Out-of-court justice in the European Enforcement Landscape – 1st EU Civil Justice Seminar

On Thursday 6 May, our seminar series on ‘EU Civil Justice’ kicked off with a general introduction to the series by Xandra Kramer. The first two-hour seminar dealt with the role of out-of-court justice in the European enforcement landscape. Taking a holistic perspective, our invited speaker Fabrizio Cafaggi (Judge at the Italian Council of State, former professor at the EUI and the University of Trento) talked about the role of Article 47 EUCFR in shaping the interaction between different enforcement processes. Specifically, Cafaggi explained how Article 47 EUCFR has institutional implications for the balance between individual and collective redress and for the relationship between judicial and administrative enforcement as well as ADR. The Court of Justice of the European Union has played a key role in employing the fundamental right to an effective remedy to give shape to their complementarity. Reference points are the Court’s rulings in Cases C-73/16 - Puškár, C-317/08 - Alassini, C-75/16 - Menini and Rampanelli and C-381/14 - Sales Sinués. According to Cafaggi, the case-law shows that Article 47 generally favors choice between different processes. However, mandatory sequences that oblige to either exhaust administrative remedies or attempt ADR before accessing judicial remedies are not excluded as long as certain conditions are met. Betül Kas (post-doctoral researcher, Erasmus University Rotterdam) zoomed in on the relationship between ADR and court proceedings in collective disputes by discussing the highly contentious collective settlement in the Volkswagen litigation in Germany. Kas reconstructed the procedural and practical circumstances that lead the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband - vzbv) to settle outside the procedural scope of the German model case procedure (Musterfeststellungsklage). While this move withdrew the settlement from the safeguards installed within the procedure and any judicial oversight, it enhanced the choice of individual consumers, which could either accept Volkswagen’s settlement offer or pursue individual judicial proceedings benefitting from the suspension of the limitation period. The topic of collective settlements raises interesting questions about safeguarding Article 47 in opt-in/opt-out mechanisms and as to the degree of judicial involvement required in collective settlements. The discussion raised further interesting question of a principal nature, such as the meaning of ‘privatization’ and ‘effectiveness’ in EU civil justice.