Class Representation: Opt-in, Opt-out, or Representative Action?

This paper aims to discuss one of the key themes underlying the recent European Commission’s public consultation on collective redress, i.e. which of the alternative class action models-opt-out, opt-in, and representative actions-would be best suited to pursue collective redress of EU law in national courts, and to what extent an EU legislative initiative is needed to ensure the efficacy of a would-be European class action and its co-existence with the laws of the Member States on collective redress already in force.

Preliminary to discussing the advantages and disadvantages of the different class action models, consensus should be established on what kind of damage claims collective redress should be addressed to, and whether or not there are cases where collective actions would do more harm than good, or simply be a useless addition to the existing litigation avenues.

The issue is not irrelevant with respect to private antitrust enforcement, a domain where the interests at stake for victims often differ sensibly; depending, for example, on victims being final consumers or undertakings.