unicredit’s reply to the european commission public...

CONFIDENTIAL – NOT FOR PUBLICATION

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Public Affairs Institutional International Relations

29 April 2011

UniCredit’s reply

to the European Commission Public Consultation “Towards a Coherent European Approach to

Collective Redress” (ID Number 03094871618-32)

UniCredit agrees with the European Commission on the need for a coherent European approach to Collective Redress.

However, we believe such approach should be based on the following main principles:

- the EU should set out general and non binding rules while there is no need for an EU legislative intervention ;

- no collective redress mechanism should be established in sectors where alternative dispute resolution mechanisms are already available, such as in the financial sector;

- no abuse of collective redress should be possible: if on one side consumer protection has to be improved by establishing an easy access to efficient collective redress mechanisms, on the other side, no artificial incentive to litigiousness has to be permitted.

- the opt-in mechanism according to which consumers which suffered an infringement of law and want to submit a claim, have to join the action which has been already promoted on that same infringement by consumer associations or other consumers.

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Q 1 What added value would the introduction of new mechanisms of collective redress (injunctive and/or compensatory) have for the enforcement of EU law? UniCredit regards important that collective redress mechanisms are introduced at national level through national legislative tools in full compliance with the principles of subsidiarity and proportionality. Thus, Unicredit disagrees with the proposal to possibly introduce a new mechanism at European level but believes the EU should intervene only by setting out general principles.


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Moreover, in UniCredit’s opinion, a better coordination between existing national systems – in the way specified further in the replies to questions n. 13 and 15- could permit a speedy solution of disputes by reducing burdens and uncertainties for operators. This would enforce EU law and would make the European market more competitive and dynamic. Q 2 Should private collective redress be independen t of, complementary to, or subsidiary to enforcement by public bodies? Is there need for coordination between private collective redress and public enforcement? If yes, how can this coordination be a chieved? In your view, are there examples in the Member States or in third countries that you consider particularly instructive for any possi ble EU initiative? UniCredit believes that private collective redress cannot in any case limit the guarantees that the public enforcement ensures to individuals for the protection of their rights. Therefore the two tools should be complementary to one another. A coordination among the two tools should be ensured at national level in compliance with the specific legal traditions and civil proceedings law of each country. Q 3 Should the EU strengthen the role of national p ublic bodies and/or private representative organisations in the enforce ment of EU law? If so, how and in which areas should this be done? No further strengthening is needed in areas such as Antitrust and Consumer protection laws, where national public bodies and private representative organizations are already given a significant role in the enforcement of EU law. Countries that have not introduced collective redress mechanisms, should strengthen the role of the private representative organizations according to the general principles that UniCredit believes the Commission should set out in this regard. Q 4 What in your opinion is required for an action at European level on collective redress (injunctive and/or compensatory) to conform with the principles of EU law, e.g. those of subsidiarity, p roportionality and effectiveness? Would your answer vary depending on the area in which action is taken? As already stated, UniCredit considers that the EU should only establish general and non binding principles, according to the EU fundamental subsidiarity and proportionality principles, with the aim to ensure an effective system of collective redress tailored on national legal traditions and systems. UniCredit agrees with the European Commission on the following principles to be applied to all forms of collective redress: (1) the need for effectiveness and efficiency of redress; (2) the importance of information and of the role of representative bodies; (3) the need to take account of collective consensual resolution as a means of alternative dispute resolution; (4) the need for strong safeguards to avoid abusive litigation.


