Model declaratory action

This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

The model declaratory action (also known as model declaratory action ) is a civil law collective action that was introduced into German law with the law introducing a civil procedural model declaratory action with effect from November 1, 2018 .

Insofar as the Introductory Act is motivated by European legal acts, in particular the recommendation of the Commission of June 11, 2013 Common principles for collective injunctive relief and compensation proceedings in the Member States in the event of violation of rights guaranteed by Union law (2013/396 / EU) and the report of the Commission on the implementation of this recommendation, it is part of a comprehensive realignment of European consumer protection , the so-called "New Deal for Consumers".

Demarcation

The model declaratory action is to be distinguished from the class action, which is particularly widespread in the USA . Because a mere group concern is largely unknown to the legal systems of the European Union. For example, German law generally presupposes the violation of one's own subjective rights in order to initiate legal action and the admissibility of an action (principle of individual legal protection ).

According to the planned directive on a European representative action, qualified institutions should not be able to obtain certain determinations, but rather provisional or final payments in order to prevent and prohibit EU-illegal practices of an entrepreneur as well as measures that prevent the continuing effects of the infringement, i.e. in particular injunctions , but also remedial orders. The justification for the draft law was based on 450 model declaratory actions annually.

Background and purpose

The reason for the introduction of the model declaratory action is a large number of similarly injured consumers from the diesel scandal of 2015. In this context, according to Consumer Protection Minister Katarina Barley, the new law is intended to offer injured consumers the opportunity to enforce their claims against Volkswagen AG without great (financial) expense . Here, the introduction of the law is deliberately selected from 1 November 2018 because the claims of the injured consumers under the three-year rule statute of limitations would (three years from the beginning of the following year after the announcement) shall expire on January 1 of 2019. In September 2018, the Federation of German Consumer Organizations and the ADAC announced that they would jointly file a model declaratory action against Volkswagen on November 1, 2018.

One of the aims of the law is to strengthen the rights of individual consumers vis-à-vis large corporations. Such protection as is possible in the United States through class action does not yet exist for consumers in Germany. Rather, there is a “rational disinterest”, if not a fear, on the part of injured consumers, especially in the case of lower claims for damages or reimbursement, of asserting them at great expense. The model declaratory action is intended to counteract this imbalance.

Procedure

The exclusive first instance jurisdiction lies with the higher regional courts , after the regional court jurisdiction was provided in the legislative procedure. The federal states reserve the right to concentrate jurisdiction in individual higher regional courts. The responsibility in North Rhine-Westphalia lies with the OLG Hamm .

With the model declaratory action , according to Section 606 (1) ZPO new version, qualified institutions can request the determination of the existence or non-existence of factual and legal requirements for the existence or non-existence of claims or legal relationships (assessment objectives) between consumers and an entrepreneur . Qualified institutions are in particular the bodies specified in Section 4 UKlaG . However, the individual consumers themselves have to bring the legal dispute to an end, in particular enforce damages in a certain amount, if a settlement cannot be reached after the determination . In this respect, the model declaratory action is linked to model proceedings under the Capital Investor Model Procedure Act , with which certain aspects of capital market disputes can be clarified in advance since 2005.

In order to file a lawsuit with a competent higher regional court , a group of at least ten injured consumers is required. The court can then admit or dismiss the action. Affected consumers then enter their names into a complaint register without financial expense, which is set up by the Federal Office of Justice in accordance with Section 609 (1) ZPO and Section 1 of the Model Determination Action Register Ordinance (MFKRegV) . For this, at least 50 victims are required within two months. Such an entry has the effect of preventing the statute of limitations for the individual consumer ( Section 204 (1) No. 1a BGB ). There is no litigation cost risk for him. Should the court decide in favor of the plaintiff associations, each consumer entered in the complaint register must then, as a rule, enforce his claims for damages in court. For consumers not entered in the complaint register, a model declaratory judgment also has no effect. With a judgment in a model declaratory action, the court only decides whether there are facts that entitle the consumer to the payment of damages by the defendant. In the case of the VW emissions scandal, this is due, among other things, to the fact that the consumers' vehicles in question must be individually differentiated according to model, type approval, age, etc.

Associations with legal standing

It is not possible to reliably say which associations are entitled to bring legal action and are therefore permitted to bring a model declaratory action, as not all relevant information is publicly available. The respective association must prove the prerequisites for legal standing with the lawsuit.

