| Abstrakt: |
In the last few years European legislators have shown an increasing interest in group litigation, stimulated by the political pressure coming from consumer associations, the public at large and the European Union. The European devices, however, are very different, with a few interesting exceptions, from the internationally most famous group action model: the American class action. The European legal systems tend to restrict the power to sue to selected subjects, such as associations, they prefer the opt-in mechanisms to determine who will be bound by the judgement, and they restrict the application of the group action devices to only a few legal fields. The most common explanation for these differences refers to the pressures coming from powerful industrial lobbies worried by large classes of consumers represented by greedy lawyers, the very epitome of the so-called American "litigation culture." The purpose of this article is to focus on the resistance against the class action offered by the European legal tradition itself. The article focuses in particular on two closely-related elements: the "hierarchical" distribution of power among the various actors of the legal systems and the tendency to regulate the market ex ante. These factors favour group litigation models that are deprived of the tremendous transformative power of the American class action. The cautious European approach has a few advantages. For instance, it avoids the bitter ethical issues that quite often afflict the American class action bar. This comfort, however, comes at a price that is seldom discussed. The European legal culture prevents legislators from paying appropriate attention to important functions of civil litigation, such as deterrence. Moreover, the continental European inclinations present the seductive but false idea of a world where the law can be grasped by the common man and where democratically elected officials have full control over the rules governing the community. The contribution of the courts flies under the radar of public opinion and public debate. From a democratic perspective this is undesirable as the public should be informed about the most important policy choices and about who is in charge of making them. "Stronger" group action devices could bring to the spotlight of media attention the work of the courts and the role of civil litigation. Secondly, the improved access to justice would help many social issues which today are "hidden" to emerge, providing precious feedback to the legislator. [ABSTRACT FROM AUTHOR] |
