Collective Redress: Broadening EU Enforcement Through State Liability?

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Marson, James ; Ferris, Katy (2016)
  • Publisher: Wolters Kluwer
  • Subject: K1

This article advances an argument that private enforcement of European Union (EU) rights has largely been stunted due to a series of blocking tactics by Member States, enabled through a form of tacitic subservience of the Court of Justice of the European Union to these States. Currently, State Liability is neither an effective system of redress under tortious liability, nor a genuine enforcement mechanism in domestic law. By enabling collective redress in State Liability, we present an argument, missing explicitly in current literature, that both as a viable remedy through the (UK’s modified) tort of breach of statutory duty, and through granting effective redress through action by the EU Commission, State Liability will become the mechanism for corrective justice the Court of Justice envisaged in 1991. In 2011, the EU Commission issued a non-binding Recommendation establishing collective redress for breach of competition law. Could this be seen as positive positioning by the EU to seize the initiative for greater access to individuals of justice and justiciable solutions?
  • References (6)

    B. COLLECTIVE REDRESS - WHY NOT? (III) DETERRENCE DOES NOT WORK 78 USDAW v Ethel Austin Ltd (In Administration) [2013] UKEAT/0547/12/KN, and USDAW and Wilson v Unite the Union, WW Realisation 1 Ltd and Secretary of State for Business, Innovation & Skills [2013] UKEAT/0548/12/KN.

    79 Case C-484/04 Commission v United Kingdom [2006] IRLR 888.

    80 Compare the approaches taken in Rowstock Ltd v Jessemey [2013] ICR 807 and Onu v Akwiwu & Anor [2013] ICR 1039 and the necessity of judicial acrobatics to comply with EU law.

    81 UK Competition Law Association (2011) Response to European Commission's Consultation on Collective Redress www.competitionlawassociation.com (ukmatters: 18238974.3) April, 2.3(b).

    82 Califano v Yamasaki, 442 US 682, 701 (1979).

    83 Ortiz v Fibreboard Corp., 527 US 815, 860 (1999).

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