One of the prerequisites is the entry in the list of qualified institutions according to § 4 Paragraph 2 UKlaG or the directory of the European Commission according to Article 4 of Directive 2009/22 / EC (see. § 606 Paragraph 1 Sentence 2 No. 2 ZPO) . This entry must have existed for at least four years. In addition, special requirements for the membership structure must be met - it is necessary that the association has at least 350 natural persons or more than ten associations that are active in the same area of ​​responsibility as members (cf. § 606 Paragraph 1 Sentence 2 No. 1 ZPO). Furthermore, in fulfilling its statutory duties, the association has to safeguard consumer interests largely through non-commercial educational or advisory activities. After all, the association may not draw more than 5 percent of its financial resources through donations from companies.

For consumer advice centers and other consumer associations that are mainly funded with public funds, it is irrefutably presumed that they meet the prerequisites for legal standing (cf. Section 606 (1) sentence 4 ZPO).

The following 78 institutions are entered in the list of qualified institutions according to Section 4 (2) UKlaG and thus meet at least one requirement that must be met for the model declaratory action:

Serial No.	Name of the qualified institution (Section 4 (2) UKlaG)	Purpose of the articles of association according to § 4 paragraph 2 UKlaG	Register court
1	Aktion Bildungsinformation e. V. (ABI)	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of the statutes).	District Court Stuttgart
2	General German Automobile Club e. V. (ADAC)	Protection and promotion of the interests of the motor vehicle industry; Protection of road users, in particular consumer protection; authorized to bring collective actions in the interests of consumers (cf. § 2 of the statutes).	District Court of Munich
3	Bauherren-Schutzbund e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of the statutes).	District Court of Charlottenburg
4th	Berliner Mieterverein e. V.	Protects tenants' interests in Berlin by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District Court of Charlottenburg
5	Affordable energy e. V.	Protects the interests of consumers by providing information and advice in the field of energy supply (cf. § 2 of the statutes); authorized to bring representative actions in the interests of consumers.	District Court of Oldenburg
6th	Federation of Energy Consumers e. V.	Protects the interests of energy consumers by providing information and advice; authorized to bring collective actions in the interests of energy consumers (cf. § 2 of the statutes).	Bonn District Court
7th	Association of the Insured e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 sentence 1 of the statutes).	District Court of Kiel
8th	Federal interest group for the elderly and people affected by care (BIVA) e. V.	Protects the interests of the elderly and those affected by care by providing information and advice (cf. § 2 of the statutes); authorized to bring representative actions in the interests of consumers.	Bonn District Court
9	Association for the Environment and Nature Conservation Germany e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of the statutes).	District Court of Charlottenburg
10	Federal association self-help physically disabled e. V.	Education and advice for the members of the association and other affected persons and their families in all relevant areas, namely from the point of view of consumer protection including consumer protection issues in connection with protection against discrimination, if and to the extent that this is legally permissible; to conduct representative actions in the interest of the above Persons (cf. § 2 number 3 letter p of the statutes).	District Court Stuttgart
11	Deutsche Schutzvereinigung Auslandsimmobilien e. V.	Protects the interests of private house, apartment and landowners who own land abroad and other people interested in real estate abroad by providing information and advice; to conduct representative actions in the interest of the above Group of persons (cf. § 2 of the statutes).	District court Freiburg im Breisgau
12	German Foundation for Patient Protection Förderverein e. V.	Protects consumers' interests by providing information and advice on patient protection issues; authorized to bring collective actions in the interests of consumers (cf. § 2 of the statutes).	Dortmund District Court
13	Deutsche Umwelthilfe e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 1 of the statutes).	Hanover District Court
14th	Deutscher Konsumentenbund e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 Section I Paragraph 1, 2 of the Articles of Association).	Darmstadt District Court
15th	German Tenants' Association (DMB) - Landesverband Bayern e. V.	Protects the interests of consumers in Bavaria in the field of tenancy law by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District Court of Munich
16	German Tenants' Association - Landesverband Hessen e. V.	Protects tenants' interests in Hessen by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. §§ 2 and 5 of the articles of association).	Wiesbaden District Court
17th	German Tenants' Association - Landesverband Mecklenburg-Vorpommern e. V.	Protects the interests of consumers in Mecklenburg-Western Pomerania in the field of tenancy law by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of the statutes).	Rostock District Court
18th	German Tenants 'Association - tenants' association Bochum, Hattingen and surroundings e. V.	Protects tenants' interests in Bochum, Hattingen and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District court Bochum
19th	German Tenants' Association V.	Uniform perception, promotion and representation of the tenants' interests; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District Court of Charlottenburg
20th	German Tenants' Association Hanover V.	Protects the interests of tenants and leaseholders in Hanover and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	Hanover District Court