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Moreover, UniCredit suggests that the EU makes a careful analysis of the different national systems and practices in order to eliminate those differences which constitute an actual limit for an easy access by consumers to cross-border collective redress mechanisms. Q 5 Would it be sufficient to extend the scope of t he existing EU rules on collective injunctive relief to other areas; or wou ld it be appropriate to introduce mechanisms of collective compensatory red ress at EU level? In order to respect the subsidiarity principle and in consideration of the fact that many Member States adopted collective redress mechanisms at national level, UniCredit sees no reason to extend or introduce new collective redress mechanisms at European level in banking and financial sector. UniCredit regards however important that the EU adopts general common principles which should encourage the Member States that have not adopted such mechanisms to adopt them and comply with such principles. Q 6 Would possible EU action require a legally bind ing approach or a non-binding approach (such as a set of good practic es guidance)? How do you see the respective benefits or risks of each approach? Would your answer vary depending on the area in which act ion is taken? In UniCredit’s opinion, the role of the EU in relation to consumer collective redress should only be issuing non binding general principles. As to the proposal to introduce a European collective redress, UniCredit regards time as not being ripe, since initiatives for collective redress adopted in some Member States have been introduced only recently. Moreover the introduction of a legally binding approach at EU level through a single court procedure, valid for all Member States, seems difficult given the diversity of legal systems in different Member States, based on different legal principles even at times difficult to reconcile. It is believed that the involvement of Member States in creating better systems for settlement of collective disputes could be effectively pursued through the adoption of non-binding instruments. The adoption and the use of non binding instruments, but equally authoritative (inducing Member States or directly the companies to the implementation of the objectives through an action of a moral suasion) are appreciated. The advantage of this approach is to allow each State to assess the best practices on the basis of the findings emerging from the concrete application of the institution at national level. The risk is clearly to greater uncertainty about the effective coordination at European level on this issue. Moreover UniCredit believes that best practices, in the long period, should be made of application in all those States that want to really enhance the competitiveness and effectiveness of a single market. Q 7 Do you agree that any possible EU initiative on collective redress (injunctive and/or compensatory) should comply with a set of common principles established at EU level? What should the se principles be? To which principle would you attach special significan ce?


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As said above, UniCredit believes the EU intervention in this domain has to limit itself to set general principles. In UniCredit’s opinion such principles should consist in : 1. no artificial incentives to litigiousness : UniCredit is of the opinion that if

consumer protection has to be improved by establishing an easy access to efficient collective redress mechanisms, artificial incentives to litigiousness could come into being. The bank-financial sector is exposed to even greater risks of degeneration of the use of class actions compared to other sectors, since it is easy to confuse consumers’ protection, as regards to the alleged illegal behavior of operators, with a general need of protection against possible losses caused by financial investments. That is why UniCredit observes that, based on the American experience, it is necessary to avoid a class action which is managed by lawyers with the total lack of participation by the client or the class represented in the proceedings. The assessment of the admissibility of an action has to be conducted on the basis of the probabilities of its success in court and not in relation to the total amount of the damages on which legal fees are based. Otherwise, the risk is that lawyers could distort the aims of this tool and raise possible conflict of interests issues with their clients. It is therefore necessary to avoid those mechanisms which, by supporting the interests of the lawyers, allow initiating class actions against solvent defendants claiming exorbitant damages, even if they are affected by an intrinsic weakness of the arguments that can be put forth in defense of these claims, to the detriment of cases with greater chances of success in court but which have a lower value.

2. no collective redress in case of ADR mechanisms alr eady available : when alternative dispute resolution mechanisms exist for specific sectors, such as those foreseen for banks in Italy, class action should not be allowed for companies belonging to such sectors. Such mechanisms have the unquestionable advantages of lower charges and greater efficiency while decreasing the workload of judicial bodies.

3. the “loser pays” principle , according to which who loses the dispute has to pay all the costs and fees of the relative procedure. This would be an effective safeguard to avoid abusive claims;

4. the opt-in mechanism according to which consumers who suffered an infringement of law and want to submit a claim, have to join the action which has been already promoted on that same infringement by consumer associations or other consumers;

5. representativeness of the bodies entitles to initia te a collective redress action : UniCredit is of the opinion that the right of action should be granted to consumer associations that can truly be considered representative according to criteria to be set by law (see for further details reply to question n. 22);

6. equal and non punitive damages : the compensation to be provided by traders/service providers against whom actions have been successfully brought should be at least equal to the harm caused by the incriminated conduct, but should not be excessive as to amount for instance to punitive damages. The provision for exemplary damages should be prohibited as it is not acceptable for a civil judgment to order the payment of a substantial amount of money if it is not for effective compensation.


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7. inapplicability of collective redress to SMEs: since they cannot be qualified as a "weaker party", they should not enjoy the protection which is at the basis of the discipline concerned.

