Kocher, Eva --- "Collective Rights and Collective Goods: Enforcement as Collective Interest" [2011] ELECD 627; in Steele, Jenny; van Boom, H. Willem (eds), "Mass Justice" (Edward Elgar Publishing, 2011)

Book Title: Mass Justice

Editor(s): Steele, Jenny; van Boom, H. Willem

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849805063

Section: Chapter 6

Section Title: Collective Rights and Collective Goods: Enforcement as Collective Interest

Author(s): Kocher, Eva

Number of pages: 20

Extract:

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 internaliza-
tion of external economic effects fails where rational apathy of consum-
ers 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 collec-
tive 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 fas-
cinated 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, ...