21st	German Tenants' Association Kieler Mieterverein e. V.	Protects the interests of consumers in Kiel in the field of tenancy law by providing information and advice; entitled to bring collective actions in the interests of consumers (see § 1 paragraph 2 of the Articles of Association).	District Court of Kiel
22nd	German Tenants' Association, Schleswig-Holstein State Association V.	Protects the interests of consumers in Schleswig-Holstein in the field of tenancy law by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of the statutes).	District Court of Kiel
23	German Tenants Association Tenants Association Schwerin and Surroundings e. V.	Protects tenants' interests in Schwerin and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	Schwerin District Court
24	German Tenants 'Association Renters' Association Bremen e. V.	Protects the interests of tenants in Bremen and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	Bremen District Court
25th	German Tenants 'Association Tenants' Association Hamm und Umgebung e. V.	Protects tenants' interests in Hamm and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District court Hamm
26th	German Tenants' Association Tenant Association Iserlohn and Surroundings e. V.	Protects tenants' interests in Iserlohn and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District court Iserlohn
27	German Tenants' Association Tenant Association Leverkusen e. V. for Leverkusen and the surrounding area	Protects tenants' interests in Leverkusen by providing information and advice; authorized to bring collective actions (cf. § 2 of the statutes).	Cologne District Court
28	Deutscher Mieterbund Siegerland und Umgebung e. V.	Protects tenants' interests in the Siegerland and the surrounding area by providing information and advice; to conduct representative actions in The tenant's interest is justified (cf. § 2 of the Articles of Association).	District Court Siegen
29	German Tenants 'Association, Tenants' Association Baden-Baden und Umgebung e. V.	Protects the interests of tenants in Baden-Baden and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 1 number 2 of the articles of association).	Baden-Baden District Court
30th	German Tenants 'Association, Tenants' Association Velbert und Umgebung e. V.	Protects tenants' interests in Velbert and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District Court Wuppertal
31	German Consumer Protection Association e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 3 of the statutes).	Potsdam District Court
32	DMB - Mieterverein Stuttgart und Umgebung e. V.	Protects tenants' interests in Stuttgart and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 1 paragraph 2 of the articles of association).	District Court Stuttgart
33	DMB German Tenants' Association Dortmund, tenants u. Tenant e. V., tenant protection association	Protects the interests of tenants and tenants in Dortmund by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	Dortmund District Court
34	DMB Mieterbund Nordhessen e. V.	Protects tenants' interests in North Hesse by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. §§ 2 and 3 of the articles of association).	Kassel District Court
35	DMB Tenant Protection Association Frankfurt am Main e. V.	Protects the interests of tenants in Frankfurt am Main by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District Court Frankfurt am Main
36	Fachverband Glücksspielsucht e. V.	Protects consumers' interests by providing information and advice in the field of gambling addiction; authorized to bring collective actions in the interests of consumers (cf. § 2 Paragraph 1 of the Articles of Association).	Bielefeld District Court
37	Foodwatch e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of the statutes).	District Court of Charlottenburg
38	Miet- und Lachtverein e. V. Bad Kreuznach	Protects tenants' interests in the area of ​​the Bad Kreuznach district court and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	Bad Kreuznach District Court
39	Tenants help tenants , Hamburger Mieterverein e. V.	Protects the interests of tenants in Hamburg by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	Hamburg District Court
40	Tenants help tenants, Münchner Mieterverein e. V.	Protects the interests of tenants in Munich by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District Court of Munich
41	Tenants' Association Rhein-Ruhr e. V.	Protects tenants' interests in Duisburg by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District court Duisburg
42	Tenants' Association Wiesbaden and Surroundings e. V.	Protects tenants' interests in Wiesbaden and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	Wiesbaden District Court
43	Tenant Protection Association Upper Lusatia / Lower Silesia e. V.	Protects the rights and interests of tenants in the Upper Lusatia / Lower Silesia area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District Court Dresden
44	Tenants' Association Düsseldorf e. V.	Protects tenants' interests in Düsseldorf and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District Court Dusseldorf
45	Tenants' Association Flensburg e. V.	Protects tenants' interests in Flensburg by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 1 paragraph 3 of the articles of association).	District court Flensburg
46	Tenants' association for the administrative district of Trier e. V.	Protects tenants' interests in the Trier administrative district by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	Wittlich District Court
47	Tenants' Association Gelsenkirchen e. V. in the German Tenants' Association	Protects the interests of tenants and tenants by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District court Gelsenkirchen
48	Mieterverein Heidelberg und Umgebung e. V.	Protects the interests of tenants in Heidelberg and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District Court of Heidelberg
49	Tenants' Association Ingolstadt und Umgebung e. V.	Protects tenants' interests in Ingolstadt and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	Ingolstadt District Court