8. exclusion of the grading of the attorneys’ fees : UniCredit is strongly in favour of excluding the grading of the attorneys’ fees to the entity of the compensation obtained. The possibility to establish a remuneration graded at the outcome of the dispute, might entail the risk that attorneys of consumer associations are little inclined to fix the matter by common agreement, or of their fixing conditions that are quite onerous. UniCredit regards as important to avoid those mechanisms which have the distorting effect of putting pressure on the companies to settle a case although having strong defensive arguments not only to the detriment of a thorough analysis of the merits of a collective action, but above all to the detriment of the future conduct of the companies insofar as their strategic and economic choices.

9. ne bis in idem : decisions taken on a collective action, either positive or negative, should be indisputable towards each consumer part of the class action. The outcome of the class action should be published thus precluding the proposition of further class actions on the same subject.

10. no retroactivity : any law introducing a class action should not be retroactive (damages cannot be claimed for facts that happened before the entry into force of the law).

11. reasonable length of proceedings : finally, the length of proceedings should be reasonable for the parties.

In any case, any European initiative should ensure that the companies are not subjected to further costs and charges that could affect the development of a firm’s activity due to abuses by a system that does not function properly. Indeed, in case of class actions translating into truly exponential terms, companies would be led to compromise the interests at stake to the detriment of a truly objective evaluation of the situations. Q 8 As cited above, a number of Member States have adopted initiatives in the area of collective redress. Could the experi ence gained so far by the Member States contribute to formulating a Europ ean set of principles? We agree with the Commission that a European set of principles has to be built on the basis of practices of application of collective redress mechanisms in each Member State. The problem is that initiatives for collective redress adopted in some Member States have been introduced only recently and, as pointed out by some studies carried out by the Commission, they have shown evidence of weakness. Therefore, at the moment, a full assessment of the effects of these instruments in national experiences is not available. For example, in Italy, there has been only two class action lawsuits which were however declared inadmissible by the judge. From this limited experience, one could draw only a positive assessment of the principles of opt-in and preventive evaluation by the judge (as described in the reply to question n. 7).


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Q 9 Are there specific features of any possible EU initiative that, in your opinion, are necessary to ensure effective access t o justice while taking due account of the EU legal tradition and the legal orders of the 27 Member States? Please refer to answer n. 7 Q 10 Are you aware of specific good practices in th e area of collective redress in one or more Member States that could ser ve as inspiration from which the EU/other Member States could learn? Please explain why you consider these practices as particular valuable . Are there on the other hand national practices that have posed probl ems and how have/could these problems be overcome? As said above, the initiatives for collective redress adopted in some Member States have been introduced only recently. In any case, even if a complete assessment of what these tools have changed in national experiences is still not possible, the application of collective redress mechanisms in national Member States is the basis which a European collective redress initiative has to look at. For example, the introduction of a class action lawsuit into the Italian legal system is expected to drastically reduce the number of serial litigations between firms (especially Banks and Insurances) and consumers. However, at the moment it’s too early to see the effects of this reform and, consequently, it is not possible to put in evidence any good practice. Moreover, UniCredit supports the adoption of well-functioning out-of-court settlement systems, which could ensure an easy access to justice and a fast solution to disputes while significantly reducing costs and uncertainties for operators. Q 11 In your view, what would be the defining featu res of an efficient and effective system of collective redress? Are there s pecific features that need to be present if the collective redress mechan ism would be open for SMEs? As said above, UniCredit firmly asserts that no collective redress mechanisms should be applicable to SMEs: since they cannot be qualified as a "weaker party", they should not enjoy the protection granted by these mechanisms. Q 12 How can effective redress be obtained, while a voiding lengthy and costly litigation? In UniCredit’s view the principles which ensure an effective and efficient system of collective redress 1are: 1. the inapplicability of collective redress mechanisms to SMEs; 2. the exclusion of this remedy in areas - such as banking and finance

sectors- where ADR mechanisms are available; 3. the “opt-in” principle;

1For a further description of some of these principles please refer to our reply to question n. 7.


