Parties. Within the Aarhus Convention control mechanism, the environmental NGOs can put pressure on Member States to enforce the rights guaranteed in the Convention by their submissions to the Aarhus Convention Compliance Committee, and they do it frequently, including communications on the non-compliance in Art. 9 (3). However, the compliance procedures before the Committee can lead to findings and recommendations only. There is no penalization or other “hard” enforcement tool that could be used against the Member States in breach of the Convention (unlike the EU infringement procedure). Therefore, achieving full implementation of all Convention provisions in all Member States seems rather a “long-distance run”.