50	Tenants' Association Karlsruhe e. V.	Protects interests in renting, leasing and housing matters in Karlsruhe city and district by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	Karlsruhe District Court
51	Tenants' Association Cologne e. V.	Protects the interests of apartment tenants in Cologne by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	Cologne District Court
52	Tenants' Association Munich e. V.	Protects interests in rental, lease and housing matters in Munich by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District Court of Munich
53	Tenants' Association VIADRINA Frankfurt (Oder) and Surroundings e. V.	Protects the interests of tenants in Frankfurt (Oder) and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	District Court Frankfurt (Oder)
54	Tenants' association in Hamburg from 1890 r. V.	Protects tenants' interests in Greater Hamburg and the surrounding area by providing information and advice; authorized to bring collective actions in the interests of the tenants (cf. § 2 of the statutes).	Justice authority of the Free and Hanseatic City of Hamburg
55	PRO BAHN District Association Upper Bavaria e. V.	Protects the interests of consumers by providing information and advice on matters relating to public transport; authorized to bring collective actions in the interests of consumers (cf. § 2 of the statutes).	District Court of Munich
56	Pro Rauchfrei e. V.	Protects consumers' interests by providing information and advice in connection with the consumption of tobacco products; authorized to bring collective actions in the interests of consumers (cf. § 2 of the statutes).	District Court of Munich
57	Protection Association for Bank Customers e. V.	Protects consumers' interests by providing information and advice on financial services matters; authorized to bring collective actions in the interests of consumers (cf. §§ 3 and 4 of the articles of association).	Nuremberg District Court
58	Protection Association for Investors e. V.	Protects consumers' interests by providing information and advice on investor protection; authorized to bring collective actions in the interests of consumers (cf. § 2 number 1 of the statutes).	Bremen District Court
59	Association of Private builders e. V.	Protects consumers' interests by providing information and advice in the field of private construction; authorized to bring collective actions in the interests of consumers (cf. § 2 Paragraph 1 of the Articles of Association).	District Court of Charlottenburg
60	Consumer protection association against unfair competition e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 Paragraph 1 of the Articles of Association).	District Court of Munich
61	Consumer Service Bavaria in the Catholic German Women's Association V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 1 No. 2 and § 2 of the Articles of Association).	District Court of Munich
62	Consumer advice center Baden-Württemberg e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of the statutes).	District Court Stuttgart
63	Consumer Center Bavaria e. V.	Protects consumers' interests by providing information and advice; to conduct representative actions in the interests of Consumers entitled (cf. § 2 of the Articles of Association).	District Court of Munich
64	Consumer Center Berlin e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of the statutes).	District Court of Charlottenburg
65	Consumer center Brandenburg e. V.	Protects consumers' interests by providing information and advice; to conduct representative actions in the interests of Consumers entitled (cf. § 2 of the Articles of Association).	Potsdam District Court
66	Consumer center Bremen e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 3 Paragraph 2 of the Articles of Association).	Bremen District Court
67	German Consumer Association V. (VZBV)	Protects consumers' interests by providing information and advice; to conduct representative actions in the interests of Consumers entitled (cf. § 2 of the Articles of Association).	District Court of Charlottenburg
68	Saarland Consumer Center V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of Statute).	Saarbrücken District Court
69	Consumer center Hamburg e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of Statute).	Hamburg District Court
70	Consumer center Hessen e. V.	Protects consumers' interests by providing information and advice; to conduct representative actions in the interests of Consumers entitled (cf. § 2 of the Articles of Association).	District Court Frankfurt am Main
71	Mecklenburg-Western Pomerania Consumer Center V.	Protects the interests of consumers in Mecklenburg-Western Pomerania by providing information and advice; to conduct representative actions in the interests of Consumers entitled (cf. § 2 of the Articles of Association).	Rostock District Court
72	Consumer Center Lower Saxony e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of the statutes).	Hanover District Court
73	Consumer Center North Rhine-Westphalia e. V.	Protects consumers' interests by providing information and advice; to conduct representative actions in the interests of Consumers entitled (cf. § 2 of the Articles of Association).	District Court Dusseldorf
74	Rhineland-Palatinate Consumer Center V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of Statute).	Mainz District Court
75	Consumer Center Saxony e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of Statute).	Leipzig District Court
76	Consumer Center Saxony-Anhalt e. V.	Protects consumers' interests by providing information and advice; to conduct representative actions in the interests of Consumers entitled (cf. § 2 of the Articles of Association).	District court of Stendal
77	Consumer advice center Schleswig-Holstein e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of Statute).	District Court of Kiel
78	Consumer Center Thuringia e. V.	Protects consumers' interests by providing information and advice; authorized to bring collective actions in the interests of consumers (cf. § 2 of Statute).	District court Erfurt