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4. adequate standards of protection such as the actual representativeness of the bodies entitled to act in the interests of consumers;

5. the preventive evaluation by the judge of the admissibility of the claim (e.g. the claim is declared inadmissible when it is evidently unfounded, when there is a conflict of interests, and when the judge does not recognize a collective interest);

6. adequate advertising tools of the start of the collective action ; 7. no artificial incentives to litigiousness; 8. the exclusion of the grading of the attorneys’ fees; 9. deadlines for instructing the process and the promulgation of the decision, 10. no retroactivity of the laws introducing collective redress mechanisms; 11. the guarantee of an equal and non punitive compensation. The publication of the start of a class action should preclude the proposal of further class actions on the same grounds against the defendant Each subsequent action proposed by the same individuals for the same circumstances should be declared inadmissible and suspended until the initial judgment is passed or, alternatively, that all class actions converge into a single lawsuit through the mechanism for the grouping of proceedings according to the object of the claim (“petitum”). Delicate problems arose concerning the possibility to appeal against a judgment (both a condemnation or rejection of the action). Taking into consideration the peculiarity of the class action, only final judgments should be enforceable. Otherwise the risk might be run of having to pay damages to individuals as a result of a non-final judgment which recognizes damages (e.g. at the end of the first degree), which might subsequently be revised or repealed (at that point, it might not be easy at all for defendants to recover what has been paid ). The outcome of the action should thus be published precluding the proposition of further class actions on the same subject. Q 13 How, when and by whom should victims of EU law infringements be informed about the possibilities to bring a collect ive (injunctive and/or compensatory) claim or to join an existing lawsuit? What would be the most efficient means to make sure that a maximum of victims are informed, in particular when victims are domiciled in several Member States? UniCredit is of the opinion that it should be the promoter of the action – which could likewise be a private organization or a public body depending on the national law – to identify the class of the injured parties affected by the infringement (which should subsequently be certified by the judge). It will equally be the promoter’s task to make the action known to the public and receive the requests of the consumers to take part in the action (the so-called opt-in method, through which the consumer should expressly declare his/her wish to participate in the collective action). The costs for the identification of the consumers belonging to the class and their involvement should be borne by who is promoting the action. The advertising of the collective redress action as well as the possibility to join should in any case be limited in time. In addition to the above, adequate mechanisms and trans-national advertising (primarily internet) should be improved, in particular by extending the role of


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already existing network of European Consumer Centres (ECC) and FIN-NET to cover also judicial collective redress mechanisms. Q 14 How could the efficient representation of vict ims be best achieved, in particular in cross-border situations? How could cooperation between different representative entities be facilitated, i n particular in cross-border cases? UniCredit regards as important that the national laws ensure the actual representation and the effective expertise of the consumer associations which are entitled to bring consumer collective redress, through the setting out of specific requirements on the basis of EU general principles and subsequent control of the compliance by them with such requirements. Cooperation at European level should be facilitated through the networks we have mentioned in the previous answer (please, read also the following answer). Q 15 Apart from a judicial mechanism, which other i ncentives would be necessary to promote recourse to ADR in situations of multiple claims? UniCredit fully supports the establishment of ADR mechanisms by all Member States. UniCredit considers that consumers and traders should be persuaded to use ADR for individual or multiple claims and to comply with ADR decisions by highlighting the high expertise, technical competence, integrity and impartiality of the deciding body as well as the advantages in terms of cost and time savings. Another incentive could be the provision of the relevant information about ADR by companies and industry (via brochures, websites, contractual general terms, conditions or other documentation which is delivered to or has to be signed by customers). In this context, UniCredit regards the use of the network of European Consumer Centers (ECC), specialized in consumer assistance for cross border and out-of-court actions, and if the dispute is about financial services, the use of the network FIN-NET as a very important incentive to promote recourse to ADR. The cross-border networks of out of court disputes between States, as FIN-NET, are able to provide an easy and effective interchange of information between the European systems, and to alternative dispute resolution systems in the various Member States. For this reason, further promotion of FIN-NET and an encouragement to the establishment of ADR systems in those States where they are not present should be pursued. Q 16 Should an attempt to resolve a dispute via col lective consensual dispute resolution be a mandatory step in connectio n with a collective court case for compensation? As said in UniCredit’s reply to the European Commission’s Consultation on the use of Alternative Dispute Resolution as a means to resolve disputes related to commercial transactions and practices in the European Union, if an attempt to resolve a dispute via individual or collective ADR was a mandatory first step before going to court, it would surely be a big step in discharging the Courts from disputes. However, consumers should be allowed to go to Court without


