The Effects of Judgments and Court Settlements in Cross-border Collective Redress and the Brussels I bis Regulation: Houston, We Have a Problem!

Abstract

EU Member States offer a colourful plethora of collective redress mechanisms available in different cases of mass harm. The article focuses on the recognition and enforcement of titles stemming from such proceedings in a cross-border setting, where the Brussels I bis Regulation is called into action. Namely, said Regulation is applicable, but not (yet) adapted to cross-border collective redress. Several issues need urgent attention. First, the collective redress unveils the already problematic qualification of court settlements in the Brussels I bis Regulation, or, more specifically, their treatment in the chapter on recognition and enforcement. The latter arguably does not allow the courts to look at the specific coming into existence and effects of the court settlement at hand, but automatically demands the application of the rules from the special chapter devoted to court settlements and authentic instruments. Its most notable deficiency is the lack of talk of recognition (it only provides the possibility of enforcement), but also the further restriction of the possible grounds for refusal of enforcement. When a court settlement has, under national law, the same effects as judgments, such treatment in the Brussels I bis Regulation is not justified. There is also the open question of the qualification of out-of-court settlements approved by the court: are they deemed to be dealt with as court settlements, as judgments, as neither? The second challenging issue is the binding effect of judgments and court settlements regarding individual members of the class, most notably in the so-called opt-out collective redress proceedings. If the binding effect is established, the opt-out mechanisms can still be problematic from the point of view of the regularity of service of the introductory document. Courts will have to interpret, on a case-by-case basis, the wording of Article 45 1) (b) of the Brussels I bis Regulation. If the strict conditions of that article are not met, there is still a possibility to apply the public policy defence from Article 45 1) (a), which, under the CJEU case-law, also covers the violations of fundamental procedural guarantees. The third important issue is the irreconcilability of final decisions in collective redress proceedings, where they consider the same defendant and the same (type of) harm, but different claimants. The rules of the Brussels I bis Regulation do not deal with these issues. As to the court settlements, the rules of the Regulation do not allow for a refusal of enforcement on grounds of irreconcilability, however, the situation could, in the view of the author, be tackled via the public policy exception. If the current wording of the Brussels I bis Regulation can, to a certain extent, be ‘bent’ in a way to accommodate cross-border collective redress, the author recommends tackling these issues in a new recast of the Brussels I Regulation and provides ideas for such improvements.