criticism

Despite a positive declaratory judgment of a model declaratory action, each individual injured party must then take legal action against the defendant in order to assert his claims for damages. A negative judgment is theoretically possible despite a positive sample complaint judgment. Critics fear that the supposedly overloaded German courts will be flooded with individual complaints. Alternatives to this would be settlements ordered by the court , subsequent arbitration proceedings or automated payment orders .

The fact that only selected associations are allowed to bring model declaratory actions and injured parties are not allowed to join together as a group that brings suit themselves has also met with criticism. The German legislator wants to prevent a class action industry like the one in the USA, where law firms bringing legal action are also profit-sharing. For the plaintiff association, there is a risk of litigation costs and possibly also a liability risk vis-à-vis the consumers listed in the complaint register if the judgment is negative, for example due to negligence on the part of the association.

In addition, the model declaratory action is so far only possible for consumers . However, since small and medium-sized companies are often affected in the same way as consumers (such as in the diesel scandal ), it is criticized that this group of people is not entitled to sue .

The 72nd German Juristentag from September 26 to 28, 2018 in Leipzig (DJT) dealt with collective legal protection in procedural law. The resolutions passed mainly against the model declaratory action regulated in Sections 606 ff. Of the Code of Civil Procedure (ZPO). This result is not surprising. The 70th Annual Meeting of the Presidents of the Higher Regional Courts, the Court of Appeal and the Federal Court of Justice from May 28 to 30, 2018 in Stuttgart had already announced considerable reservations. At the hearing of the Committee on Legal Affairs and Consumer Protection of the German Bundestag on June 11, 2018, almost all of the experts expressed some very serious criticism. The consumer center for capital investors (VzfK) summarized further points of criticism. The German Juristentag therefore followed the well-known criticism from practice. He gave the model declaratory action a clear rejection and demanded - like the parliamentary group of Bündnis 90 / Die Grünen - a class action. Among other things, it was argued that effective collective redress must go beyond its codification in the code of civil procedure and eliminate the asymmetrical process situations and structural information gaps so that the proceedings can be conducted on an equal footing. This would eliminate a major design flaw in a civil law characterized by private autonomy . For example, the ZPO assumes that the parties conduct proceedings on an equal footing. This also includes unrestricted access to evidence from the sphere of the perpetrator, if the claims cannot otherwise be asserted procedurally. In this case must approximately over § 142 ZPO and §§ 142 147 Corporation Act (AktG) are gone. For this purpose, the discovery in US law offers itself as a regulatory model. In addition, the right of collective actions is a foreign body in a civil law characterized by private autonomy. In addition, the diversity and number of possible litigation situations for a model declaratory action would overwhelm the “qualified institutions” financially and organizationally. Shortly after the adoption, there was a need for further regulation, such as the enforcement of claims for scattered damage . Nevertheless, the Federal Ministry of Justice and Consumer Protection saw no further need for action.