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a previous attempt to resolve a dispute via ADR. ADR system should be fully alternative to the public judicial system and a mandatory first step in ADR schemes before going to the Court would turn out to be a sort of limitation for consumers. The Italian legislation has introduced in March 2011 the obligation to resort to mediation before bringing legal action regarding certain matters (e.g. disputes concerning banking, financial and insurance contracts). Since the recent entry into force, we are not able to assess, in practice, its effects. Q 17 How can the fairness of the outcome of a colle ctive consensual dispute resolution best be guaranteed? Should the c ourts exercise such fairness control? In UniCredit’s view, the fairness of the outcome of a collective consensual dispute resolution should never be questioned, since the fairness is rooted in the agreement of the parties who have decided to solve their dispute through an alternative dispute resolution scheme provided it is based on the above mentioned principles. A consumer can decide to resort before a court when he/she believes that his/her own rights have been infringed. However, since in this case the court would initiate a new proceeding, it would not have the right to examine the fairness of the outcome of the collective consensual dispute resolution procedure. In conclusion, collective consensual dispute resolution should remain distinct from and independent of ordinary judicial remedies. Q 18 Should it be possible to make the outcome of a collective consensual dispute resolution binding on the partic ipating parties also in cases which are currently not covered by Directi ve 2008/52/EC on certain aspects of mediation in civil and commercia l matters? Unicredit regards as not clear the scope and ratio of this question. If the aim of the Commission is to extend the scope of Directive 2008/52/EC to consumer protection, UniCredit does not consider it necessary since consumers are already protected by this Directive. If this is not the intent of the Commission, UniCredit regards as necessary to clarify the question. Q 19 Are there any other issues with regard to coll ective consensual dispute resolution that need to be ensured for effe ctive access to justice? In order to ensure an effective access to justice, ADR should respect the following minimum conditions: 1. submission of the case to ordinary Courts shall always be possible; 2. criteria for the appointment and the composition of the mediation/judging

body should be fixed by law (as well as requirements on expertise and integrity that ensure technical competence and impartiality);

3. access to ADR should be inhibited when disputes have already been submitted to a Court or to another ADR procedure;

4. confidentiality should be ensured during the ADR procedure (e.g. by denying the use of information and documentation acquired in the course


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of the ADR proceedings in any other judicial proceedings regarding or connected to the case concerned).

Q 20 How could the legitimate interests of all part ies adequately be safeguarded in (injunctive and/or compensatory) col lective redress actions? Which safeguards existing in Member States or in third countries do you consider as particularly successfu l in limiting abusive litigation? 1. In UniCredit’s view an adequate protection of the legitimate interests of all

parties in class actions would be ensured only by collective redress mechanisms complying with the principles stated in the answers 7, 11 and 12.

Q 21 Should the "loser pays" principle apply to (in junctive and/or compensatory) collective actions in the EU? Are the re circumstances which in your view would justify exceptions to this principle? If so, should those exceptions rigorously be circumscribed by law or should they be left to case-by-case assessment by the cour ts, possibly within the framework of a general legal provision? UniCredit supports the need to introduce the “loser pays” principle as an effective safeguard to avoid abusive claims, according to the existing national judicial redress systems. Q. 22 Who should be allowed to bring a collective r edress action? Should the right to bring a collective redress acti on be reserved for certain entities? If so, what are the criteria to b e fulfilled by such entities? Please mention if your reply varies depen ding on the kind of collective redress mechanism and on the kind of vic tims (e.g. consumers or SMEs). UniCredit deems that the collective action should be pursued only when there are legal and factual issues common to several parties, there exists the possibility of objectively identifying the group of the consumers concerned and there are circumstances that render the collective action the most suitable instrument for ensuring an efficient, fair treatment of the suit, having taken the number of parties and intricacy of the procedure into account. Moreover, UniCredit suggests to introduce a mechanism providing for the possibility of proceeding jointly with a series of claims only upon the granting of a provision by the judge aimed at verifying the existence of the above specified given prerequisites. The right of initiating a class action should be foreseen only for consumers and not for professionals and/or companies, including SMEs. UniCredit is of the opinion that the right of action should be granted only to those consumer associations that can truly be considered representative. The criteria for the true representativeness of associations legitimized to start the action shall be set by law. In any case, legal certainty would not be guaranteed if the associations entitled to initiate a class action were defined too broadly.


