31 May 2022 Kathrin Bauwens  -  Mirjam Erb ProductLiabilityLinks  -  LinkingCollectiveRedress

German judges suggest improving handling of parallel mass proceedings

In the absence of an efficient collective redress system, parallel mass proceedings are still very common in Germany. These proceedings are extremely inefficient and burdensome for the courts, which is why the judiciary is now putting forward far-reaching proposals for reform in order to better manage mass proceedings.

The importance of mass proceedings in German law

Generally, German law does not allow for “US style" class actions. The introduction of the so-called "model action for a declaratory judgment" (Musterfeststellungsklage) in 2018 was a rather cautious step towards collective redress proceedings and by and large not very successful to date. With the EU Collective Redress Directive yet to be implemented, Germany currently does not have any effective collective redress mechanisms in place, meaning that claimants need to assert their claims individually.

While a business model is on the rise for the bundled assertion of individual claims that are based on the same facts and essentially raise the same legal issues (read more here), many claims continue to be asserted in parallel individual proceedings. In addition to the diesel cases, such mass proceedings occur, in particular, in banking and investment, product liability, and travel law and are expected in the area of data litigation.

Proposals

These proceedings tie up a lot of capacity in the courts and are both time-consuming and burdensome for the judges. For this reason, a working group of the German judiciary has published proposals for the better management of mass proceedings in a white paper. It includes the following measures:

Amendments to the law of civil procedure

In case of mass proceedings, the working group suggests introducing

  • a preliminary ruling procedure at the competent appellate court,
  • the possibility of a stay of individual proceedings with regard to preliminary ruling or appeal proceedings pending before the appellate court,
  • the possibility to conduct written proceedings and/or decide on the basis of a video hearing also without the consent of the parties,
  • the possibility of ordering secrecy for submitted documents without having to hold a hearing on the exclusion of the public, and
  • the possibility of a decision on fundamental questions of law by the competent appellate court irrespective of a potential withdrawal or settlement of the appellate proceedings by the parties,

as well as limiting the number of instances to one instance of fact. In addition, the working group put forward proposals for amendments to the special procedural rules relating to labour disputes.

The working group would also like to set requirements on the structure, scope and timing of the parties' submissions in line with other EU member states. Finally, they recommend an accelerated online procedure for standardised cases, possibly limited to cases with a maximum amount in dispute.

Expansion of capacities

In addition to these measures to speed up case management, the working group aims at expanding capacities. On the one hand, the staffing of the courts (both at level of judges and below) shall be increased. On the other hand, the potential of digitalisation shall be better exploited and the use of artificial intelligence shall be considered.

No explicit support for collective redress

Interestingly, the white paper does not mention collective redress mechanisms as a means of relieving the burden on the judiciary. However, the German legislator is in any case required to transpose the EU Collective Redress Directive into German law by the end of the year and thereby create new instruments that could compete with mass proceedings (read more here).

Comment

Most proposals such as the preliminary ruling procedure, the accelerated online procedure, and structuring and timing of the parties' submissions have already been discussed for some time and come as little surprise. Nevertheless, it must still be carefully examined whether principles of the rule of law or other objections (e.g. of a practical nature) are in conflict with the working group’s proposals. In any case, it remains to be seen whether and in which form the legislator will take up the proposals at all.