Examples of model declaratory actions in Germany

With the introduction of the model declaratory action on November 1, 2018, the Federation of German Consumer Organizations (VZBV) filed a lawsuit against Volkswagen AG with the Braunschweig Higher Regional Court on the same day . The ADAC supports the declaratory action as a cooperation partner. The aim of the lawsuit is to determine whether owners of certain diesel vehicles with a manipulated exhaust system are entitled to compensation for which the mandatory recall applied and who have not yet filed a lawsuit themselves. If the Higher Regional Court allows the lawsuit, in addition to the car owners concerned, motorists who have already sold or scrapped their diesel vehicles of a certain type from VW, Audi , Škoda or Seat can join in . You can register for this at no cost risk, but ultimately have to sue for compensation yourself. The register will be set up at the Federal Office of Justice .

On January 25, 2019, the first model declaratory proceedings in Germany began before the Stuttgart Higher Regional Court in accordance with the "Law on the Introduction of a Civil Procedure Model Declaration Action", which came into force on November 1, 2018. The Association for the Protection of Bank Customers (SfB) is suing Mercedes-Benz Bank for opaque information on revocation of loan agreements for car financing . On March 20, 2019, the Stuttgart Higher Regional Court rejected the model declaratory action as inadmissible because the plaintiff SfB did not meet the requirements of Section 606 ZPO.

literature

• Timo Gansel, Andreas Gängel: First Aid for pattern declaratory action , CH Beck , Munich 2018, ISBN 978-3-406-73307-9 .
• Introduction of a model declaratory action - Compatibility with civil procedural bases, in:
• Erich Waclawik: Die Musterfeststellungsklage, in: Neue Juristische Wochenschrift 2018, ISSN  0341-1915 , pp. 2921-2926.
• Martin Weimann: Collective Legal Protection: A Memorandum of Practice , De Gruyter, 2018, ISBN 978-3-11-060761-1 .
• Christian Nordholtz / Martin Mekat (eds.): Nomos-Praxishandbuch Musterfeststellungsklage, introduction | Advice | Design, Nomos Verlag, 1st edition 2019 (publication date November 2018), ISBN 978-3-8487-5255-3 .

Web links

Wiktionary: model declaratory action  - explanations of meanings, word origins, synonyms, translations

• bundesregierung.de: Easier enforcement of rights , information on the model declaratory action
• Law on the introduction of a civil procedural model declaratory action (MuFKlaG) of July 12, 2018, buzer.de

