1. Introduction
Swiss civil procedural law today only provides for very limited possibilities of collective redress, which the Swiss Federal Council has recognized in a report back in 2013 as insufficient. However, the issue of how exactly collective redress shall be strengthened is highly controversial. A first proposal by the Federal Council was rejected by Parliament in 2014. Relevant amendments were also initially included in the draft of the revised Civil Procedure Code (CPC) in 2018, but the Federal Council refrained from putting them to vote, fearing a rejection of the revision as a whole by Parliament. In December 2021, the Federal Council published a new proposal for broadening instruments of collective redress in the CPC, which will now be debated in the Parliament.
This proposal is in line with the latest developments in the EU, where a Directive (2020/1828) on representative actions for the protection of the collective interests of consumers came into force at the end of 2020 and must be transposed into national law by the EU member states by 25 December 2022. However, the draft goes less far than the EU Directive in that it refrains from introducing the facilitation of proof for damages claims, state registration and the possibility of funding certain associations or their claims.
2. Specific proposals by the Federal Council
The CPC currently only provides for one instrument of collective redress — the group action pursuant to its article 89 — which due to its very limited scope is not very relevant in practice today. The proposal provides for an extension of the scope of application and the available relief of this group action, and it introduces a new possibility for reparatory group actions as well as court-approved collective settlements. Moreover, it includes a new provision regulating the jurisdiction for such group actions and collective settlements.
a. Extension of the existing group action
The group action currently provided for in article 89 CPC is restricted to violations of personality rights and does not offer collective redress in other areas of private law. Moreover, the redress is limited to prohibiting an imminent violation, putting an end to an ongoing violation, or to establishing the unlawful character of a violation if the latter continues to have a disturbing effect. No reparatory claims may be raised by means of this group action. Lastly, such group action may only be filed by associations and other organizations of national or regional importance that are authorized by their articles of association to protect the interests of a certain group of individuals.
The Federal Council now proposes to expand the scope of this group action with regard to the following points:
(A) The scope of application of the group action shall be broadened to all areas of private law. With respect to the subject matter, the Federal Council’s proposal thus goes further than the EU Directive, which only covers consumer protection.
(B) The possibility to apply for notification of the decision to third parties or for publication shall be introduced and declaratory action could also be sought if the violation no longer has a disruptive effect.
(C) Group actions could only be filed by organizations that: (1) are non-profit-oriented; (2) have existed for at least 12 months at the time the action is brought; (3) are empowered by statute or by their articles of association to protect the rights and interests of the group of persons affected; and (4) are independent of the defendant. Unlike current practice, the organizations would no longer be required to be “of national or regional importance”, allowing foreign organizations also to act as plaintiffs.
b. New reparatory group action
More importantly, the proposal provides for a new reparatory group action, thus introducing the possibility to bring claims for damages, moral compensation, or disgorgements of profits by means of a group action. Such reparatory group action would, however, be subject to special requirements: (1) the plaintiff organization has to fulfill the requirements set out above under (C) (or other requirements set out by special laws); (2) it has to obtain authorization from at least 10 persons affected by the damaging event in order to conduct the litigation; and (3) the claims for damages must be based on similar facts or legal grounds.
It is important to emphasize that the Federal Council explicitly refrained from creating a representative class action based on the US model. As a consequence, the scope of the proposed reparatory group action would in principle only extend to persons participating in the proceedings and not to persons who did not actively join the group action (so-called opt-in concept). When a reparatory group action is filed, the court would, as a first step, examine whether the relevant requirements are fulfilled in the context of a certification procedure. If so, the certification of the group action would be publicly announced and all persons affected by the damaging event could join the reparatory group action within a period of at least three months. Individuals would in principle only be bound by the court judgement based on such declaration of accession.
c. Court-approved collective settlements
The proposal puts a particular focus on court-approved collective settlements, which may be concluded either within the context of group action proceedings or outside of it. In fact, the proposal provides that unlike in ordinary proceedings, it shall be mandatory for the court to invite the parties to a settlement hearing in the context of group action proceedings.
In the context of class action proceedings, the proposal provides for the procedure and the requirements for approval of such settlements by the court. The parties, i.e., the plaintiff organization and the defendant, may submit to the court a joint application for approval of a settlement. The affected group members shall then have the opportunity to comment on the content of the settlement. The court would then examine the settlement, for which it could, for example, call in third-party experts. The court may only approve the settlement if, among others, it is convinced that the settlement is an appropriate solution of the dispute in terms of the amount of compensation and allocation of costs. If the court approves the settlement, it would be binding on all affected parties who joined the group action.
The proposal also provides for a so-called opt-out settlement, which may extend to affected parties who did not join the group action. This would, however, only be possible within very narrow limits. Thus, the plaintiff organization and the defendant may file a joint request to extend the binding effects of the settlement to all affected persons domiciled or headquartered in Switzerland. Such joint request may only be granted if: (1) certain formal requirements are fulfilled; (2) the case concerns so-called dispersed damage, i.e., cases in which the individual claims of the affected persons are so small that individual lawsuits would not be worth pursuing; and (3) a significant number of the affected group members have not actively joined the group action. Affected persons who do not wish to be bound by the settlement would then have to declare their withdrawal within a certain deadline.
The proposal also provides for the possibility of a court-approved opt-out settlement outside of group action proceedings, but only in cases of dispersed damage. The proposed requirements are that (1) the group members are represented by an organization entitled to bring group actions; (2) the claims for compensation are based on similar facts or legal grounds; and (3) individual claims for compensation are so small that an individual action would not be worth pursuing.
The approval of the settlement by the court may not be appealed by the affected persons.
d. Jurisdiction
The proposal also provides for specific rules on the international and territorial jurisdiction for group actions. Thus, the courts at the domicile or seat of the defendant, or the place in which the claim of at least one of the affected persons could be brought, shall have jurisdiction. In addition to this, for approvals of settlement agreements, the courts at the seat of the plaintiff organization shall be competent.
In principle, this also applies if not all persons involved are domiciled or have their registered office in Switzerland or if the damage has partly occurred abroad. However, in the event that the Lugano Convention applies, the Convention will take precedence over these new provisions on jurisdiction for group actions.
3. Next steps
As stated, this is not the first attempt to broaden instruments of collective redress in Switzerland. In fact, the Federal Council in 2013 already noted that the current instruments provided for in Swiss civil procedural law are insufficient. However, it has proven very difficult to agree on how this issue shall be addressed, and the feedback on this new proposal published in December 2021 has been mixed. The Parliament will now debate and may amend this proposal, which is therefore by no means set in stone. It remains to be seen whether ultimately an agreement on the best approach to this controversial topic can be found.
