Class actions
Class actions or similar group actions were first implemented in Poland in 2009 and in Hungary in 2016. Although, both the Czech and the Slovakian legislatures are planning to introduce similar actions for managing mass harm cases, it can be presumed the Czech legislator will enact a law earlier, assuming the business lobby will not hinder the initiative.
When comparing class-action legislation in Poland and Hungary, it should be noted that both countries follow in some respects the American class-action model, but exclusively with an opt-in possibility to join the group; both laws also contain numerous safeguard elements to prevent vexatious litigation. In Hungary we can speak about a test-case type class action, because the main plaintiff lets the court “test” his claim and joining the claim will result for the opted-in claimants in res judicata for representative facts and legal issues. From the perspective of initiators, it should be added that non-profit organisations and authorities are excluded as plaintiffs in both countries. Only consumer ombudsmen can file a suit in Poland, in which case the plaintiffs are exempt from court fees. Consumer organisations cannot claim compensation through the court, thus providing them with a very inadequate redress mechanism.
Class actions triggered heated discussions in both countries. In Poland, more than 250 group actions were filed in the last 9 years, which demonstrates the relevance of this procedure; whereas in Hungary, due to the rigid rules of the new Code of Civil Procedure, joint litigation actions have still not been initiated after filing statements of claim. Several aspects of class actions are criticised, but the most frequent are their limited scope, which shows that the mechanism could be applied even in other fields. Another problem in the Polish legislation is the classification of different claims; in Hungary, the lax regulation of the litigation contract between the group leader and other group members and also with the representing lawyer is often raised.
In conclusion, it should be added, that class actions could be an efficient mechanism for enforcing compensatory claims, and they could be very good if linked as a follow-on claim after injunction action or administrative decisions, which only state the infringement of the trader. Moreover, it would be very helpful if this measure could be brought to court by consumer organisations, or at least, if the organisation could be the group coordinator (similar to the Czech legislative draft Collective Action Act). It should also be noted that opt-in mechanisms are more suitable when the consumer has suffered a relatively high level of financial loss, but consumers tend to stay in “rational apathy” regarding small claims. As such, opt-out mechanisms for bagatelle harm cases should be available as well in future.