eDiscovery & Class Actions

In the case of similar concerns, the new legal situation will in future make it easier for consumers to join forces and represent common interests against your company in court. In doing so, your company can be forced to disclose facts.

The draft of the Verbandsklagenrichtlinienumsetzungsgesetz (VRUG) aims at enabling qualified consumer associations to enforce the collective interests of consumers by means of representative actions, i.e., model declaratory actions and redress procedures, for the benefit of the consumers concerned.

The Federal Ministry of Justice plans to translate the European Directive on collective redress (Directive (EU) 2020/1828 on collective redress for the protection of the collective interests of consumers and repealing Directive 2009/22/EC) into German law. The Federal Republic of Germany was unable to meet the deadline of 25.12.2022 that was once set.

The VRUG is based on the Consumer Rights Enforcement Act (VDuG). It is planned to regulate representative actions in it. Accordingly, the law also offers the possibility of remedial actions. Collective actions for performance are thus to be possible. For the sake of understanding: in a collective action, claims are bundled that can be enforced in only one procedure.

Consumer associations and qualified entities from EU countries may bring actions. They can bring claims of the same kind against traders from a number of 50 consumers. Creditors can also be small businesses with a turnover of no more than EUR 10 million.

The subject of a representative action can be all civil disputes. This means that the German legal framework goes far beyond European consumer protection.

According to the VDuG, every body entitled to bring an action must make information on planned and ongoing representative actions publicly available. This can be done, for example, online via its own homepage. Through the VDuG, there will be more class actions in the future.

Another new feature is that the court can demand that evidence be disclosed (e.g. documents). If this is disregarded, fines of up to 250,000 euros may be due.

This obligation did not previously exist in civil proceedings. Defendant companies should therefore be particularly vigilant.

If a settlement is not reached from the outset, a so-called interlocutory judgement is issued. This means: if the claim is successful, the court will set the compensation.

According to the basic remedy judgment, a convicted entrepreneur has the obligation to pay a collective total amount. A trustee has the task of administering the collective total amount paid by the business, if any, and paying it to the entitled consumers.

The model declaratory action will be retained and integrated into the VDuG. The VDuG is to regulate all association actions in future.

The entry into force of the VRUG results in many innovations. One of the most important is that a new § 204a has been added to the BGB. This regulates the scope of the suspension of the statute of limitations of a representative action.

It is also important that in future, within the framework of Section 10 UWG, a skimming of profits under competition law will already be possible in cases of gross negligence and not only in cases of intent.