Schrems and Facebook... privacy and class action | Europe

Max Schrems is back before the Court of Justice!

After making the top European court invalidate the fifteen year old data transfer agreement  between the EU and the US , the fighter of Facebook is now back asking the CJEU to rule on whether a privacy-related legal action brought against Facebook can be treated as a class action or not.

Technically the suit is not a class action but the thousands of claims that joined Schrems were been grouped and assigned to one person who can sue on behalf of everyone else.

Scherms has noted clearly that he is using his Facebook account in a private capacity and not at all for commercial purposes.

The Austrian courts highlighted this fact.

On the other hand Facebook tried to get the case dismissed on procedural grounds, arguing that the class action is inadmissible, and that the Austrian courts have no jurisdiction in this case.

The suit has been rejected two times and then moved to the Austrian Supreme Court which has now referred two legal points to the CJEU for a ruling.

First point concerns whether a consumer loses his rights to sue in his home court if he engages in a public fight.

Second point refers to whether Austrian law allows plaintiffs to transfer their claims to another person to create a "de facto class action", to be able to file collective actions, rather than having to file thousands of individual procedures in different courts around the world.

It would be interesting at this level to provide some basic information on the class action.

A class action is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member of that group.

This kind of action is the most common where the allegations involve a large number of people who have been injured by the same defendant in the same way.

The class action originated in the United States and is still predominantly a U.S phenomenon, but several European countries have included it in recent years to allow consumer organizations to bring claims on behalf of consumers.

It is the case in Australia, New Zealand, France, Germany, Italy, The Netherlands, Spain.

We should note that the law varies from one country to another within Europe and that in some of these countries the class action is not allowed yet. It is the case for example in Switzerland and in Austria where a political consensus could not be reached in 2005.

As on European level, the Commission proposed a Directive to remove the main obstacles to effective compensation , and to guarantee minimum protection for citizens and businesses ,everywhere in the Eu.   The EU Directive 2014 /104 on antitrust damages actions entered into force on 26 December 2014.

Member states needed to implement it in their legal systems by 27 December 2016.

To reach its aims in a better way the Commission added a complementary measure , the Recommendation on collective redress , which invited Member States to introduce by 26 july 2015 collective redress mechanisms, including actions for damages.

This Recommendation confirms the application of the mentioned Directive to the collective damages actions in those Member States where they are -or will be-available.

Belgium has introduced this possibility of launching class actions through the adoption of the Belgian Act on Claims for Collective Redress of 28 March 2014.

By doing so Belgium has followed in the footsteps of the other European countries that had already taken similar measures.

Shall Austria be the next candidate? Can Scherms case bring back the subject and give it some more credits?

The Court of Justice may have its influential word in this case.

Please contact us on info@a-law.eu for more information on EU law and related questions and the implementation of same in the national legislations.