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The acceptability of a class action should be extended even against alleged illegal conduct of a public administration. Q 23 What role should be given to the judge in coll ective redress proceedings? Where representative entities are enti tled to bring a claim, should these entities be recognized as representati ve entities by a competent government body or should this issue be l eft to a case-by-case assessment by the courts? UniCredit regards as essential a preliminary examination by the judge of the admissibility of the collective action, extended to include a first valuation of the merits of the case (fumus boni juris). With regard to the admissibility, the judge should verify the existence of legal and factual issues common to several parties, as well as the possibility of objectively identifying the group of the consumers concerned, and the existence of circumstances that make the collective action the most suitable instrument for ensuring an efficient, fair treatment of the suit, having taken the number of parties and intricacy of the procedure into account. The identification of the members of the class by a judge - with the possibility given to interested individuals to opt in the class action within a certain time period - would allow companies to be aware of the size and identity of the claim. As said in answer n. 22 the consumer association entitled to bring a collective redress action should be recognized as representative by the competent public body on the basis of criteria set by law. Q 24 Which other safeguards should be incorporated in any possible European initiative on collective redress? According to UniCredit, it would be useful to introduce sanctions to be charged to the entities promoting unmeritorious class actions or proposing again a class action already rejected. Furthermore UniCredit suggests to oblige the claimants to pay a security deposit for legal costs before the process starts. In addition, systems which compensate for abusive actions should also be envisaged in order to prevent that collective actions are used in an irresponsible way. Q 25 How could funding for collective redress actio ns (injunctive and/or compensatory) be arranged in an appropriate manner, in particular in view of the need to avoid abusive litigation? According to UniCredit’s point of view, no public funding for collective redress actions has to be provided in order to avoid abusive litigation. Q 26 Are non-public solutions of financing (such as third party funding or legal costs insurance) conceivable which would e nsure the right balance between guaranteeing access to justice and avoiding any abuse of procedure?


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In UniCredit’s opinion there is no need to promote public funding for collective redress purposes at the European level given that consumer associations are normally able to get funds for their activities, Q 27 Should representative entities bringing collec tive redress actions be able to recover the costs of proceedings, includ ing their administrative costs, from the losing party? Altern atively, are there other means to cover the costs of representative entities ? UniCredit regards as fair and sufficient the application of the “loser pays” principle. Q 28 Are there any further issues regarding funding of collective redress that should be considered to ensure effective acces s to justice? No further issues for UniCredit. Q 29 Are there to your knowledge examples of specif ic cross-border problems in the practical application of the jurisd iction, recognition or enforcement of judgements? What consequences did th ese problems have and what counter-strategies were ultimately fo und? The existing EU law seems to address sufficiently the problems related to the practical application of the jurisdiction, recognition or enforcement of foreign judgments. Q 30 Are special rules on jurisdiction, recognition , enforcement of judgments and /or applicable law required with rega rd to collective redress to ensure effective enforcement of EU law a cross the EU? No.


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Contact people Marco Tagliaferri, Head of Global CIB Legal, UniCredit: [email protected] Costanza Bufalini, Head of Institutional Relations with the European Union, UniCredit: [email protected] Mario Di Ciommo, Institutional Relations with the European Union, UniCredit: [email protected] Main contributors Francesco Palazzolo, Head of Italy Litigation, UniCredit Cinzia Caracciolo, Head of Legal Italy Staff, UniCredit Stefania Camelo, Legal Italy Staff, UniCredit Johann Becher, Legal, Corporate Affairs & Documentation, HypoVereinsbank, UniCredit Bank AG Matjaž Hafner, Legal & Compliance and Executions, UniCredit Banka Slovenija Peter Biesenbender, Rechtsabteilung, Bank Austria Dora Tajthy, Legal and Compliance Department, UniCredit Bank Hungary Zrt. Ivana Burešová , Director of the Legal Department, UniCredit Bank Czech Republic Roman Melis, Legal and Compliance Division, UniCredit Bank Slovakia Tomasz Nowacki, Dyrector Zarzadzajacy, Department Prawny, Bank Pekao SA, acting on behalf of Executive Director Elzbieta Krakowiak Anousheh Alamir, Institutional Relations with the European Union, UniCredit

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