Individual evidence

1. ↑ Law introducing a civil procedural model declaratory action of July 12, 2018 ( Federal Law Gazette I p. 1151 , PDF)
2. ^ Coalition wants to introduce model declaratory action Website of the German Bundestag. Retrieved September 7, 2018.
3. ↑ Green light for model declaratory action on the website of the German Federal Council. Retrieved September 7, 2018.
4. ↑ OJ. L 201/60 of July 26, 2013
5. ↑ Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the implementation of the Commission Recommendation of 11 June 2013 on common principles for collective injunctive and compensation proceedings in the Member States in the event of violations of rights guaranteed by Union law ( 2013/396 / EU) Brussels, January 25, 2018
6. ↑ ^{a b c d} draft law of the parliamentary groups of the CDU / CSU and SPD of a law introducing a civil procedural model declaratory action (PDF) BT-Drucksache 19/2507 of June 5, 2018
7. ↑ New framework conditions for consumers: Commission strengthens consumer rights in the EU and their enforcement European Commission, press release of April 11, 2018
8. ↑ High expectations of the “New Deal for Consumers” website of the Federation of German Consumer Organizations , June 25, 2018
9. ↑ Waldemar Hummer : “Collective legal protection” in the EU versus “class actions” based on the US model EU-Infothek, October 22, 2013
10. ↑ Proposal for a directive of the European Parliament and of the Council on representative actions to protect the collective interests of consumers and to repeal Directive 2009/22 / EC April 11, 2018
11. ^ Benedikt Windau: The "collective action" planned by the EU Commission - an overview April 22, 2018
12. ↑ Model declaratory action : Advice for consumers, Deineklage.de. Retrieved September 7, 2018.
13. ↑ Model declaratory action against VW comes on de-betrieb.de, article from September 12, 2018
14. ↑ Basics of the model declaratory action. In: Juraexamen.info - online magazine for law studies, state exams and legal clerkship. November 21, 2018, accessed December 10, 2018 . 
15. ↑ Erich Waclawik: The model declaratory action . In: New legal weekly . 2018, p. 2921-2926 .
16. ↑ Christian Nubbemeyer: Press Release: pattern declaratory action nationally focused at OLG Hamm. (PDF) (No longer available online.) Higher Regional Court Hamm, October 19, 2018, archived from the original on October 20, 2018 ; accessed on October 19, 2018 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  
17. ↑ Federal Office of Justice: List of qualified institutions in accordance with Section 4 of the Injunctive Action Act (UKlaG) Status: January 1, 2018, accessed on September 13, 2018
18. ↑ A progress - not a panacea Tagesschau.de. Retrieved September 7, 2018.
19. ↑ Rupert Bellinghausen, Mirjam Erb: Collective legal protection: German model declaratory action vs. EU representative action in May 2018
20. ↑ Directive 2009/22 / EC of the European Parliament and of the Council of April 23, 2009 on injunctions for the protection of consumer interests (PDF) OJ. L 110 of May 1, 2009, p. 30
21. ↑ ^{a b} Federal Office of Justice: List of qualified institutions in accordance with Section 4 of the Injunctive Action Act (UKlaG). Retrieved June 6, 2019 . 
22. ↑ Consumers versus companies on deutschlandfunk.de, article from June 12, 2018
23. ↑ New dispute in the grand coalition about better consumer rights of action on handelsblatt.com, article from June 4, 2018
24. ↑ More legal protection - no litigation industry zdf.de. Retrieved September 7, 2018.
25. ↑ Thomas Reutemann: Model declaratory action in the diesel scandal - advantages & disadvantages ?! Retrieved October 22, 2018 . 
26. ↑ Theses of the reviewers and speakers. (PDF) Retrieved October 18, 2018 . 
27. ^ Resolutions of the 72nd German Lawyers' Conference. (PDF) Retrieved October 18, 2018 . 
28. ↑ Press release from the Higher Regional Court Stuttgart from May 30, 2018. Accessed on October 18, 2018 . 
29. ^ Report on the committee's homepage. Retrieved October 18, 2018 . 
30. ^ Opinions of the experts. Retrieved October 18, 2018 . 
31. ↑ hib 299/2018 of June 12, 2018 with a report from the hearing. Retrieved October 18, 2018 . 
32. ↑ criticisms of VzfK on the establishment of a model action. (No longer available online.) Archived from the original on October 19, 2018 ; accessed on October 18, 2018 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  
33. ↑ Press release of the Bundestag parliamentary group of Bündnis 90 / Die Grünen from September 28, 2018. Retrieved October 18, 2018 . 
34. ↑ With further details: Weimann, Collective Legal Protection - a Memorandum of Practice. In: Verlag de Gruyter Berlin 2018. Retrieved on October 18, 2018 . 
35. ↑ The further development follows. (No longer available online.) In: kollektiverrechtsschutz.de. Archived from the original on October 19, 2018 ; accessed on October 18, 2018 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  
36. ↑ Dietmar Neuerer: Ryanair in its sights - coalition wants to strengthen consumer rights in the event of flight delays. In: Handelsblatt. August 27, 2018, accessed October 18, 2018 . 
37. ↑ Dietmar Neuerer: Ministry of Justice slows down the strengthening of air passenger rights. In: Handelsblatt. October 3, 2018, accessed October 18, 2018 . 
38. ↑ Model declaratory action: questions and answers. , adac.de, October 31, 2018, accessed on November 1, 2018.
39. ↑ The lawsuit intended to scare VW. In: sz.de , November 1, 2018.
40. ↑ Heike Jahberg: Consumer advocates bring lawsuit against VW on the way. In: tagesspiegel.de. 1st November 2018.
41. ↑ Consumer advocates have filed a lawsuit against VW. In: Spiegel Online , November 1, 2018.
42. ↑ First sample assessment procedure started at the Stuttgart Higher Regional Court. In: Welt Online . January 25, 2019, accessed January 25, 2019 . 
43. ↑ OLG Stuttgart judgment of March 20, 2019 - 6 MK 1/18. Retrieved March 17, 2019 . 

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